CONSERVATIVE

POLICY

DILEMMAS

What I learned
JONATHAN

at AEI

RAUCH

HE official topic of today's discussion "Should conservatives support same-sex marriage?" is:The unofficial subtitle, at least of my talk, is: "Everything I Know About Gay Marriage, I Learned at the American Enterprise Institute." Though I'm now at the Brookings Institution, my first think tank appointment was at AEI. It was here as a guest scholar that I learned so much from so many of the leading lights of conservatism, and I'd like to think that many of my arguments for gay marriage are, in fact, conservative arguments. Too many people on the Right are panicking instead of thinking when it comes to same-sex marriage. The president of the United States, unfortunately, is someone I put in that category. But it seems to me that if you apply the kinds of principles that I first learned at AEI, and which folks like AEI's president Christopher DeMuth have done so much to advance over the last 20 years, I think you reach two conclusions, or at least I do: The first is that same-sex marriage is an idea that conservatives ought to support. The second is that even if you still reject gay marriage in principle, a national ban on same-sex marriage, which is what the president and many other conservatives are advocating nowadays, is a very unconservative approach. My book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America t is largely about why same-sex marriage is what I call the "trifecta of modern Editor's Note: The essays in this section are adapted from remarks delivered at the American Enterprise Institute Book Forum, "Should Conservatives Favor Same-Sex Marriage?" April 15, 2004. tTimes Books. 207 pp. $22.00. 17

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American social policy": a win, a win, and a win--good for gays, good for communities around them (that is to say, the straight world), and above all, good for the institution of marriage as a whole. If gay marriage is enacted, gay couples will get the legal protections of marriage, but that's hardly the most of it. They also get a more profound love, a destination for love that enriches their lives whether they ultimately get married or not--the knowledge that romantic attachment properly points toward something larger than itself. They also get the enormous personal benefits that marriage alone conveys: Married people are healthier, happier, more prosperous, and more secure. They suffer from less incidence of drug addiction and criminal behavior. They even live longer. Those are things to which gay citizens ought to have access, and in all of these ways, gay Americans will benefit from integration into the culture of marriage. The straight world gets another irreplaceable benefit: the stability that comes from knitting people into families. Indeed, that is what marriage uniquely does: It creates family. I have a cousin right now who is 60 years old, married, and suffering from cancer. Her husband is caring for her throughout the difficult experience of chemotherapy, not just physically but emotionally. Without her husband, I doubt she would be alive. There is simply no substitute for the love and care of a spouse. Even though my cousin's marriage is nonprocreative, I do not think anyone can reasonably say that society has no stake in their union. Since her husband is caring for her, the rest of society does not have to. Above all, the institution of marriage itself is a likely beneficiary of same-sex marriage. This is an opportunity to bolster the ethic and the culture of marriage at a time when society has been abandoning these things. The fundamental principle for all Americans, straight or gay, ought to be that sex, love, and marriage go together, automatically. If you're a straight family with kids, and if a gay couple lives next door, you should want to see them upholding the ideal of marriage. That's good for your kids. (It's also good for their kids, if they have any.) At a time

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when heterosexuals are increasingly treating marriage as purely optional, this is a rare opportunity to arrest our slide down the slippery slope away from marriage and to recommit ourselves to marriage. The problem today is not gay couples wanting to get married. That is not the threat to marriage. The threat to marriage is straight couples not wanting to get married or straight couples not staying married. Same-sex marriage is potentially a dramatic statement that marriage as suchm not cohabitation, not partnership, not anything else--is the gold standard and the model to which all Americans should aspire. Everybody should be expected to make marriage their aim. That doesn't mean they necessarily have to marry, but that it is the noble and right thing to do.

'ERE is an importantand,point fact, do understandshouldmany conservatives be .able to understand in in other contexts: We live in a world of great uncertainty and unintended consequences. We lack a lot of information. The wisest person or committee in the world cannot get everything right and will often make unintended mistakes. How do we make policy in such an uncertain and often surprising world? Modern conservatism has developed some important principles for how to do so, and I'll discuss three of them. The first principle is that individuals count. Conservatives often remind us never to lose sight of the individual. That doesn't mean you consider only individual welfare, but you must consider it, and you must reject a crude utilitarianism that simply sees individuals as means to an end rather than as ends in themselves. Conservatives are generally the first to object to those collectivist policies that relegate individuals to the status of mere human bricks or timber. If you would not confiscate someone's income for the common good, for example, why confiscate their marriage? How many of you would give up your marriage to make someone else's family stronger? And if you're not married, how many of you would give up the opportunity to get married to make someone else's family stronger? Maggie Gallagher, president of the Institute for Mar-

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riage and Public Policy, has written as follows: "Will same-sex marriage strengthen or weaken marriage as a social institution? If the answer is that it will weaken marriage at all, we should not do it" (emphasis added). What's missing in this calculus are the enormous benefits that marriage can bring to 10 or 15 million homosexual Americans who are now locked out of the culture of marriage, which makes individuals happier, wealthier, and more secure in life. Being deprived of marriage, or even the prospect of marriage, is thus a severe hardship for gays. Now, it is true that we must balance social costs against individual benefits. I don't deny that for a moment. That's why we have, for example, securities laws. People will do things that are good for themselves but bad for society. What I am arguing is that Gallagher's way of looking at the problem, which is all too common among conservatives on this one issue, cannot be the correct (or truly conservative) approach. It cannot be right to say that all of the good that is accomplished for l0 to 15 million gay people doesn't count against any harm incurred upon society. That, it seems to me, is not recognizing the value of gay lives. It's sacrificing their rights and interests for a collective good.

