The fight over the right to outcast

Modern societies are not made of sturdy yeoman farmers, able to provide most things for ourselves. We live in highly interdependent societies, dependant on the civility of strangers for all manner of basic amenities and elementary comforts. Nor do we all live in large, cosmopolitan cities, where another provider is just down the road. Nor is animus randomly distributed. On the contrary, there are quite systematic patterns to animus. Systematic patterns whose burdens fall very unevenly.

Which is why anti-discrimination law has grown up. Partly to signal that previous patterns of systematic animus are not acceptable any more, partly to give the targets of such systematic animus redress, partly to acknowledge their full membership of society. A range of reasons, all tied together by the reality of living in highly interdependent societies, dependant on the civility of strangers for all manner of basic amenities and elementary comforts. 

In doing so anti-discrimination law clashes against an ethic, nowadays typically labelled libertarian, that was based in, and originally extolled, a society of sturdy yeoman farmers, able to provide most things for themselves; a source that is very far from how modern societies work.

Laws such as the recent proposed Kansas (pdf), Tennessee, Idaho, Mississippi and Arizona (and similar) laws are not just generalised defences of religious liberty, they are also something much more specific. The proposed Kansas and Tennessee laws explicitly, and the proposed Arizona, Mississippi and two (pdf) Idaho (pdf) laws more subtly, attempt to enshrine in law that animus against gay folk is still just fine (as even supporters of the Arizona bill agree). To the extent that the second Idaho bill overwhelms freedom of association by effectively frustrating any organisations from making queer inclusiveness policy.

These laws, either in their explicit language or underlying effect, seek to use public policy to protect denying a specific group the elementary civility of strangers--and the amenities and comforts therefrom. To judge them not by the content of their character but by their membership of a category, for the category is deemed to signal their moral character.

This is a view that is collapsing across Western society generally and the US in particular--which no doubt explains why the mainstream Republican Party wants the Arizona bill to go away while major sporting bodies state their support for tolerance and inclusion. It helps provide an answer to the question:

How did we go from “Rasmussen Reports study found that ’85% Think Christian Photographer Has Right to Turn Down Same-Sex Wedding Job,’” to this huge outcry that Arizona is bigoted.

The right to outcast as a public policy looks very different from commercial freedom for individual businesses.

It is also why the rhetoric of segregation--including the term "gay Jim Crow laws"--is cropping up. Just as Jim Crow was about enshrining in law systematic animus against a category of people, these laws do not seek to protect the private realm of religious belief, as did the US Federal Religious Freedom Restoration Act (provisions of the law are here [pdf].) Though that Act still ran into Fourteenth Amendment problems. Instead, these laws seek a religious entitlement to deny goods and services (including some very basic ones) to others: a rather different proposition. Religious liberty being defined as the right to outcast.

Which is where the libertarian defence of the more subtle right-to-outcast bills runs into difficulties.

Four business cases commonly cited were specifically about gay customers. For another way to look at anti-discrimination laws is that they are anti-outcasting laws. Is outcasting OK? is not the same question as whether such outcasting is effective. Still less is should particular forms of outcasting be legally protected? the same question. If the principle that one is trying to defend is that outcasting-by-category is not OK, then being told that such outcasting is not effective is not going to be a persuasive response.

When family is not a refuge
Particularly because the outcasting in question is part of religious outcasting that extends way beyond baking cakes or taking pictures for same-sex weddings. Such outcasting is about the horror and terror of being outcast by friends and family--by one's own parents--in the name of God. It is about throw-away kids, cast out of hearth and home in the name of God. It is about despairing loneliness and rejection that leads to suicide. It is about a religious doctrine that, since sexuality is not chosen and manifests in adolescence (and elements even earlier) cannot be other than a form of child abuse. It is about being made to feel horrible about oneself. The fear (and for many the experience) of being told by one's own parents that one is against God and nature. It is about being cast on the wrong side of a conception of "the natural" that is imposed on a much more complex human and biological reality in the name of truth, regardless of the human cost.

