Justice is done—and done the right way—in SCOTUS' decision on marriage equality

Mark D. White

Ssm flagsToday the Supreme Court of the United States—now, thanks to Justice Scalia's dissent in yesterday's King v Burwell dissent, "officially" known as SCOTUS—declared marriage to be a right for all, covering both same-sex and opposite-sex couples. In his majority opinion, Justice Kennedy affirms same-sex marriage to be a matter of rights and dignity; Chief Justice Roberts, in his dissent, regards it as a matter of policy best left to the voters.

I agree with Kennedy, as I explain at Psychology Today. For more details on the opinions themselves (found here), I recommend Orin Kerr's summary at The Volokh Conspiracy.

My personal debt to Gary Becker (RIP)

Mark D. White

BeckerI was very sad to hear of Professor Gary Becker's passing. Although I never met him, and heard him speak only once, he had a tremendous impact on my life and career.

As an undergraduate economics major in college, I was focusing on monetary economics and anticipating a career with the Federal Reserve -- I wasn't even thinking of graduate school at that point. And like many an economics geek, I would confuse amaze my friends by applying reasoning based on marginal benefit and cost to everything in their lives, advising them (for instance) to ignore the sunk costs of "everything they'd put into a relationship" and focus on whether they were likely to derive positive net benefit from it going forward.

Oh how they mocked me.

But then two things happened. One was the publication of Richard Posner's book Sex and Reason, which applied basic economic reasoning to a variety of sexual topics. The other was Gary Becker's being awarded the Nobel Prize and my subsequent introduction to his work on crime, discrimination, and the family.

Validation at last! Here were two brilliant scholars, at the top of their fields, applying economic reasoning to topics other than the traditional subject matter of undergraduate economics: interest rates, GDP, and widgets. I loved the internal logic of economics since my sixth-grade teacher Mr. Dalton drew a supply-and-demand diagram on the chalkboard, but I was bored by the topics to which it was normally applied in my college classes. And here were Becker and Posner, doing interesting things with economics -- dare I say, sexy things -- and being heralded for it!

Furthermore, they showed me that I could have an academic career studying these things using economics. So I forgot about Alan Greenspan's job and instead applied to graduate schools (which I would have had to do anyway, but I hadn't thought that far ahead yet). My eventual graduate program didn't focus on "Becker topics," so instead I took the full range of microeconomics courses to get the basic modeling techniques under my fingers. And while I wasn't working on marriage or crime as I progressed toward my PhD, I did always have them in the back of my mind -- and I would include these topics in the introductory economics courses I taught in graduate school and beyond.

By the time I addressed topics like marriage and the family in writing, it was as part of a critique of the ethical foundations of mainstream economics. The same topics that fascinated me and drew me into academic economics as an undergraduate later frustrated me because of the difficulty mainstream economics had dealing with their inherent normativity. People don't help their family members and obey the law simply because the expected payoff exceeds the expected cost -- there's often more to it than that, ethical factors that are not easily reducible to raw utility. Economics has a valuable perspective to offer on these issues, although it is neither complete nor dispositive.

But, I repeat, it is valuable. And for that value, anyone who studied topics such as crime, discrimination, and the family -- or economics in general -- owes Professor Becker a tremendous debt of gratitude. My personal debts go much deeper, of course: I thank him for showing me a new avenue for my curiosity and, indirectly, for inspiring my shift to philosophy to supplement the economic approach he helped to teach me. Rest in peace, sir.

Same Sex Marriage in Virginia -- Ciao!

By Jonathan B. Wight

Virginia’s same sex marriage ban—which was written into the commonwealth’s constitution in 2006—was overturned yesterday by a United States District Court in Norfolk.  The ruling was stayed subject to appeal. 

The new Attorney General for Virginia, Mark Herring, refused to defend the law because he thought it violated the U.S. Constitution.  He got into hot water for appearing to politicize his office, but I don’t think he had a choice. If the law really is unconstitutional, as he believes, he would be wasting taxpayer money defending it.  

While it might be preferable to enact change through the political process rather than the legal process, this issue really is about basic human rights as codified into law.  The Virginia Constitutional amendment was particularly odious, banning people from engaging in private contracts that would simulate a marriage. 

Why would the state wish to discourage private contracts for settling relationships like estates, health directives, and so on?  The answer cannot be paternalism, unless you believe people enter into such contracts in ignorance of their design.  Rather, the amendment is denying others rights simply on the basis of their sexual status; it is spiteful.  Good riddance. 

David Brooks on same-sex marriage, freedom, and individualism in The New York Times

Mark D. White

In his New York Times column today, David Brooks hails the movement for same-sex marriage as an admirable step away from personal freedom and autonomy:

...last week saw a setback for the forces of maximum freedom. A representative of millions of gays and lesbians went to the Supreme Court and asked the court to help put limits on their own freedom of choice. They asked for marriage.       

Marriage is one of those institutions — along with religion and military service — that restricts freedom. Marriage is about making a commitment that binds you for decades to come. It narrows your options on how you will spend your time, money and attention.

