Jacob Levy continues to sift through his email box, looking at rationalizations for anti-gay discrimination in marriage laws.

The most popular rationalization is that a gay or lesbian couple is incapable of biological reproduction. But, of course, so are many straight couples, voluntarily or involuntarily. And many couples, although physically capable of reproducing, have chosen not to reproduce. [Obligatory disclosure: my wife and I are among the latter group.] We do not deny marriage licenses to these couples.

Several of Jacob’s readers have espoused the position that we should, indeed, deny non-procreative couples the right to marry. An unnamed, “conservative, married” correspondent writes to Jacob:

I’d suggest that only marriages WITH children get extraordinary “protection”. You can call you partner and your arrangement whatever you want but the state should only recognize existing FAMILIES and partners who have reared children as state blessed “marriages” with accompaning rights and benefits.

So, if you’re sterile and marry and don’t have kids…no bene’s. If you adopt, fine, you got a “marriage” in the states eyes and get benes. Until then, call your arrangement whatever you’d like but make all of your legal issues explicit (wills, visitation, powers of attorney) cause the state doesn’t (and shouldn’t) care about helping two, unburdened, free, adults square away their respective responsibilities to each other.

Jacob is mainly interested in the legal question of whether a right to marry would be guaranteed for these couples by the U.S. Constitution (presumably by the Ninth Amendment and the “Privileges and Immunities” clause of the fourteenth). But the public policy position, or the philosophical position, that marriage ought to be reserved for (potential or actual) biological parents is independant of that, and, barring an actual court case, seems more interesting to a non-lawyer such as me.

This political/philosophical position needs a name. Since the position could be summed up succinctly as “Marriage is for breeders”, I propose calling this position “breederism.”

Over at Crescat Sententia, Peter Northup has an excellent summary of a colloquium at NYU featuring Lawrence Lessig. The quote that struck me:

There was another interesting exchange concerning an alternate, “conservative” justification for intellectual property rights: the desire to protect the integrity of certain culturally significant works from debasement (this included the first of many references to Disney pornography, and set the stage for a most unexpected digression on Smallville slash, and the public’s interest, or lack thereof, in its production). If we’re willing to prevent someone from painting his historic townhouse chartreuse, can’t we say “no” to Mickey Mouse pornography?

Indeed, as Lessig reminded the audience, the Dr. Seuss estate made just this very argument in support of the Copyright Term Extension Act.

Meanwhile, the mostly negative reviews of the new movie version of The Cat in the Hat are piling on. A few choice quotes:

• “... one of the most repulsive kiddie movies ever made.” – David Edelstein in Slate
  
• “... the producers may as well have skipped the hassle of securing licensing rights and simply called this mess Mike Myers: Asshole in Fur.” – Gregory Weinkauf in the Dallas Observer
  
• “If the producers had dug up Ted Geisel’s body and hung it from a tree, they couldn’t have desecrated the man more.” – Ty Burr in the Boston Globe.
  
• “A vulgar, uninspired lump of poisoned eye candy.” – A. O. Scott in the New York Times
  

Artistic integrity, my ass.

Thanks to Tyler Cowen at the Volokh Conspiracy (here and here) for pointing out that legalization of gay marriage might lead to a small increase in sham marriages for immigration purposes.

As an advocate of open immigration, I regard this as a positive benefit.

Following today’s Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, there’s been some predictable noise in the libertarian blogosphere in favor of “privatizing marriage“. Normally, I’m pretty sympathetc toward libertarian utopianism, but I’d like to throw a bit of cold water on this idea.

As Michael Kinsley observes in this pro-privatization article, government sanctions of marriage serves as a “bright-line rule” in legal and employment matters. It generates the right answer in the vast majority of cases, while minimizing economically inefficient negotiations.

If I decide to get a new job, I can ask one simple question regarding benefits: Do you offer health insurance for the spouses of employees? If they say no, I can walk out of the interview right then, since this is a benefit I will not negotiate away. And the employer is free to say “yes” without prying into my spouse’s medical history, because it knows that I’m not just trying to get insurance for some relative or casual friend who has a medical problem. (That is, government sanctioned marriage staves off the problem of adverse selection for the health insurance market.)

If I die from an aortic dissection tomorrow, there will be no costly legal wrangling over who inherits my vast fortune. My wife will. This is exactly what I want, as do most married people. And I didn’t have to hire an attorney to draft a will.

In other words, a universally recognized standard for who is “married” is economically efficient.