For queer folk, the experience of outcasting has an emotional resonance far deeper, and far more horrifying, than refusing to take photos or bake cakes for a wedding. For when people invoke God as the reason to do that, they are invoking a world of hurt and pain. Including denial that they are entitled to have a life of love and commitment, homosexuals being "called to celibacy" (a usage which is an abuse of the notion of a vocation or calling).

Which puts the anti-discrimination suits cited in defence of "religious liberty" in a clearer context. Yes, I wish they had not been brought if alternative providers were available, and yes there is an element of revenge in the entire debate, but it also about fighting for full status as members of society, a fight behind which lurks deeply personal and intimate emotional abysses of despair and rejection.

And if family is not a refuge, the yeoman-farmer ethic has even less resonance.

Targeting the vulnerable
For that is what make gays, and queer folk generally, such excellent targets for the gatekeepers of righteousness, such excellent targets for outcasting. Their vulnerability--growing up as isolated individuals in overwhelmingly straight families and social milieus--and that they are always with us. The war against human sexual and gender diversity is an endless war, so an endless prop for gatekeepers of righteousness.

Hence many religious folk taking the outcasting of gays as a benchmark of success or failure just as, in previous generations, outcasting Jews was a benchmark of success or failure.

As the post-Kansas backlash in particular, and wider trends more generally indicate, however, the usefully endless war against human sexual and gender diversity may not be so endless after all.

This is what the "religious freedom" legislative push looks like to an outsider. It starts with the Mississippi effort, which passes easily with no fuss. Too little fuss. So the effort shifts to the much more explicitly targeted Kansas and Idaho bills. But that generates far too much of a fuss, so the strategy shifts back to the Mississippi approach. Particularly when even a supporter can note provisions of the Arizona bill:

as fairly sure to generate unintended consequences and unexpected results.

But the backlash is so strong it overwhelms even the Arizona bill, threatening to overwhelm religious exemptions entirely.

Libertarian and conservative supporters of the not-gays-specifically-in-legislation legislation can indeed point to wider and ongoing issues about religious freedom. And it is true that there is a battle of the demagogues going on, in both directions.

Demagoguery made all the easier as there is no trust across the culture wars. Libertarians who try to bridge the gap by casting the issue as being commercial freedom dramatically fail to do so, either through bizarre naivety (such as suggesting that religious exemptions should be brought in along with same-sex marriage: the point is the outcasting, not some mutually acceptable modus vivendi) or because they really don't get the much wider emotional significance for the targets of outcasting.

Part of what is going on is an ongoing display of lack of communication due to people coming from completely different social experiences and networks. (Including whether one is coming to the issue via reacting to the Kansas bill.) We are not societies of sturdy, independent yeoman farmers and family and community cannot be presumed to be refuges. For many folk, the state can be a protector from social predators and that is what they deeply wish it to be. At the very least, they do not want it to be a weapon for, or protector of, outcasting.


[Cross-posted at Skepticlawyer.]

That word, it does not mean what you think it means

In US states such as Kansas, Idaho and Arizona a new legislative push is on to create a religious entitlement to treat (a specific group of) fellow American citizens like crap. What's more, it is being paraded as a defence of religious liberty.

The process kicked off in Kansas, where the lower House passed House Bill No 2453 (pdf), whose short title is AN ACT concerning religious freedoms with respect to marriage. The bill would establish the legal right of any individual or religious organisation to refuse to provide any service to a same-sex couple, even if legally married in another US state provided, it is done on the basis of "sincerely held religious beliefs". It would also ban any anti-discrimination suits by or on behalf of same-sex couples. The Bill passed the Kansas House of Representatives on 12 February 2014 72 votes to 49. (The Kansas Senate leadership appears, however, to have killed the bill; at least in its present form.)

