Tuesday, July 03, 2007

Hey, Guy Couple, You Demeaning Marriage?!


Yes, yes, yes...it's lazy to point to a good blog post. It's a good one though. Over at Slate's jurisprudence blog-like-object, Yale Law Prof. Kenji Yoshino goes all rational and legal on the claims that same-sex marriage demeans that one-man/one-woman version.

It's not painful legalese in Marriage, Trademarked, but he clarifies several key issues that anti-gay commentators and legislators hide behind.

He says that another Eli law professor, Carol M. Rose, urged him to consider marriage from the intellectual property viewpoint. While Democratic Presidential candidate John Edward's more equality minded wife Elizabeth has wondered what's going on when legislators such as Rep. Henry Hyde say SSM demeans/diminishes/denigrates marriage. As the post puts Ms. Edwards' views:
After all, gay marriage does not take away any of the rights and duties attendant to straight marriage. Nor are gays intending to denigrate marriage. To the contrary, in seeking the right to marry, gays are asking to join an institution they would similarly honor.
Yet, unless you are a Randist or Libertarian, who are accustomed to interrupting false bases for arguments, you pretty much have to let winger emotional rants run their course. After the speaker gets all the gut talk out, you may be able to bring in some reason.

In this case, Yoshino points to the doctrine of tarnishment as the filter for discussing this claim of damage. He tells us, "A trademark is a mark a person or business uses to brand its products or services. A 'tarnishment' claim arises when a competitor uses that mark in a way that diminishes its cachet."

He points out the two reasons this concept doesn't hold here:
  1. This law protects intangible goods "that belong to people because they have created and built up good will for them. No such claim can be made about state-sponsored marriage, because no individual invented marriage, and no individual owns it."
  2. The basis for the claim here is simply a cover for anti-gay emotions. "To say that marriage would be tarnished by including gays is an oblique way of saying straight marriage is sacred while gay marriage is profane."

John Edwards could look to his fair and reasonable wife — as could front runners Barack Obama and Hillary Clinton. Their arguments for civil unions over full marriage equality may not have the same basis as Hyde's (although Clinton's smack of it), but it appears to be a cynical electioneering ploy to try to please both anti-gay and pro-marriage-equality forces.

Yoshino concludes that it's time to call these absurd claims what they are:
The fear of tarnishment is why some believe gay marriage will negatively affect straight marriage. But it is also the reason they should not be allowed to prevail. If marriage is changed to include all couples who subscribe to its values, the institution will not be tarnished, but burnished.
Read the whole piece. It has pertinent and fun examples of this area of law.

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9 comments:

John Howard said...

gay marriage does not take away any of the rights and duties attendant to straight marriage.

There is a scenario where this could easily happen. If Congress were to pass an anti-cloning law that restricted conception of children to joining a man's sperm and a woman's egg (as Missouri did last year), it would take away the right to conceive from straight marriages if we continued to have same-sex marriages.
Already in their argumentation, pro-ssm people deny that marriages even have a right to conceive, which shows the willingness to strip all marriages of conception rights. Yet it is fundamental to marriage, every single marriage throughout history has had a right to conceive children together, and it is important to our basic civil rights that marriages continue to guarantee a right to conceive children. The only way to resolve this is to have marriages for male-female couples and civil unions for same-sex couples. Otherwise we either have to allow same-sex conception or strip marriage of conception rights, which are both very bad things for human rights.

Mass Marrier said...

John, I know that the cloning thing is your big issue, but your reasoning does not support your conclusions.

Let's set aside the infertile couples and the mechanical flaws. Go back to "pro-sssm people deny that marriages even have a right to conceive." That's way off base. The closest thing like that is the truism that many marriages do not produce children for a wide variety of reasons. No state nor the federal government does or can mandate conception as a condition of marriage.

John Howard said...

Right, I am talking about the issue of allowing or not allowing same-sex couples to conceive together, no one's talking about mandating conception. I'm saying that all marriages should be allowed to conceive together. And people should only be allowed to conceive with someone of the other sex. Same-sex marriage would mean either allowing same-sex conception or stripping every marriage of conception rights.

John said...

"Same-sex marriage would mean either allowing same-sex conception or stripping every marriage of conception rights."

Why?