Now maybe the question of employer-subsidized health benefits could be solved by an oligopoly of private marriage companies. But the legal questions cannot be. The legislature will have to decide which marriage companies to recognize as legitimate, and then we’re right back to government-sanctioned marriage. Homophobic bigots will try to pass laws saying that their state, or the federal government, will not recognize any marriage sanctioned by a company that sanctions marriages between two individuals of the same sex.

In short, privatizing marriage is not going to work unless we privatize the rule of law itself.

And even if I’m wrong here, and privatized marriage might work in theory, it’s never going to happen. What are you going to tell the millions of couples who are already married? “Sorry, you’ve got to go pay $75 to a company to have your marriage recognized by your employer and by courts of law. And since we don’t know how this business is going to pan out, you should register with all three of the major marriage companies, until the natural monopoly kicks in and picks a winner.” Sorry, libertarians, but you’ll have a much easier time abolishing Social Security and Medicare.

So here’s my challenge to the libertarian proponents of privatized marriage. As Will Baude so eloquently put it, you’re in a second-best world. The lines have been drawn in this particular battle of the culture war, and you didn’t get to draw them. But you have to pick a side.

Will you be with the bigots, or against them?

Update: Lower taxes? What are you talking about, Chris? I'm pretty sure that the marriage penalty is one aspect of marriage that gays are not clambering for.

Up until today, if I had been asked to name the blogger that I most agree with (not necessarily my favorite blogger), it would have been Matthew Yglesias. This shouldn’t be surprising: we both have a background in analytic philosophy, both fans of David Lewis, we’re both consequentialists, we’re both liberals, and we’re both proponents of free trade.

But today he’s said something so outrageously false that, like Donald Davidson’s hypothetical man who says “There is a hippopotamus in the refrigerator” (from "On Saying That"), I have to wonder whether I’ve misinterpreted him.

Blogging about this list of the top ten albums of all time from Rolling Stone magazine, Matthew writes:

I would suggest that if you come to the conclusion that The Beatles are responsible for four of the top ten albums of all time, then your methodology is probably a bit off (they’re not, after all, the best band by whole orders of magnitude).

At first glance, he would seem to be saying here that not only are the Beatles not the best band of all time, they’re not even in the top ten.

But since this is self-evidently false, I must excercise Davidson’s "principle of charity". Like Davidson’s man who says “Look at that hansome yawl” while pointing at a ketch ("On the Very Idea of a Conceptual Scheme"), I must conclude that Matthew uses the term “Beatles” to refer to some group other than John, Paul, George, and Ringo. Perhaps he’s confusing them with the Monkees.

I must, however, agree with Matthew that Rolling Stone’s methodology must be a bit off. Not for the reason that he cites, but because Abbey Road is not one the four Beatles albums they put in the top ten.

Update: Brian Weatherson, resident philosopher at Crooked Timber, weighs in with his top ten list. His methodogy is a bit off too, since he also leaves out Abbey Road.

According to Professor John Folts at the University of Wisconsin, Guinness beer reduces the risk of blood clots that cause heart attacks. Apparently, though, this effect is confined to darker beers. Heineken did not have the same effect.

I for one will have no trouble incoporating this new medical breakthrough into my daily health regimen.

I would, however, like to correct one piece of misinformation in the Independent's article:

Light-coloured beers, such as lagers, lacked the same health-giving punch.

There are many dark lagers, such as the delicious Dixie Blackened Voodoo Lager, which I unfortunately cannot seem to find in Memphis anymore.

Persepolis is an autobiographical graphic novel, telling the story of a rebellious teenage girl growing up during the 1979 Iranian revolution and subsequent Iran-Iraq war. Marjane Satrapi is the great-granddaughter of Ahmad Mirza, the last Persian emperor of the Qajar dynasty, who was overthrown by Reza Shah in 1925. Her parents, however, along with her uncles, were Marxist revolutionaries, who got more than they bargained for after the Shah was overthrown.

The stark black and white art is reminiscent of Maus, and, like Maus, the story alternates between comedy, such as the fourteen-year Marjane telling a “Guardian of the Revolution” that the picture on her Michael Jackson button is Malcolm X, and tragedy, such as a sequence on the propaganda told to the boys destined to die in the bloody war with Iraq.

If you’re my age, you probably don’t remember much about the Iranian revolution apart from the American hostages, and Ayatollah Khomeini’s face on the cover of Time magazine. Read Persepolis for an insider’s perspective on the making of an Islamic theocracy.