Looking at this legislative push, this is religious "freedom" as entitlement: specifically, the right to outcast (i.e. my freedom means the right to punish you by denying you ordinary amenities of social life). If left wing folk attempt to engage in any form of outcasting, it is "political correctness" and wrong and evil. If religious folk do it in the name of God, however, it is righteous and should be legally protected. Religious "freedom" as entitlement.  Conservatives who buy into this are not against moral bullying, they just want the right to be the moral bullies.

Of course, it is even more hypocritical than that. If Muslim countries seek to engage in various forms of outcasting of Christians, that is also wrong and evil. So, it is not even outcasting in the name of God which is OK, it is such outcasting as {insert specific believers here}  want that is righteous and proper.

At which point, basic classical liberal principles about the indivisibility of freedom come into play.

Consider the basic provision of the Kansas bill:

Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;

How easy it is to shift the focus:

Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held beliefs of the individual or religious entity regarding compassion towards others:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to any form of political or religious activism that opposes equal protection of the law;

That is the political correctness version. Let us try another version:

Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding submission to the will of God:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any religious belief not involving submission to the will of God according to the Quran and the teachings of the Prophet;

The outcasting game, it is one anyone can play. This without changing the profound privileging involved in giving religious belief and religious entities special status. Let us just consider the profound privileging involved in permitting government employees ("any individuals") to refuse government services to residents and citizens based on their religious belief. And to deny any possibility of legal remedy to do so -- since the bill also bans anti-discrimination suits by or on behalf of same-sex couples. This is stripping one set of people of legal standing while creating a massive legal entitlement for others based on a huge sense of religious entitlement.

What makes it all even more blatantly an exercise in entitlement are comments by the Kansas Bill's sponsor, one Representative Charles Macheers, who calls his Bill The Religious Liberties Protection Act:

Discrimination is horrible. It's hurtful ... It has no place in civilized society, and that's precisely why we're moving this bill. There have been times throughout history where people have been persecuted for their religious beliefs because they were unpopular. This bill provides a shield of protection for that.

But, apparently, refusing services to a same-sex couple is not discrimination. Presumably because queer folk are not real people within the conception of Charles Macheers, and so their aspirations and experiences therefore do not count. By banning anti-discrimination suits, the bill blocks courts from declaring such actions discrimination: a truly Orwellian touch.

Which is exactly how such moral exclusion is based on, and creates, an impoverished epistemology: it excludes a whole raft of experiences and facts from counting.

Been here, done that

Since moral exclusion has recurring dynamics, those knowledgeable in the patterns of Jew-hatred should be completely unsurprised to see that queer-hatred generates the same patterns. Just as Jews were castigated as this powerful threat to the Christian/national majority, so queers are a threat to the heterosexual majority. Folk such as Rush Limbaugh say so explicitly and this bill implicitly constructs a Christian majority has having to have its religious freedoms (which turn out to be religious entitlements) defended from a queer minority.

The smaller the minority, the more they have to be constructed as a profound threat in order to justify targeting them. Otherwise, it is blatantly a large majority bullying a small and vulnerable minority and the more utterly arbitrary the God who requires such appears to be. Where Jews were the maleficent minority with huge corrupting powers, now it is the queers. (Who will, for example, corrupt marriage, families and the social order if same-sex couples are permitted into the institution of marriage.)

With the sense of entitlement comes a sense of status: a sense of entitlement and status available to anyone who buys into it. Simply by being not a member of the outcast category, you become effortlessly virtuous, effortlessly entitled, effortlessly of higher status. You may be overweight, not pretty, poorly paid with few prospects, but you are still entitled and virtuous; superior to those God-denying and defying queers (or Jews, or whoever). You are entitled to your contempt and rage at the successful queer couple down the street or the pretty boy who is no doubt getting lots of sex.

The wonder is not that Jew-hatred and queer-hatred have been such easy sells: the wonder is, so may folk fail to buy into it.