HE second conservative principle I learned respect for market forces. How many timesat AEI is have I heard conservatives criticize liberals for mistaking the intention for the deed? Conservatives rightly remind us that tighter regulation of campaign finance, gun ownership, or energy prices does not stop social change. Rather, it distorts the channels through which change runs, often causing adverse unintended consequences. Just saying that you want to make something scarcer, for example, doesn't make regulating or banning it the right answer. Exactly the same thing applies to same-sex marriage, though here the forces at issue are social market forces-arrangements that people are making in their personal lives, in their social lives. These forces can be managed--and should be managed--by society, but they cannot simply be stopped. The fact is that same-sex unions, of one sort

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or another, are here for good. They're not simply going to disappear. Societal recognition of some kind will increasingly follow these committed relationships. Given these new social facts, American society has a strong interest in recognizing the nobility of the commitment these couples are making. And marriage is the best institution we have to accomplish that. The ban on gay marriage favored by many conservatives won't stop societal recognition from flowing to these couples eventually. What it will do is shut marriage out of a new social market. It will effectively convey that this new market, this new demand for recognition, can have anything except marriage. And, of course, if that demand cannot be met by marriage, it will be met by something else. HIS leads me to the third principle I learned at the American Enterprise Institute, which is the importance of managing risk rationally. Suppose it is argued, as many on the Left do, that welfare reform or education and Medicare vouchers are terrible and dangerous policy ideas--so dangerous in fact that they should never, ever be tried, even on the smallest scale. The extreme opposition of liberals to such sensible reforms is akin to the "precautionary principle" favored by some environmentalists, which opposes any change that is not proven in advance to be safe. Well, the precautionary principle turns out not to be conservative at all. It is, in fact, radical, because it looks only at the risks of change and not at the risks of blocking change, which are often greater. We should keep this in mind when thinking about the pros and cons of samesex marriage. There is a significant downside potential of denying same-sex marriage, something the American conservative movement has not fully recognized. The first kind of risk-which is actually closer to a certainty than a mere risk-lies in creating and subsidizing alternatives to marriage: "civil unions," as they're called, or various forms of "domestic partnerships." Absent gay marriage, these various forms of nonmarriages will become legally and socially

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sanctioned in the years ahead. They will offer halfway houses between marriage and nonmarriage, which will, in many cases, depending on how they're designed, offer the benefits of marriage without the responsibilities, the rights without the obligations. Politics in a democratic society being what it is, many of these nonmarriage arrangements will be open to heterosexuals over time if not immediately. In fact, the majority of domestic partnership programs already in place in this country--under the auspices of corporations and state and local governments--are already open to opposite-sex couples. Often, opposite-sex couples are the majority to take advantage of them. And even if these alternatives to marriage were not eventually made available to heterosexuals, their very existence would validate the impression that marriage is just one relationship life style among many others. Such alternative arrangements will inevitably erode the special status that marriage still enjoys. So perhaps, as is often argued by some conservatives, the only choice is to reject even such halfway houses to marriage as civil unions--no gay marriage, no civil unions, no nothing. This would be even worse, because it would mean that the vessel into which gay commitment will flow will be cohabitation. Every gay couple will become a potential advertisement for the possibilities of life outside of marriage. Over time, judges, legislators and society as a whole will accomodate gay couples by conferring marriage rights and social recognition upon cohabitants. And, of course, there is nothing that can prevent straight people from cohabiting as well. A second important downside risk to be considered is that nondiscimination, for better or worse, has become a sacred principle in American public life. It has become part of the nation's civic religion. By banning gay marriage outright--saying not here, not anywhere, not ever-marriage as such may come to be viewed in the public's mind as a discriminatory institution. It once seemed farfetched to say that men would shun elite clubs that discriminated against women, and thus a lot of clubs continued to discriminate against women. Well, of course, nowa-

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days, men-only clubs are rare. They're increasingly marginal in society, and most men wouldn't join one. This is the last thing we would want to see happen to the institution of marriage. Just recently, Benton County, Oregon, stopped issuing marriage licenses, on the grounds that it wanted no part of a discriminatory institution. Over time, as the national consensus moves toward equality for homosexuals, there is a serious risk that marriage will be stigmatized and marginalized if it is legally demarcated as a discriminatory institution.

O what's a truly conservative We're fortunate thethat we approach to social challenge of gay marriage? live in a country that is ideally suited to tackle this kind of problem. In the United States, with its federalist system, marriage traditionally falls within the boundaries of state law. It seems clear that the conservative solution to this issue is to try same-sex marriage in a state or a couple of states that are ready to have it. Let's find out how it works, and see what happens. It is unlikely that the world will end. In fact, the experiment may prove successful and spread for that reason. By taking the federalist approach, the public will get a real sense of what it is doing--without, importantly, imposing a single policy on the whole country. Same-sex marriage should be viewed as an opportunity to shore up the institution of marriage. Flatly banning it cannot possibly be the conservative answer. Thus it is regrettable that, on the issue of gay marriage, some of my conservative friends sound very much like the National Education Association on the subject of school vouchers--unwilling to concede any need for any change, averting their eyes from the plight of the unserved and the misserved, asserting that reform can entail only hazards and no benefits, insisting that even one experiment anywhere ever is one too many, and unwilling to offer alternatives other than wishing the whole issue would go away. My challenge to conservatives today is to stop making gay marriage the exception to their conservative principles.