Consistent with his views of individualism (which I've critiqued here and here), Mr. Brooks seems to have an overly simplistic view of freedom and autonomy, such as when he writes that "far from being baffled by this attempt to use state power to restrict individual choice, most Americans seem to be applauding it." Certainly, by marrying, people do give up some basic liberties to each other, but this is a choice freely made—and it is a choice to which gays and lesbians want access just as straights have long enjoyed. In other words, gays and lesbians want the higher-level freedom to restrict their own lower-level freedom (recalling Harry Frankfurt's conception of freedom of the will in which persons constrain their first-order desires based on their second-order ones). Marriage doesn't represent a diminuition of freedom: it is a higher level of it.

He goes on to say, "Americans may no longer have a vocabulary to explain why freedom should sometimes be constricted, but they like it when they see people trying to do it." Perhaps if Mr. Brooks expanded his conception of individual freedom to encompass the choice to constrain yourself, he'd see that Americans understand it extremely well—when that choice is ours. We choose to marry (or form long-lasting relationships), take jobs, enter into contracts, enroll in college, and make all types of commitments to family, friends, and community, all of which restrict our personal freedom. But they are choices that we freely make for any number of reasons, some out of self-interest and others out of a broader morality, and we welcome the opportunity to make these choices—a choice, in the case of marriage, that not all Americans currently enjoy.

The conclusion of Mr. Brooks' column conflates individual choices to make commitments with social pressure to do so:

And, who knows, maybe we’ll see other spheres in life where restraints are placed on maximum personal choice. Maybe there will be sumptuary codes that will make lavish spending and C.E.O. salaries unseemly. Maybe there will be social codes so that people understand that the act of creating a child includes a lifetime commitment to give him or her an organized home. Maybe voters will restrain their appetite for their grandchildren’s money. Maybe more straight people will marry.       

The proponents of same-sex marriage used the language of equality and rights in promoting their cause, because that is the language we have floating around. But, if it wins, same-sex marriage will be a victory for the good life, which is about living in a society that induces you to narrow your choices and embrace your obligations.

My idea of the good life derives from Immanuel Kant's kingdom of ends, a world in which each of us embraces obligations to each other while we pursue our own interests, narrowing our choices as each of us chooses, not as society "induces" us. Mr. Brooks' alternate vision reflects his limited view of individualism as base self-interest in which moral imperatives must be imposed by outside, not necessarily by government but through societal pressure. The question, of course, remains why individuals should trust the wisdom of the crowd for their moral guidance.

Supreme Court to pronounce on Defense of Marriage Act (DOMA) and California's Section 8

Mark D. White

Just announced: the Supreme Court will decide the constitutionality of the federal Defense of Marriage Act and California's Proposition 8. See the live blog at SCOTUSblog (or upcoming analysis soon, I'm sure) for more.

Needless to say, I'm thrilled about this, given a) my support of same-sex marriage and b) my firm position that the controversy over same-sex marriage should be settled by the courts (see earlier posts such as this one for more).

SCOTUSblog on the same-sex marriage issue

Mark D. White

SsmLyle Denniston at SCOTUSblog has begun a four-part series on the impending same-sex marriage controversy at the Supreme Court. From the introduction to his first post (discussing the role that constitutional standards will play in any such case):

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

(Thanks to Robert Loerzel and Felicia Yonter on Twitter from the link.)

Obama Endorses Same-Sex Marriage

Jonathan B. Wight

President Obama today endorsed same-sex marriage. I was surprised. He has equivocated for so long, has squirmed and slithered on this and other issues, I was expecting him to hide out during his re-election to avoid offending anyone.

Obama may have made the political calculation that coming out will win him some swing states, despite North Carolina's vote this week to ban same-sex unions. The overall evidence is mixed:

[A]ccording to the pollster Andrew Kohut of the nonpartisan Pew Research Center, a plurality of swing voters favors same-sex marriage, 47 percent to 39 percent, and outside the South the margin widens to a majority of 53 percent in favor and 35 percent opposed; in the South, a plurality of 48 percent opposes same-sex marriage.

The biological, sociological, and psychological evidence is not as mixed, however. Being homosexual or heterosexual is not a choice. No one had to tell me I was attracted to the opposite sex: I knew at age 5 when I instinctively went for the girly magazines in Washington D.C.'s Union Station. Of course, I didn't have any money to buy and my parents quickly shooed me away. I presume others had similar experiences.

The decline of marriage as an institution is a tragic thing, especially for children. There is no evidence I know of that gays had anything to do with this. If gay people join in long term committed relationships this makes society more stable for children.

Government should not be in the marriage business, anyway. Government should provide legal unions that protect people's civil rights. Churches can decide what criteria they use to create a marriage. Let a thousand flowers bloom.

[Photo credit: Covent Garden flower stall, 2008, JBW]

Why hasn't social economics focused more on the family?