Legal entitlement to target the vulnerable

The notion that specific outcasting of homosexual folk is something that the law is entitled to not merely allow people to do, but actually embody itself, has support in the US all the way up to the US Supreme Court and Mr Justice Scalia, as he has stated in public and in his written decisions. Scalia J talks in terms of disapproval of "homosexual conduct" because that is chosen, something people can refrain from doing. Attention is diverted away from the outcasts as people and to them as transgressors.

The fight is very much over defining who is, and who is not, "properly" human. As philosopher Kwame Anthony Appiah puts it:

In much of Europe and North America, in places where a generation ago homosexuals were social outcasts and homosexual acts were illegal, lesbian and gay couples are increasingly being recognized by their families, by society and by the law. This is true despite the continued opposition of major religious groups and a significant and persisting undercurrent of social disapproval. Both sides make arguments, some good, most bad. But if you ask the social scientists what has produced this change, they will rightly not start with a story about reasons. They will give you a historical account that concludes with a sort of perspectival shift. The increasing presence of "openly gay" people in social life and in the media has changed our habits. And over the last 30 years or so, instead of thinking about the private activity of gay sex, many Americans and Europeans started thinking about the public category of gay people.

People are increasingly resisting the epistemological impoverishment of not seeing people as people, with experiences that matter and aspirations that are legitimate.

Denying protection

The distinctive thing about about bigotry is that it does not extend moral protections, it narrows, restricts and denies them. In particular, where it extends the ambit and intensity of moral concern about things and acts it does so in a way that narrows the moral coverage of actual people. It is why outcasting and moral exclusion are so much tied to priests and clerics and to those who aspire to secular equivalent status. Because the role of gatekeeper of righteous, of having the status and authority to say what status people do or do not have in the moral community--who is, or is not, within the moral community--is such a powerful one.

Creating taboos not only creates a sense of community, and a way of signalling belonging to said community, it also reinforces the special knowledge and insight of said gatekeepers by making things one would not otherwise consider morally significant or morally important, desperately so. Bigotry is always based on a theory, often a theory of the human or a theory of social order, and it is theory that excludes--giving authority to the alleged moral knowledge and understanding of the excluders and the status of righteousness to those who buy into the exclusion. So bigotry is also always a moral claim; a claim about who does, or does not, belong the moral community and with what standing.

And what greater sense of entitlement is there than to be able to say who is, or is not, properly human, to decide the standing of as full citizens or not? To declare that not everyone with a human face is human, or that some act defies God or forfeits one's humanity or standing as a member of human society. There is a great sense of social power in having the law justify, exemplify and enforce one's notion of who is outside the community. Doing so on a religious basis is very much about religious entitlement, not religious liberty. But their notion of liberty is to be so entitled.

And entitled in a way which restricts and blights the lives of others.

Scalia J

It may seem too strong a claim, that the standing as human of homosexuals is being denied or traduced. But it is not. For if homosexual desire and love are included as simply variations of the human, then the argument for equal protection of the law follows. It is precisely that such is defined as being outside the "properly" human that there is any argument for entitlement to animus, any entitlement to exclude. As Kwame Anthony Appiah points out, the key is seeing queers as just people. (Or not.)

Which is why those who wish to defend the entitlement to exclude and outcast, such as Scalia J, tend to want to focus on conduct, since that is the alleged wrongness but also is a way in to deny standing as "just folks". With great attention being paid to "burdens" placed on the religious, none at all to those placed on queer citizens.

Sanctity games

In moral psychologist Jonathan Haidt's terms, such outcasting on the basis of sexual acts is an appeal to the sanctity/degradation moral foundation, which he defines as:

This foundation was shaped by the psychology of disgust and contamination. It underlies religious notions of striving to live in an elevated, less carnal, more noble way. It underlies the widespread idea that the body is a temple which can be desecrated by immoral activities and contaminants (an idea not unique to religious traditions).

But the notion that homosexual acts degrade the body only works if homosexual desire is defined out of the range of the properly human. After all, however powerful a tendency within monotheism--with its very strong propensity to sex-and-gender taboos--it is very far indeed from a universal feature of human societies to define homosexual acts as disgusting, degrading or morally contaminating.

