A Stitch in Haste

(MAJOR UPDATE BELOW.)

On the one hand, I've been pounding the table for quite some time that the nature of marriage qua legal status is extremely important and cannot always be replicated by gays under federal DOMA or in states with "mini-DOMA" laws.

On the other hand, I've emphasized in the Schiavo tragedy that Michael Schiavo's status as Terri's legal guardian is not, or ought not be, plenary.

Which raises the question — has Michael Schiavo forfeited his spousal power over Terri given his conduct?

My Little Corner phrases the issue well:

I've heard several commentators refer to Michael Schiavo's living arrangements as being a common law marriage. Common law marriage has not been recognized in the state of Florida since, oh, 1967 or thereabouts. Common law marriages in effect at the time were "grandfathered" into the law, but no relationship after that would be considered as common law. Just living together and having children together does not create a common law marriage.

As I commented at that post:

Where I come from (New York), what Michael Schiavo is doing isn't called common law marriage. It's called adultery.

Ironically, under New York law Terri could divorce him for it and he would forfeit his "legal guardian" status.

Now I know exactly nothing about Florida marital law (I'm told it's a no-fault divorce state), and I don't even know that much about New York marital law, but I wonder why the Schindlers waited until it was far too late to pursue this course (i.e., of trying to obtain a divorce for Terri). I don't think it's too much of a cognitive leap to posit a rebuttable presumption that a spouse, even one in Terri's condition, might want to divorce an adulterous spouse who has fathered two children out of wedlock. (SIDEBAR: The response seems to be that, since the trial court has found, rightly or wrongly, that as a question of fact Terri's wishes were to die by dehydration, divorcing Michael would have been irrelevant — her parents still could not have ordered the reinsertion of her feeding tube.)

What was it that Rehnquist said about "taking the bitter with the sweet"? If Michael Schiavo wants the power of a spouse, then he should have honored the duties of a spouse and kept his zipper up.

And before the comments start flying, let me say, yet again, that I am not arguing for keeping Terri Schiavo alive. I am arguing for not letting her die by dehydration, which is gruesome and inhumane. If you believe in humane euthanasia — as I do — then fine. But this ain't it.

MAJOR UPDATE: If you think the issue is moot because Terri will soon be dead, or because of the jurisprudential sidebar I mentioned above — it isn't:

So bitter and vindictive is the family feud over whether Terri Schiavo lives or dies that her husband and parents couldn't even agree on what priest should administer last rites or what should happen to her body after death.

Once embraced by them, Michael Schiavo hasn't spoken to his in-laws, Bob and Mary Schindler, since 1993. The Schindlers have fought his effort to remove his brain-damaged wife's feeding tube so she can die, painting him as an abusive monster who wants her out of the way so he can inherit her money and marry his longtime girlfriend. They've tried for more than a decade to have him removed as Terri's guardian.
...
Michael Schiavo has restricted who may visit his wife and when they can come, and a judge was asked recently to sort out such issues as whether the Schindlers could take photos of her before her death and what would happen to her body.

"I think a lot of the reason Michael is doing this is because of vindictiveness and maybe anger toward my family for whatever reason," said Terri Schiavo's brother, Bobby Schindler. "It doesn't make any sense to me why he's doing this."
...
The Schindlers had asked Circuit Judge George Greer to allow Terri to be buried in Florida with her body intact, but the judge refused to intervene in Michael Schiavo's plans to have her cremated and interred in their native Pennsylvania.

In a court filing, the Schindlers insisted that Terri would not choose cremation. "To Mrs. Schiavo and her nuclear family, burial without cremation is a central tenet of the Roman Catholic faith," the motion said. "They are wholly motivated by their religious belief that burial without cremation will comfort Mrs. Schiavo in death."
...
The Schindlers wanted to take photographs and video of their daughter before she died, but Michael Schiavo opposed it and Greer agreed with him. The Schindlers also were unable to persuade Greer to grant their daughter a divorce so she could die with the Schindler surname.

