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:
- 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."
- 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.
Tags: massmarrier, tarnishment, amendment, Elizabeth Edwards, same sex marriage, Yoshino