It turns out to be classic examples of letting conclusions ("homosexual acts are immoral") set the ambit of premises ("homosexual desire is outside the properly human/the natural"). Rationalisations of bigotry are rife which this rhetorical technique since they are based on letting a theory of the human, or of the social, or both, set the ambit of evidence, set the ambit of what aspirations and experiences count. Bigotry is not only always a moral claim; it is also always based on an impoverished epistemology which denies inconvenient human experience and aspirations.

In the case of the Jews, seeing them enemies of Christ and Deicides led naturally to seeing them as "the people of the Devil" which then fed into secularised demonisations. In the case of queers, natural law notions were adapted to Judaic taboos (notably by Philo of Alexandria) to generate the notion that homosexual acts, and thus homosexuals, were "unnatural"--i.e. outside the properly human. (Indeed, outside nature and in rebellion against God's order.) The secularised conception was incorporated into the religious denunciation.

The same but different

In looking at this push for legal protection (indeed, establishment) of a religious entitlement to outcast, it is perhaps natural in the American context to see an analogy to segregation. But it is not as if queer folk can have a whole separate infrastructure of services: their vulnerability arises in very large part from that they grow up as isolated individuals in overwhelmingly "straight" families and social milieus. Though that also makes them better targets than Jews. It is possible to have a Judenfrei society, one can kill or drive out all the local Jews. (The Muslim Middle East is largely Judenfrei and appears to be doing its best to be also Christianfrei: monotheism tends to be very serious in its outcasting and Islam tends to be the most serious of all.) It is not possible to have a queerfrei society, as even if somehow they are all identified and driven out or killed, more will just starting being born.

Dred Scott: someone of African descent and so declared by a majority of the US Supreme Court not able to be a citizen.

Nor is it possible for public policy to stop people being homosexual: all it can do is make their lives miserable. To pander to the effortless virtue and sense of entitlement that such outcasting feeds off.

Scalia J thinks American citizens (which turns out to be only some American citizens) should have the right to use the law to show their disapproval of "homosexual conduct". Besides noting the sense of entitlement built into some citizens counting much more than others, there is a simple test for when the "moral animus" Scalia J believes (some) American citizens are entitled to display in action and law is not permitted. When it denies equal protection of the law, when it denies the commonality of citizenship. The very element that Scalia J finds so repugnant about the Korematsu and Dred Scott decisions of the US Supreme Court. Calling it "moral" animus does not solve the problem, because bigotry is always a moral claim, it is always a claim about the limits of the moral community. Who is, and is not, covered by it and what degree.

Valorised fetishes

I have previously pointed out that conservatives keep getting wrong-footed by history as society moves along the Emancipation Sequence. This comes from the conservative tendency to create fetishes of order and to valorise the past. The notion that Catholics/Jews/women/blacks/queers have to be denied equality before the law (including the right to fully participate in the political order) in order to protect social order is a classic series of fetishes of order. (So, btw, was the gold standard and is narrow inflation targeting.) As each fetish has fallen, it turns out that social order managed just fine, that giving legal effect to moral exclusion was not a necessary support of social order at all, just of a particular set of privileging.

As for the tendency to valorise the past, that comes from denying or glossing over that exploitation, power-imbalances, oppression are also part of the heritage of all societies, including our own. (We are, after all, talking of very traditional forms of entitlement.) A denial that is a lot easier if the experiences of the exploited, excluded and oppressed are suppressed, not recognised or an epistemological void. Due to being outside nature, against God or not part of the "properly" human or similar claims. From, in other words, having an impoverished epistemology.

The upside of monotheism is that envisions a moral order that encompasses everyone. The downside of monotheism is that it envisions a moral order that encompasses everyone, so that the burden of exclusion is that much more profound. One is literally thrown outside the ambit of the moral community, with one's very humanity being belittled or denied.