If same-sex were "allowed" to procreate with each other.(and I can't imagine why that is any of your business), how does it follow that opposite sex couples would no longer have that right?

PG said...

Mass Marrier,

Yoshino is too limited in his IP theory and thus too prone to assume simple homophobia as the motive to create civil unions.

John Howard,

I don't know where you learned legal history, but it's not true that "every single marriage throughout history has had a right to conceive children together."

Even within the United States, people who were deemed "defective" -- regardless of whether they were married -- could be sterilized by the state against their will. See Buck v. Bell, apologized for by the Commonwealth of Virginia, but never explicitly reversed by the Supreme Court of the U.S. States began sterilizing people at the beginning the 20th century and did not stop until the 1970s.

If that was the rule of law in the U.S., you can imagine how nations less committed to individual liberty (Nazi Germany being an obvious example) treated this supposedly universal right of married couples to conceive children together.

As for your concerns about cloning, to my knowledge the Missouri law does not bar all artificial reproduction (i.e., insemination, IVF, etc.), only cloning. Same sex couples, like opposite sex couples who for whatever reason can't or don't want to make babies the old-fashioned way, can have their lesbian eggs united with sperm to make fetuses that the lesbians carry, or their gay sperm united with eggs and carried by surrogate.

If you think same sex couples are sitting around waiting for cloning to be perfected before they procreate, you know little about gay Americans. I have yet to meet the lesbian who is so stuck on keeping her offspring sperm-free that she would undergo 12 miscarriages in order to produce one child (the failure rate to produce Dolly the sheep). And it's impossible for gay male couples to make a baby without a woman's assistance, even if they cloned their cells, because we still have no working substitute for the female uterus.

John Howard said...

If same-sex were "allowed" to procreate with each other.(and I can't imagine why that is any of your business), how does it follow that opposite sex couples would no longer have that right?

John, I said either: "Same-sex marriage would mean either allowing same-sex conception or stripping every marriage of conception rights."

If we allow same-sex conception, SSM would not change the rights of marriage. But if don't allow it, SSM would mean that marriage no longer guaranteed a right to attempt to conceive, whether it was a same-sex marriage or a both sex marriage.

John Howard said...

pg, sterilization affected individuals, not couples. Every married couple has always had a right to try to conceive together, even back in the days when people were sterilized (which was ruled unconstitutional in Skinner v Oklahoma, when "marriage and procreation" were recognized as a "basic civil right of man". Do you see the difference? When a couple is prohibited from conceiving together, the are prohibited from marrying each other, like siblings, fathers and daughters, and "interracial" couples until recently. But each person is still allowed to marry and procreate with someone else. Sterilization was done to individuals, so their procreation was prohibited with everyone. And they were still allowed to marry and try, they wouldn't have been arrested for attempting to conceive with their spouse. I challenge you to find a marriage of two people who were prohibited from conceiving together, rather than people who were (wrongly, unconstitutionally) prevented from procreating by sterilization.
I am saying that people should be arrested for trying to conceive with someone of the same sex (as well as the doctors that facilitate the attempt). And I'm not talking about sperm donors or egg donors, that's still egg and sperm conception, natural conception. I'm only talking about non egg and sperm conception.

John Howard said...

to my knowledge the Missouri law does not bar all artificial reproduction (i.e., insemination, IVF, etc.), only cloning.

oh, and pg, the Missouri law prohibits implanting embryos that are not conceived from a man and a woman's gametes. Same-sex couples do not have a right to conceive together in Missouri, they have to use a third party donor. That law should be a federal law, no state should allow same-sex conception.

John Howard said...

If you think same sex couples are sitting around waiting for cloning to be perfected before they procreate, you know little about gay Americans.

oh, and one other thing, pg: if this is indeed true, then why is it so hard for people like MassMarrier or yourself to agree that same-sex conception should be prohibited? Especially when agreeing to this could be the key catalyst in enacting a federal compromise, giving same-sex civil unions federal recognition? Instead, you all cling to same-sex conception rights, just as a matter of principle, and there are a few crazy doctors and irresponsible, manipulatable couples that would attempt it, in spite of the huge dangers to their child. You should join me in pushing for equal protections now, rather than insisting that same-sex conception remain legal.

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