Outrage Economics

Posner on Gay Marriage

In response to the recent trend to recognize gay marriage, most notably by Spain, Canada, and the Supreme Judicial Court of Massachusetts, Posner has a think about how to grok the way to maximize total social welfare with respect to implementing gay marriage policy. He brings up the idea of disutility from outrage, and how that should figure into our welfare considerations:

Economics focuses on the consequences of social action. One clear negative consequence is the outrage felt by opponents of gay marriage and of homosexual rights in general. Philosophers like John Stuart Mill would not consider that such outrage should figure in the social-welfare calculus; Mill famously argued in On Liberty that an individual has no valid interest in the activities of other people that don't affect him except psychologically. (Mill had in mind the indignation felt by English people at Mormon polygamy occurring thousands of miles away in Utah.) But that is not a good economic argument because there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person.

I suspect most who read this will have a sort of wrinkle to the nose or discomfort in the tapping of the toes. Perhaps it is that one suspects that since those who would be significantly interested in gay marriage are a minority, that if those who experience significant outrage over the matter are a majority, progressive social policy would be stymied by including the disutility from outrage into our economic calculations. Though this is not necessarily so (the cost of outrage is not generally an overwhelming force), if it were true in this situation, would social policy be flawed to not consider this overwhelming disutility?

Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion; [...]
Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities. But when, as in this case, there is no strong basis in the text or accepted meaning of the Constitution for the recognition of a new right, and that recognition would cause a powerful public backlash against the courts, the counsel of prudence is to withhold recognition. Doing so would have the additional advantage of allowing a period of social experimentation from which we might learn more about the consequences of homosexual marriage.

If the courts were to make a positive or negative decision on a controversial when it may be that social utility is not best served by such a decision, they would forgo the potential freedom for social experimentation at the margins. That is, without something being explicitly illegal or legal, these costs could be weighed further.

One state, Massachusetts, already recognizes homosexual marriage, as do a small but growing number of foreign nations (Spain, Canada, Belgium, and the Netherlands). Perhaps without judicial intervention gay marriage will in the relatively near future sweep the world, and if not it may be for reasons that reveal unexpected wisdom in the passionate public opposition to the measure.

Yeah, I know. This isn't the most romantic take on the matter, but that isn't what bothers me. I'm not sure that I fully agree with Posner this time. I agree that outrage costs are important to consider, but I feel as though we ought to also consider the nature of the opposition. If the thing that inspires outrage is accompanied by negative externalities (such as pollution), the outrage would act as an index to harm. I do not think that this kind of outrage over the affairs of others operates in this way as an index. If anything, taking into account the negative feelings that are inspired within one individual (the one who is outraged) without any fault or force from another individual (the one who is gay and married) would be like externalizing a negative, we would be polluting our policy with the wasteful outrage.

I generally lean towards keeping the social nose out of individual affairs. Sometimes we need to poke it in, as is the case with the welfare of children and the elderly, but it doesn't seem to me that relationship definitions are something to regulate. And that is where I agree with Posner in effect. Where there are legal alternatives to the benefits of marriage, there is no need for the law to intervene; there is nothing stopping people from considering themselves married.