The One Truth of the One God can provide a powerful sense of entitlement. To the extent of believing in an entitlement to outcast and passing that off as religious liberty and protection from discrimination. The belief that one sees so much more of morality than non-believers ends up blinding one to what one does not see--a common and shared humanity.

Or, as a certain US Supreme Court Justice wrote in other contexts:

The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

And:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

[Cross-posted at Skepticlawyer.] 

Not heterogeneous enough

Both Austrian school economists and Keynesian economists (New or otherwise) worship at the altar of interest rates. Keynesians worry about liquidity preference and effects on investment and lead to such things as the Taylor rule. (A nice brain-teaser about interest rates in New Keynesian models is here.)

With Austrian school economists, it is about time preference and the structure of production, leading to the famous Hayekian triangle, nicely explained here. In Roger Garrison's words: (somewhat of the go-to guy to explain Austrian economics):

One leg of the triangle represents dollar-denominated spending on consumer goods; the other leg represents the time dimension that characterizes the production process (see Figure 5.1). In a fundamental sense, the Hayekian triangles in their various configurations illustrate a trade-off recognized by Carl Menger and emplasized by Eugen von Böhm-Bawerk. At a given point in time and in the absence of resource idleness, investment is made at the expense of consumption. Investment, which entails the commitment of resources to a time-consuming production process, adds to the time dimension of the economy's structure of production. To allow for investment, consumption must fall initially in both nominal and real terms. Once the capital restructuring is complete, the corresponding level of consumption is higher in real terms than its initial level. The nominal level of consumption spending, however, is lower than its initial level because a greater proportion of total spending is devoted to the maintenance of a more time-consuming production structure.        
The relative length's of the triangle's two legs, then, represent the inverse relationship between nominal consumption spending and nominal non-consumption spending—the latter as reflected by the time dimension of the economy's capital structure. 

Hence the triangle.

James Caton has posted a critique of the macroeconomic usefulness of the Hayekian triangle, noting three shortcomings:

1. Empirically, prices in all stages of production tend to move together.
2. Related to critique 1, the Hayekian triangle assumes an economy at full employment equilibrium.
3. The Hayekian triangle is an incoherent representation of the macroeconomy.

The second point is clear enough in Garrison ("in the absence of resource idleness"). The first point is one in favour of monetary theories of the business cycle, since what is the one thing all transactions have in common in a magnetised economy? The use of money. (As an aside, Hayek supported keeping NGDP--i.e. aggregate nominal income--on a stable growth path.) 

The Austrian theory of the business cycle is based on the notion that central banks over-stimulate by keeping interest rates too low, leading to investments which do not accord with actual supply and demand conditions (including time preferences) and then an economic bust as malinvestments get liquidated. 

The concept of "malinvestments" bothers me, as it looks like an intrinsic quality which sits ill with the subjectivism that is allegedly the basis of Austrian economics. What would be a malinvestment in Port-au-Prince may be a great idea in New York. While changes in demand conditions can shift dramatically  the line between profitable and unprofitable businesses. (As Hayek admitted with his concept of "secondary deflation".)

A commenter on the above post defends the Hayekian triangle, writing:

the triangle is similarly percussively effective at demonstrating the heterogeneity of capital investment. It matters where investment is going. 

On the contrary, surely a problem with the Hayekian triangle is that it does not take the heterogeneity of capital seriously enough. Different industries use different forms and amounts of capital with widely differing production times (and levels of risk). Doing so while both providing and seeking income. There is no single interest rate, but a whole series of interest rates depending on asset risk, longevity and production delay. Which means that investment in various industries has a considerable variety of lead times in responses to changes in expectations. 

To put it another way, there is nothing anywhere near close enough to a single "structure of production" to drive economy-wide downturns: indeed, the entire process of Schumpeterian creative destruction is all about discovery processes in varied, diverse and constantly evolving structures of production. So, the structure of capital, being as heterogeneous as it is, is precisely where we should not look to explain economy-wide downturn happening across all industries at the same time. 