It seems that Cori Dauber has rapidly become everyone’s least favorite Volokh Conspirator. In addition to my criticism of her excessive use of rhetorical questions, here’s what other bloggers are saying about her:

• “A poor grasp of how rational numbers work” – Kevin Drum
  
• “Bad math” – Matthew Yglesias
  
• “Shallow and abrasive” – Amy Lamboley
  
• “Glib and facile” – Cori Dauber

Okay, that last quote is taken out of context. But why let context get in the way of a good snark?

And damning with faint praise, Will Baude agrees with Chris that Cori Dauber is not as bad as Clayton Cramer was. Will has also done us the favor of adding a link to the Dauber-free version of the Volokh Conspiracy to the Crescat blogroll, listed as "Purer Volokh".

I should make that "almost everyone's least favorite Volokh Conspirator." Lest it seem like everyone hates Prof. Dauber’s blogging, I note that Glenn Reynolds likes her. Heh.

And just to clear up a bit of confusion on the part and Will Baude and me, this picture indicates that Prof. Dauber is in fact a woman.

[Chris here: I’d add “Purer Volokh” to the blogroll, but it would end up off in Den Beste-land along with the people who don’t do pings. So our readers will just have to deal with Cori, or bookmark the link above.]

Someone needs to tell Cori Dauber, current guest blogger over at the Volokh Conspiracy, to take it easy on the rhetorical questions.

This seven sentence post contains five rhetorical questions. And this twelve sentence post contains seven rhetorical questions.

I’m not saying there’s never a place for rhetorical questions, but, like exclamation points and all-caps they should be used very sparingly.

Overall, Cori’s blogging style gives me the impression that he’s about to blow an artery. So it doesn’t surprise me that he links to Little Green Footballs here, in a post that consists of four rhetorical questions out of eight sentences.

Sorry Eugene, this guy is your worst guest blogger since Clayton Cramer.

According to this CNNMoney story, politicians as a profession are some of the worst drivers, and some of the best drivers, depending on how you measure driving ability. Politicians rank in the top five professions by number of speeding tickets, but in the bottom five professions by number of accidents.

A few days ago, I came up with plausible explanations for the fact that December is the worst month for falling deaths, and November the worst month for shooting deaths.

But this one has me stumped.

Dear Fellow Republican,

You are among a select group of Republicans who have been chosen to take part in the official CENSUS OF THE REPUBLICAN PARTY.

How did I get on this mailing list? I’m a registered Democrat fer cryin’ out loud! Most of the money-begging letters I get are from the Sierra Club and the National Wildlife Federation, and I know the GOP isn't buying mailing lists from them. The only conservative publication I subscribe to is the Wall Street Journal.

I wonder if they'll figure it out when I return the survey, in the postage-paid envelope, with a check for one cent and all the wrong answers checked. “Should small businesses be encouraged to grow and hire more workers?” Umm… “No.” Mwahahaha!

I also can’t figure out how I got on the mailing list for 1-800-JACK-OFF. Perhaps the two are related. Could the GOP be buying their mailing lists from phone sex companies?

Tyler Cowen notes some interesting statistics on the months during which one is most likely to die of a given cause. You’re most likely to die an accidental death in August, and most likely to drown in July.

No surprise on the death by drowning statistic. Several children drown every summer in Memphis when it starts getting hot.

On the other hand, you are most likely to fall to your death during December. Tyler wonders whether that statistic is driven by holiday suicides flinging themselves off buildings and bridges, but I suspect there’s a simpler explanation. December is the month in which people climb up on the roof to hang holiday lights and other decorations.

Tyler doesn’t speculate on November, the month during which you are most likely to be shot. At first I thought maybe this has something to with family arguments over Thanksgiving dinner. But then I remembered: deer season!

Alex Tabarrok notes that the Senate has passed, 95-0, a bill that would make it illegal for employers to use a person’s genetic information in hiring or firing. That’s good.

But the bill would also make it illegal for insurance companies to use genetic testing to deny coverage or set premiums. As Alex points out, that’s bad. (I can’t tell from the story whether this applies only to health insurance, or if it applies to life insurance as well.) This can only exacerbate the problem of adverse selection, leading to higher insurance rates for everyone, and pricing more and more people out of the insurance market.