Mark D. White

A question occurred to me this morning as I did some basic research on alimony after reading Alexandria Harwin's New York Times op-ed "Ending the Alimony Guessing Game": why don't social economists focus more on the family? Ms. Harwin's article interested me more at first due to her discussion of judicial discretion and formulae with respect to alimony determination, but then I dipped my toe into the literature on alimony on JSTOR, and found two primary recent resources: Elisabeth Landes' "The Economics of Alimony" (Journal of Legal Studies, 7/1, 1978) and Ira Mark Ellman's "The Theory of Alimony" (California Law Review, 77/1, 1989). Both take what can be fairly called a neoclassical economic approach to marriage, divorce, and alimony, Landes' paper more obviously than Ellman's (which linked the shifting interpretation of alimony to other trends in family law, especially no-fault divorce--very interesting).

To be fair, a neoclassical approach to alimony is not necessarily inappropriate: upon divorce the former partners do become independent bargaining agents (at least with respect to each other), and alimony is, after all, essentially monetary. Nonetheless, this made me think of all the aspects of the standard economics of the family that, in the interest of facilitating mathematical modelling and scientism, leave out important ethical and social elements--elements which are important in most if not all areas of economic analysis, but surely none more so than the family (understood very broadly as any small and close relationship between persons based on care).

There is some social economics research of the family--for instance, Deb Figart and John Marangos' special issue of Review of Social Economy in 2008 on living standards and social well-being contained some great work on the family--but it just seems there should be more. As I said with respect to law and economics in the past, I can understand social economists' disdain for neoclassical analysis of the family, but why aren't we showing the world that we can offer better insights on what is, at its core, a social issue?

There oughta be a book...  ;)

Marriage equality in New York: It should have been done better.

Mark D. White

Last nigt New York Governor Andrew Cuomo signed a bill allowing same-sex marriage after a lengthy process of legislative tomfoolery. Those who have read my previous posts and work on the issue will not be surprised to hear that I am very happy about the result and less than pleased with the process.

Unlike most, I think issues such as same-sex marriage, which at their core are issues of human rights and dignity, are matters best dealt with by the courts, not the legislature--a small quibble, perhaps, seeing that the just result was achieved, but an important one nonetheless. Just in pragmatic terms, legislation can be overturned much more easily than court decisions. But on principled terms, human rights should never be put to a vote--they should be affirmed by the courts, our designed guardians of principle, rather than a deliberative political body.

One quote from the news report above (from The New York Times) may help make my point:

With his position still undeclared, Senator Mark J. Grisanti, a Republican from Buffalo who had sought office promising to oppose same-sex marriage, told his colleagues he had agonized for months before concluding he had been wrong.

“I apologize for those who feel offended,” Mr. Grisanti said, adding, “I cannot deny a person, a human being, a taxpayer, a worker, the people of my district and across this state, the State of New York, and those people who make this the great state that it is the same rights that I have with my wife.”

Very inspiring, and it helps make a case that popular affirmation of same-sex marriage may be more satisfying symbolically (especially when it involves people changing their minds and supporting it). But it also points out that the people of New York state left it to its state legislature to decide whether gays and lesbians have the same rights that straights have with their spouses. And as we have seen over the weeks this has played out, the successful vote was never assured until last night--a dreadfully uncertain and contingent method for asserting equal human rights and dignity for all.

Same-Sex Marriage Should Be Defended on Moral Terms, Not Economic Ones

Mark D. White

Sociologist Jaye Cee Whitehead (Pacific University) has a wonderful piece in The New York Times today titled "The Wrong Reasons for Same-Sex Marriage," arguing that the recent arguments espousing the economic benefits of same-sex marriage for cash-strapped states and municipalities miss the point:

Those making these economic arguments probably have the best of intentions. After all, why can’t gays and lesbians have full equality, while also saving the state money and bolstering local economies? Aren’t civil rights narratives consistent with the economic case for same-sex marriage? Shouldn’t supporters use all possible arguments in the hopes that at least one will finally stick?

And yet supporting marriage on economic grounds dehumanizes same-sex couples by conflating civil rights with economic perks. Americans should be offended when the value of gays and lesbians is reduced to their buying power as consumers or their human and creative capital as workers.

Why can’t same-sex couples have access to the same rights and protections as their straight neighbors simply because they are citizens? How would we respond if the right to interracial marriage were based on the prospects that these relationships made good business sense or added to the state budget? While economic arguments were certainly advanced during the struggle for African-American civil rights — in the late 1950s, Atlanta’s business-oriented mayor, William B. Hartsfield, promoted his city as being “too busy to hate” — those rationales are not what we think about when we remember that struggle’s highest ideals.

I made a similar point in my paper "Same-Sex Marriage: The Irrelevance of the Economic Approach to Law," aimed more at academic economic arguments than popular ones, but with the same general thesis: that the argument for same-sex marriage is properly a moral one, based on dignity and equality, not an essentially contingent cost-benefit calculation (particularly one based on current economic conditions).