Milton Friedman's plucking model of business cycles (original article here [pdf]) fits the empirical evidence better, evidence that is hard to reconcile with the Austrian business cycle theory that the Hayekian triangle is used to elucidate, as the latter sees the cause of each bust as being in the preceding boom. So, that there is no correlation between booms and subsequent busts is very problematic--it fits more with shocks pushing the economy off its growth path rather than some internal pattern of over-indulgence and hangover.

So, back to monetary explanations of the business cycle. (Yes, there can be aggregate supply shocks, but it matters how aggregate demand responds, and that central banks can control.)

On being a rationalisation rather than an argument

If the purpose of state regulation of marriage is procreation, then that is not an argument for only recognising monogamous marriage. Consider the following claim:

The state has a legitimate interest in its own perpetuation  and maintenance via the production of children, their socializing, their protection, and their transformation into productive citizens who will contribute to the common good. … It is this interest that justifies the state's recognition  and regulation of marriage as a union of exactly one man and exactly one woman. 

If procreation is the reason for state involvement in marriage, then polygamous marriage (whether polygyny or polyandry) is a perfectly reasonable way to raise children conceived within the marriage. It spreads the duty of parenting among more than two people.

Arguments for monogamy and against polygamy rest on other considerations -- such as the status of women and spreading the opportunity to be married more widely. (For example, polygyny tends to cut lower status males out of marriage opportunities.) But they do not rest on issue of procreation. This is simple rationalisation -- I have a conclusion I want (marriage as a union of exactly one man and exactly one woman) and so claim my premises support it, when they do not. 

In fact, remarkably little of the regulation of marriage rests on procreation. The state does not check on the procreative capacity of potential marriage partners, it does not require them to state any intent to procreate and it permits adoption -- the raising of children procreated elsewhere. The matter of adoption shows up how the term procreation is being used in such arguments to obscure the difference between a biological act and a social responsibility.

The raising of children is part of why marriage is regulated, but that does not require those raising the children be their procreators. Once adoption is permitted, then the "not procreative" argument against same-sex marriage falls over. Especially given the lack of any significant evidence that whether couples are same-sex or opposite-sex has any systematic negative effect on the children so raised. Moreover, the notion that the quality of the parenting can be reliably divided in such a way flies against our experience of the diversity of people as individuals and the diversity of the quality of their relationships.

Marriage is a socially preferred means of raising children, but that is due to the characteristics of marriage, it does not determine said characteristics. In particular, it does not determine that marriage be monogamous and not polygamous.

The "it's all about procreation" arguments are just hand-waving rationalisation, the pretence of having an evidentiary argument when all there is is the search for rationalisations to legally support a religious taboo.

Robert Waldman's really clever, really bad idea

Over at interfluidity, Robert Waldman posted a really clever bad idea. Tax property rights on things where exclusivity has high costs on others (he nominates real estate and patents) at whatever price the owner sets -- with the proviso that the state (or possibly all comers) then have the right to acquire the property at the stated value.

Patents raise a host of awkward issues, so I will leave them alone. I will also note in passing that Ancient Athens had a somewhat similar provision as Waldman suggests and that SF author Robert Heinlein offered a similar suggestion in one of his later novels. I will also leave aside the issues with eminent domain. I will confine myself to the implications for the interaction between public policy and real estate.

The incentive to restrict supply

His proposal is, using the terminology of a recent Quadrant article, a suggestion for reducing consumer surplus (the difference between what a consumer paid for good and what they would be willing to pay for the good) and increasing rents. It is so because of the incentives it creates for public policy.

Land is an asset. Some uses of land have more value than others. Other things being equal, the more one restricts the supply of an asset, the higher the price for it. So, if one taxes land at its market price, then governments have a revenue-generating incentive to drive up the price of, for example, land-for-housing by restricting how much land is approved for use as housing. Retarding the ability of supply to respond to demand will drive up the price of land.

