Directly or indirectly, state governments legislate morality. I mean they either ban some actions or encourage others. It is not unusual for states to proscribe actions judged to be immoral (or unsafe), whether by penalties or by heavy taxation and regulation that effectively restrict them. That is true of at least three measures on California’s general election ballot on Nov. 8.
Propositions 56 (more taxes on cigarettes), 60 (requiring condoms for “adult” film actors) and 64 (legalizing marijuana) exemplify the states’ power to regulate morals. Granted, this is more obvious in some cases than in others, but I believe the generalization holds.
As a non-smoker for many years, I appreciate the bans on public smoking enacted since the crusade against the “nicotine habit” commenced half a century ago. Taxes are another matter. The current measure to increase the cigarette tax by $2 strikes some as necessary to discourage smoking but others see it as unduly punitive on a declining segment of the citizenry.
Taxes on what used to be called “vices” are hardly new, even if unpopular with those committing them. When the new federal government imposed a tax on whiskey in 1793, distillers revolted, but they were suppressed and such taxation has been a fact of life ever since.
Supporters of Proposition 56 do not claim that smoking is immoral, but cite a $3.58 billion price tag for the health care costs of smokers. That implies that non-smokers are being unfairly burdened by the bad habits of a declining share of the population. But that raises a dilemma.
Supporters concede that revenues from cigarette taxes (to be raised from 73 cents to $2.73 per pack) may well fall because of declining tobacco use or black market purchases. But they hope that the sheer size of the increase will make up for the expected loss. In their desire to discourage smoking through state prevention or termination programs, though, they may be short of funds for that purpose.
In short, smoking opponents need smokers to fund their anti-smoking programs. This is an example of what economists call “the law of diminishing returns.” Taxation is designed to generate revenue but too much of it discourages use of the product being taxed. Several affected state agencies may even struggle to maintain their existence.
The measure regulating the pornography business is safe from that danger because the authorized state agency (the Occupational Safety and Health Administration) regulates far more workplaces than “blue movie” sets. As supporters and opponents of Proposition 60 tacitly agree, its intent is to drive “adult” movie makers out of business.
Libertarians, who are found in both the Republican and Democrat parties, see no reason to restrict pornography by law, whatever their personal opinion. Nevertheless, existing California law has already had a significant negative effect. The proposed requirement of condoms, proponents say, only buttresses existing regulations.
Regulation is usually defended on the grounds that it only imposes common sense limitations on actions otherwise deemed lawful. Not here. The so-called “law of unintended consequences” is irrelevant for this measure, as diminution of the porn industry is precisely what is intended.
But encouragement is the goal of the measure to legalize marijuana, currently permitted only for “medical” purposes when prescribed by a doctor. That is, a campaign to give the state’s blessing to a hallucinogen includes heavy regulation and taxation on anticipated heavy use. Because the people of this state are being asked to lift current bans on marijuana sales and consumption, one can conclude that it is being judged to be not bad, perhaps even good.
When we recall that tobacco smoking has been condemned for decades as unhealthy and unwise, it is amazing that inhalation of smoke from another source is being encouraged. Indeed, the Legislative Analyst reports that some studies have found that it can cause cancer. So, smoking tobacco is “old hat” but smoking marijuana is “cool”?
The legalization of marijuana in Colorado should give us pause. Traffic accidents caused by “stoned” drivers have gone up (completely predictable), and Proposition 64 mandates nothing comparable to maximum alcohol levels, leaving that to as-yet non-existent “studies.”
If that isn’t enough, there is every reason to expect that the price of marijuana will go down as a consequence of legalization. That ensures that more people will use it and, despite its applicability only to adults, that includes minors too. For “sharing” has long been the case with tobacco and alcohol.
Herewith, I state another “law.” Legalization of certain acts or products implies approval, and many will be encouraged to act on that assumption. For the law always teaches us what is right and what is wrong. Thus, all law imposes morality. But sometimes the law makes mistakes.
Richard Reeb taught political science, philosophy and journalism at Barstow Community College from 1970 to 2003. He is the author of "Taking Journalism Seriously: 'Objectivity' as a Partisan Cause" (University Press of America, 1999). He can be contacted at email@example.com