Like Alex and Tyler’s guest-blogger, Lloyd Cohen, I’m skeptical about Alex’s optimistic suggestion that the problem can be solved through “genetic insurance“, which one would purchase before taking a genetic test, and which would cover one’s raised premiums in case one had, e.g., a genetic predisposition toward heart disease. How could the genetic insurance provider be sure that the purchaser had not already taken the genetic test ahead of time, to determine whether it would be worthwhile to purchase the genetic insurance? Again, we have the problem of adverse selection.

Advances in genetic research hold out a great deal of promise for improved health care in the long run, but in the short run they will inevitably lead to a collapse of the insurance market (both life and health) for diseases that have a genetic component. Ultimately, I believe this will force us into a single-payer government-run health system, which can pool risk by making insurance mandatory. Unlike many other liberals, I’m not sure this is a good thing. But good or bad, it appears inevitable.

Update: corrected the permalink to Lloyd Cohen's post.

Sebastian Holsclaw says that many pro-lifers "muddy the waters of the abortion debate". Those on the pro-choice side, on the other hand, "poison the well of the debate".

Now that’s not fair and balanced, is it?

All snarkiness aside, Sebastian’s new blog, written by an articulate and reasonable conservative, is a welcome addition to the blogosphere. Liberals like me need conservatives like Sebastian to keep us honest.

David Bernstein likes the Darwin fish. Sasha Volokh doesn’t, and laments that there’s not a separate symbol for creationists, so that we evolutionists could just make fun of them, without casting aspersions on more enlightened Christians.

But there is a separate symbol for creationists: the Truth eats Darwin fish, which I see a lot of here in Memphis, and which qualifies as my least favorite car decoration. (Close second: those decals with Calvin peeing on a Ford logo, or a Chevy logo, or anything else for that matter.)

I used to have a Darwin fish on my car, until I concluded that it was responsible for several instances of vandalism. (This was in Rochester, NY.) That is to say, some person or persons who were offended by it were responsible for several instances of vandalism. The fish itself did not throw a brick through my car window, nor did it bend my antenna and stomp all over the roof of my car.

My personal favorite is the Cthulu Fish. “Cthulhu for President: why vote for the lesser of two evils?”

Alex Tabarrok says he wants to move to Switzerland to take advantage of the low taxes and the declining marginal income tax rates. (Declining as a function of income, that is.)

He may want to reconsider, after the xenophobic Swiss People’s Party gained 11 seats in the recent Parlimentary elections, making them the largest bloc in the governing coalition.

On the subject of marginal tax rates, could one of the econo-bloggers perhaps explain the argument in this paper that declining marginal rates are a property of “optimal tax systems“? The paper completely lost me, so you’ll need to explain it in short words that a mere philosopher turned computer geek would understand.

I’m willing to reconsider my view that an income tax with increasing marginal rates strikes the best balance between fairness and minimizing economic disincentives.

My co-blogger has equated Richard Stallman’s proposed abolition of copyright with slavery. Kevin Aylward has equated Stallman’s agenda with Communism.

Both are being unfair to Stallman.

First, let’s look at Aylward’s charge of Communism. Aylward writes:

Stealing the product, regardless of the extreme moral relativism employed by Stallman, is wrong. And he’s not just talking about teenagers downloading copyrighted materials on Kazaa, he wants the remove the rights of the content producers as well. Your output as an artist (or programmer) belongs to EVERYONE. Replace the word EVERYONE with STATE and what do you get?

Communism

Who owns the air we breathe? “No one” would be the best answer. “Everyone” might be just as good. But that’s hardly the same as the air being owned by the state, and it does not make the USA a Communist nation.

Next, let’s look at Chris’s charge of slavery. Chris writes:

Taking away that choice by requiring them to give away their work—Stallman’s ultimate utopia—is morally indistinguishable from telling programmers they are slaves. That Stallman would have the state feed and clothe the authors of software and other works makes it no less slavery than if the system were operated by rich white plantation owners.

Let’s just set aside the fact that the vast majority of software development is not creation of software for sale. Part of my job is software development, but the stuff I develop would not be of the slightest interest to anyone but my employer. (As a matter of fact, the software I develop for my employer is in the public domain.)

In most countries, the state claims a monopoly on law enforcement. If you want to be a cop, you have to work for the state, and accept the state’s terms of employment. Cops are fed and clothed by the state. Does this make them slaves? No, because they have the option of getting some other job.

Personally, I would not be in favor of completely abolishing copyright. But Stallman has something interesting and valuable to add to the ongoing dialog about copyright protection. And unfair accusations of Communism and slavery do nothing to further that dialog.

