The Negative The Negative ExternalitiesExternalities

of “Immorality”of “Immorality”The Case of Same-Sex The Case of Same-Sex

MarriageMarriageAristides N. HatzisAristides N. Hatzis

University of AthensUniversity of AthensDepartment of Philosophy & History of ScienceDepartment of Philosophy & History of Science

University of BolognaFriday, Feb. 13, 2004

FamilyFamily

MarriageMarriage

© Washington Post

Western Europe & CanadaWestern Europe & Canada

Most countries in the 15-member Most countries in the 15-member European Union recognize the European Union recognize the cohabitation of homosexuals as a cohabitation of homosexuals as a “domestic partnership”“domestic partnership”

In Canada, the British Columbia In Canada, the British Columbia Court of Appeals recognized same-Court of Appeals recognized same-sex marriage in May 2003. sex marriage in May 2003.

U.S.A.U.S.A.

Baker v. State Vermont Supreme Court (1999)Baker v. State Vermont Supreme Court (1999)

““[T]he State is constitutionally required to extend [T]he State is constitutionally required to extend to same-sex couples the common benefits and to same-sex couples the common benefits and protections that flow from marriage under protections that flow from marriage under Vermont law.”Vermont law.”

““Whether this ultimately takes the form of Whether this ultimately takes the form of inclusion within the marriage laws themselves or inclusion within the marriage laws themselves or a parallel "domestic partnership" system or some a parallel "domestic partnership" system or some equivalent statutory alternative, rests with the equivalent statutory alternative, rests with the Legislature.”Legislature.”

Goodridge v. Department of Public Goodridge v. Department of Public

HealthHealth Massachusetts Supreme Judicial CourtMassachusetts Supreme Judicial Court (2003)(2003)

““[B]arring an individual from the [B]arring an individual from the protections, benefits, and obligations of protections, benefits, and obligations of civil marriage solely because that person civil marriage solely because that person would marry a person of the same sex would marry a person of the same sex violates the Massachusetts Constitution.”violates the Massachusetts Constitution.”

““We construe civil marriage to mean the We construe civil marriage to mean the voluntary union of two people as spouses, voluntary union of two people as spouses, to the exclusion of all othersto the exclusion of all others.”.”

Goodridge v. Department of Public Goodridge v. Department of Public

HealthHealth Massachusetts Supreme Judicial CourtMassachusetts Supreme Judicial Court (2003)(2003)

““[T]he right to marry means little if it [T]he right to marry means little if it does not include the right to marry the does not include the right to marry the person of one’s choice, subject to person of one’s choice, subject to appropriate government restrictions in appropriate government restrictions in the interests of public health, safety the interests of public health, safety and welfare.”and welfare.”

“Our obligation is to define the liberty of all,

not to mandate our own moral code.”

Is this a Rights issue?Is this a Rights issue?

Richard Posner (2003)Richard Posner (2003)

““[A]ny person who wants a marriage license has a strong [A]ny person who wants a marriage license has a strong presumptive right to it regardless of how the person defines presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male the kids, or a homosexual male who wanted three male spouses.”spouses.”

““[I]f a man wanted to marry his sterile sister, his eighty-year-old [I]f a man wanted to marry his sterile sister, his eighty-year-old grandmother, three other women, two men, and his chihuahua, grandmother, three other women, two men, and his chihuahua, a court would have to turn somersaults to come up with a a court would have to turn somersaults to come up with a ‘compelling state interest’ that would forbid these matches.”‘compelling state interest’ that would forbid these matches.”

Elizabeth EmensElizabeth EmensUniversity of ChicagoUniversity of Chicago

She suggests that “we view this She suggests that “we view this historical moment, when same-sex historical moment, when same-sex couples begin to enter the institution couples begin to enter the institution of marriage, as a unique opportunity of marriage, as a unique opportunity to question the mandate of to question the mandate of compulsory monogamy.”compulsory monogamy.”

Elizabeth F. Emens, “Monogamy's Law: Elizabeth F. Emens, “Monogamy's Law: Compulsory Monogamy and Polyamorous Compulsory Monogamy and Polyamorous Existence”, Existence”, New York Review of Law & Social New York Review of Law & Social ChangeChange (2004) (2004)

Moral externalitiesMoral externalities

““I am dubious about interpreting the I am dubious about interpreting the Constitution to authorize the Supreme Constitution to authorize the Supreme Court to make discretionary moral Court to make discretionary moral judgments that offend dominant public judgments that offend dominant public opinion […] The exercise of so opinion […] The exercise of so freewheeling a judicial discretion in the freewheeling a judicial discretion in the face of adamantly opposed public face of adamantly opposed public opinion would be seriously opinion would be seriously undemocratic.”undemocratic.”

(Posner 2003)(Posner 2003)

Marriage as ContractMarriage as Contract

““The central institution of the The central institution of the family is marriage, a relationship family is marriage, a relationship that hovers uneasily at the that hovers uneasily at the border of contract. So a chapter border of contract. So a chapter on family law is a natural sequel on family law is a natural sequel to one on contract law.”to one on contract law.”