Since government has far more power to restrict use of a class of assets than any individual, increasing the revenue to government from restricting its use increases the cost of exclusivity and rewards government for increasing said cost.

This is not the effect I suspect that Robert Waldman had in mind.

Protecting incumbents

There is a general tendency for intrusive regulation to protect economic incumbents (existing home owners, job holders, etc) and the well-connected. Particularly if official approval is required. Cities with lots of positional goods (beachfront views, nice hills, etc) to defend encourage the well-connected to use regulation (particularly approval systems) to defend their positional goods.

Land of very different value next to each other.

But it is worse than that, Jim. Increasing the value of an asset rewards economic incumbents. Who vote. Which is why regulatory restriction of land use tends to be strongest in jurisdictions with lots of migrants -- entrants to the housing market who do not vote. Aggravating the positional goods effects, since those also tend to be cities attractive to migrants. (Texas is a bit of an exception to this effect, both because it cities tend to lack such positional goods and because its foreign migrants are largely Hispanics, and there are lots of Hispanic voters in Texas for them to "network into" -- there are reasons why a former Texan Governor was the first bilingual US President for many years.)

Furthermore, restrictive regulation of land use (particularly through official approvals) promotes donations to political parties and candidates by developers -- since they need access to officials to operate. Creating further incentives to restrict supply of land-approved-for-housing.

Not helping small operators

Use of approval systems also discourage small builders: bigger developers can manage the costs of dealing with the regulatory system better. In particular, they can manage the risk of delays in approval much better. Having encouraged bigger developers, such approval systems then encourage the now sizeable players to game the system, which they area better able to do. Moreover, the stamp of "official approval" not only reduces transparency in general, it can discourage more precise attention to appropriate requirements, helping larger developers to game the system. The effects of which are then blamed on "wicked developers" thereby encouraging support for the regulatory structures which create large developers gaming the system in the first place. A form of the Baptists and bootleggers problem.

Complex regulations and zoning restrictions are excellent barriers to entry. See above comments about protecting economic incumbents and the well-connected.

Poorer serviced

Driving up the price of real estate by restricting supply also undermines infrastructure provision. For it raises the cost of the land, reduces the tax benefit to governments to provide infrastructure and increases resident resistance. (They want to keep the anticipated capital gains: being near infrastructure raises the value of housing, being right next to it, not so much.) Why build expensive and politically contentious infrastructure when making (housing) incumbents happy, increasing political donations and raising revenue can be done simply by restricting land use?

There is a reason Texas is much better provided with freeways and motorways than Zoned Zone US, or Australian cities. Texans get more road infrastructure for any given level of taxes because cheaper land makes infrastructure cheaper to provide, reduces opposition to same and increases the revenue return.

Official incentives

Having something like the German right to build constitutional requirement would help, as requiring official approval is a nicely un-transparent way of generating the above "benefits". (Obscuring who benefits is often part of the appeal of government provision and regulation.) But as even that permits restrictive laws, it would be far from a complete solution. (German local government revenue is partly per head, reducing further the incentive to restrict land supply.)

Taxing private benefits from exclusion is not going to generate a net social gain if it magnifies the political benefits from governments imposing more such exclusions. Incentive effects apply to governments too. (Public  choice theory in a nutshell.)

Not that this mere theory. Texas has a higher population than Australia, higher population growth rates and crams more of its population into its five biggest metropolitan areas, yet its urban housing is half to a third of Australian house prices (measured by [pdf] the ratio of median houses to median household income). Because Australian State governments see expensive land as a revenue- and political donation- generating, and existing home-owner protection, mechanism. (The old joke that if the Soviet Union took over the Sahara, within 5 years there would be a shortage of sand, is all too resonant when it comes to metropolitan land use in Australia.)

Doing as Robert Waldman's suggests, giving governments an incentive to profit from driving up the prices of assets via restricting supply, is not a good plan. They do that too much already.

[Cross-posted at Skepticlawyer.]