From Dissecting Leftism and Marginal Revolution, we learn that Conservatives are happier than Liberals. I like my hypothesis better than Tyler Cowen's.

I just returned from another enjoyable trip to San Antonio. After the last trip, I blogged about having rather restricted web access at the training center, and I promised a report on what blogs were blocked. Here’s that report.

I’m not going to say what software was doing the blocking, just in case there’s some sort of absurd “Intellectual Property” claim or EULA agreement I might be violating. But do a Google search for “enterprise web filter software”, and you should be able to make an educated guess.

I obviously couldn’t check every blog out there, so I decided to use the best blogroll out there, that of OxBlog. Here are the blogs that appear on the OxBlog blogroll, along with whether they were blocked, and what category they were blocked under.

Kevin Drum proposes a taxonomy of “poor”, “middle class”, “rich”, etc., based on income. I was surprised to discover that I’m upper middle class (albeit at the low end of it).

It was so much easier back in the fifties:

If you drove a Chevy, you were lower middle class.
If you drove an Oldsmobile, you were middle class.
If you drove a Buick, you were upper middle class.
And if you drove a Cadillac, you were well off.

I went to see American Splendor this afternoon. I’ve never been a very good review writer, and I doubt a review full of nothing but superlatives would be very interesting, so just go read the review from the Memphis Flyer.

And then go see this movie! With the possible execption of Ghost World, it’s the best movie that’s ever been made from a comic book. If you’re the Memphis area, it’s playing at Malco’s Studio on the Square in Midtown.

In a major breaking news story from the Commercial Appeal, former atheist Chuck Davis finds Jesus.

Davis says some of his old friends still don’t understand his conversion and some don’t accept it.

But Davis explained, “Jesus is like a fried peanut butter and jelly sandwich. People can tell you what it is, but you don’t know what’s it’s like until you try it.”

Eugene Volokh criticizes a Slate proposal for compulsory licensing of music for sharing on the internet. A tax on recordable media (blank CDs, hard drives, MP3 players, etc.) would be paid to some organization like ASCAP and BMI, which would then distribute the money (minus administrative expenses, of course) to the artists, based on estimated share of downloads.

Eugene points out how easy it would be to game the system, by any organization able to marshall enough volunteers to download the song over and over. He imagines the NRA recording “Second Amendment Blues”. Loyal NRA members might download the song over and over again in order to increase the NRA’s share of the royalties, with the more technologically sophisticated writing scripts to facilitate this. Other interest groups get in on the game as well. The net result (no pun intended) would be a massive waste of bandwidth, with no real incentive to compose good music.

But as Eugene says, “In the radio context, it’s much harder to play this sort of game—ASCAP and BMI, the royalty collection and distribution bodies, rely on sources of data about sales that aren’t as easy to dramatically throw off.”

So why not use the same sources of data that ASCAP and BMI rely on for distribution of their royalties? As I understand it, ASCAP and BMI rely on the frequency of radio play to determine the share of royalties that an artist will receive, even for those royalties that come from live performance venues and the DAT tax. Why not use frequency of radio play to determine the share of royalties under this new proposed system?

The University of Memphis football team beats Ole Miss for the first time since 1994, confounding my co-bloggers prediction, and here’s what the Memphis Commercial Appeal came up with as a headline:

Great Leap Forward

Yes, some brilliant headline writer has compared U of M’s 2-0 record (the first time they’ve been 2-0 since 1976!) with Mao Zedong’s disastrous attempt at industrialization from 1958-1960, during which some 30 million people starved to death.

Kevin Drum has a lengthy post about his nightmare updating his Windows XP home system to fix the vulnerability exploited by the Blaster worm. At the end of the post, he writes:

POSTSCRIPT: Feel free to do all the Microsoft bashing you want in comments, but please don’t turn it into yet another tiresome Windows vs. Mac thread. Most of us Windows users actually have excellent reasons for our choice of operating system, and hearing about the alleged superiority of Macs for the thousandth time won’t change that. So please please please: just don’t do it. OK?

POSTSCRIPT 2: That goes for Windows vs. Linux too.

This is exactly why Microsoft operating systems and applications have so many security problems. No matter how bad it gets, Kevin is not going to switch to a competitor. You can bitch and moan all you want, Kevin, but as long as you’re giving your money to MS, they have no financial incentive to improve their software.

Obligatory disclosure: I’m president of the Memphis Linux user group, GOLUM. And before I became a Linux geek, I was a Mac geek.