Michael Schiavo agreed to have a priest give last rites to his wife, but when the Schindler family priest, Monsignor Thaddeus Malanowski, went into her room shortly before her feeding tube was removed March 18, he found another priest at her bedside, one who was brought in by the hospice at Michael Schiavo's direction.

Still think an adulterous spouse should unconditionally have plenary and irrebuttable "legal guardian" status?

Related Posts:
On Terri Schiavo
More on Terri Schiavo
One More Schiavo Post

Steve Landsburg’s latest Slate piece, on Terri Schiavo and respecting or disregarding the wishes of the dead (or not dead, or not quite dead), is generating quite a buzz. See the posts, and comments sections, at Asymmetrical Information, Catallarchy, Outside the Beltway and Marginal Revolution.

I have two problems with Landsburg’s “a corpse is just another resource” thesis, (three if you include its straightforward offensiveness). First is his less-than-a-sentence glossing over of why his argument is tautologically invalid:

Suppose there is a segment of the population who wants to censor, oh, say, the radical thought of William Saletan. Many of us get a lot of pleasure from reading Saletan, but the anti-Saletanians would get (let us suppose) far more pleasure from banning him. Once we've agreed on an appropriate way to measure that pleasure, a strict cost-benefit analysis might argue for a ban from which a libertarian would recoil.

But Landsburg knows damn well that there is no way to measure pleasure across individuals. Interpersonal utility comparisons are impossible. I can make intrapersonal utility comparisons for myself (e.g., I prefer a Snickers Bar over a Milky Way bar; I prefer a dime over an issue of the New York Times), but between two people who both like Snickers Bars it is meaningless to ask who “prefers” the Snickers Bar more or who would get “more utility” from the Snickers Bar. So, since there can be no “appropriate way to measure that pleasure” (Landsburg’s term), the whole rest of his thesis (i.e., that a “cost-benefit analysis” over whether to censor Saletan, or who “values” Terri’s body/corpse more) is nonsense.

The second criticism I have is an error or omission on Landsburg’s part – another reason why we respect both the dead (i.e., corpses) and the wishes of the dead. I made a similar argument in a previous post on animal cruelty.

While it is correct that, “animals have no rights” (i.e., they are living but non-human) and “corpses have no preferences” (i.e., they are human but non-living), we nevertheless show them “respect” because not to do so imposes externalities on living human beings. In other words, we are not so much respecting animals and corpses so much as we are respecting ourselves by not disgusting each other through tasering pigs or using corpses as crash-test dummies. The pig doesn’t count. The corpse doesn’t count. But I count and you count.

Now circle back to Terri Schiavo. Since interpersonal utility comparisons are meaningless, we cannot, as Landsburg proposes, somehow “measure” whether Michael Schiavo or Terri’s parents would derive “more utility” from the control of Terri’s corpse. Neither can we “maximize social welfare” by repackaging Schaivo’s corpse as a “resource” to one or both sides. We can, however, directly observe the externalities to society that are generated whenever we hear tales of disrespect for the dead.

Despite the fact that Landsburg calls himself a “libertarian,” he seems to have quite a penchant for central planning (e.g., my previous post). One of the worst tricks central planners use is to invoke false interpersonal utility comparisons (remember the monstrosity known as the “social welfare function” from your basic economics class?). The notion that playing fast and loose with the dead somehow “maximizes social utility” is both anti-social and anti-utility.

And it’s definitely not libertarian.

POST SCRIPT: You saw the story about corpses as crash dummies – but did you see this?

Because what better way is there to protect one's privacy — and mourn a supposed loved one — than by scoring an advance from a publisher? Can a made-for-TV movie be far behind?

The working title of the "kill-and-tell" memoir is "Terri: The Truth."

I wonder how truthful he'll be about committing adultery and intentionally conceiving children out of wedlock. Or will he be too busy reminding us that he was, as Terri's legal (and therefore presumably devoted?) husband, he was also Terri's legal guardian?

Because, remember, he loved Terri so much that he just had to dehydrate her to death.