(Posner EAL 6(Posner EAL 6thth ed.: 145) ed.: 145)

Posner (1983)Posner (1983) moral monstrousness: “the utilitarian moral monstrousness: “the utilitarian

readiness to sacrifice the innocent readiness to sacrifice the innocent individual on the altar of social need” individual on the altar of social need” (Posner 1983: 57)(Posner 1983: 57)

wealth maximization “involves greater wealth maximization “involves greater respect for individual choice” (respect for individual choice” (id.id. 66) 66)

““the right cannot be extinguished or the right cannot be extinguished or transferred without the owner’s transferred without the owner’s consent” (consent” (id.id. 70) 70)

Moral externalitiesMoral externalities

A part of the cost of the voluntary but A part of the cost of the voluntary but “immoral” activity spills over onto “moral” “immoral” activity spills over onto “moral” people.people.

This external cost is greater when this This external cost is greater when this activity goes against conventional morality.activity goes against conventional morality.

The state should intervene in order to The state should intervene in order to protect the offended majority, by making protect the offended majority, by making the immoral people internalize the cost of the immoral people internalize the cost of their immorality, enhancing overall welfare.their immorality, enhancing overall welfare.

John Stuart Mill (1859)John Stuart Mill (1859)

““[T]he sole end for which mankind are [T]he sole end for which mankind are warranted, individually or collectively, in warranted, individually or collectively, in interfering with the liberty of action of any interfering with the liberty of action of any of their number, is self protection.”of their number, is self protection.”

(Mill 1859: 1.9)(Mill 1859: 1.9)

““There are many who consider as an injury There are many who consider as an injury to themselves any conduct which they have to themselves any conduct which they have a distaste for, and resent it as an outrage to a distaste for, and resent it as an outrage to their feelings […] But there is no parity their feelings […] But there is no parity between the feeling of a person for his own between the feeling of a person for his own opinion and the feeling of another who is opinion and the feeling of another who is offended at his holding it; no more than offended at his holding it; no more than between the desire of a thief to take a between the desire of a thief to take a purse and the desire of the right owner to purse and the desire of the right owner to keep it.”keep it.”

(Mill 1859: 6.12).(Mill 1859: 6.12).

The Economic ApproachThe Economic Approach

““[I]t is not clear to me that [I]t is not clear to me that conventional economic theories of conventional economic theories of externalities have much, if externalities have much, if anything, to offer on the problem.anything, to offer on the problem.””

(Trebilcock 1993: 66 – referring to (Trebilcock 1993: 66 – referring to the negative externalities caused by pornography)the negative externalities caused by pornography)

Meckling & JensenMeckling & Jensen(1980)(1980)

External effectsExternal effects

Physical effectsPhysical effects

Value effectsValue effects

Holderness, Jensen & Holderness, Jensen & MecklingMeckling

(2000)(2000)

Scarce rightsScarce rights

Non-Scarce RightsNon-Scarce Rights

Transaction CostsTransaction Costs

Holderness (1985, 1989)Holderness (1985, 1989)

A class is closed when persons can A class is closed when persons can enter the class -and thus obtain the enter the class -and thus obtain the right- only by first purchasing the right- only by first purchasing the right from a current class member.right from a current class member.

A class is open when entry to it is A class is open when entry to it is unrestricted.unrestricted.

Open class & transaction Open class & transaction costscosts

The larger the class of rights-holders, the The larger the class of rights-holders, the greater will be the transaction cost of greater will be the transaction cost of arranging an exchange, because the arranging an exchange, because the prospective immoral person must prospective immoral person must negotiate with each individual who has negotiate with each individual who has been assigned rights to the life of third been assigned rights to the life of third parties.parties.

““The delimitation of rights is an essential prelude The delimitation of rights is an essential prelude to market transactions” (Coase 1960: 8)to market transactions” (Coase 1960: 8)

ConclusionConclusion

The assignment of rights to the moral The assignment of rights to the moral majority under the assumption that this majority under the assumption that this would maximize total welfare undermines the would maximize total welfare undermines the Coasean dynamics because of the creation of Coasean dynamics because of the creation of open classes of right holders.open classes of right holders.

The external effects that immorality can The external effects that immorality can create are value effects, not physical effects.create are value effects, not physical effects.

The right to marry in particular is not a The right to marry in particular is not a scarce right and exercising the right to scarce right and exercising the right to marry does not preclude anyone else from marry does not preclude anyone else from doing the same.doing the same.

Thank you!Thank you!

Aristides N. HatzisAristides N. Hatzis

University of AthensUniversity of Athens

ahatzis@phs.uoa.grahatzis@phs.uoa.gr

http://www.phs.uoa.gr/ahatzihttp://www.phs.uoa.gr/ahatziss

Joe: You're NOT a girl! You're a GUY! Why would a guy wanna marry a guy?Jerry: Security!

Tony Curtis & Jack Lemmon in Some Like It Hot (1959)Screenplay: Billy Wilder & I.A.L. Diamond.