Same-Sex Marriage’s Effects on Mine

6 07 2007

Filed under: Homosexuality, Same-sex marriage, Liberalism, Humanism

Joe Carter has a post up that poses the question, “Is marriage a form of intellectual property?” In it, he responds to an article by Yale Law professor Kenji Yoshino in which he uses that premise as the foundation for a strawman argument for same-sex marriage.

Liberals are forever justifying same-sex marriage with claims that it doesn’t harm others’ marriages. Yoshino’s strawman arguments turn out not to be straw.

The law of trademark, particularly the doctrine of tarnishment, is particularly illuminating here. 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.

Joe cites this example: “Coca-Cola sued and won in the case of the “Enjoy Cocaine” slogan, which was written in the same font and color to mimic “Enjoy Coke.” The court believed that some consumers might believe that the Coca-Cola company had had produced the t-shirt.”

But tarnishment analysis cannot justify the objection it illuminates for at least two reasons. First, intellectual property law seeks to protect 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.

Second, and probably more importantly, the tarnishment analogy reveals the homophobia in Hyde’s claim. Tarnishment claims arise only when the mark is being associated with something uniformly deemed unsavory. The paradigm case is a famous mark used in a sexually explicit context, like the 1996 case in which the game manufacturer Hasbro successfully barred a sexually explicit Web site from using “Candyland” as part of its domain name. 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.

Joe responds to the two claims:

Take, for instance, his first claim that “No such claim can be made about state-sponsored marriage, because no individual invented marriage, and no individual owns it.” That begs the question of how Coca-Cola was able to sue–and win–a tarnishment case when no one alive at the company invented the product and no single individual owns it.

The answer is that the intellectual property rights transferred from John Pemberton, the inventor of Coke, to the legal fiction known as the Coca-Cola Company, an entity owned by numerous individual shareholders. Likewise, though no individual invented marriage, and no individual owns it, the rights of such unions are transferred to the individuals who are joined in civil marriage.

The second reason is an even more obvious fallacy. Yoshino claims that the tarnishment analogy reveals the homophobia in Hyde’s claim. This argumentum ad homophobe (a subspecies of argumentum ad hominem) does not address the substance of the argument nor does it produce evidence against the claim. It merely dismisses it as homophobia.

If Yoshino is unaware of the legitimate “tarnishment case” he should read David Blankenhorn’s The Future of Marriage. Blankenhorn, a liberal Democrat and supporter of gay rights, is a reluctant convert to the cause against same-sex marriage. Yet he consistently and forcefully maintains, as he did in an interview with MercatorNet, that it will weaken marriage as an institution:

MercatorNet: How important is the same-sex marriage issue to the future of marriage?

Blankenhorn: Same-sex marriage is one part — probably not even the biggest part — of the larger threat to the institution. We could probably deinstitutionalize marriage without adopting gay marriage, but gay marriage clearly presupposes and in some respects requires deinstitutionalization.

This became clear when I analysed data from the 2002 International Social Survey Programme. The countries with same sex marriage were also the ones where support for marriage as an institution was weakest — where people tended to accept single parenthood and divorce, for example. Countries with marriage-like civil unions showed more support for marriage, those with only regional recognition of gay marriage showed more support still, and those without either gay marriage or civil unions were most supportive of all.

Same sex marriage may not be the main cause of weak support for marriage but the two clearly go together. Same sex marriage is not a sign of a strong marriage culture.

In attempting to set up a strawman argument for same-sex marriage, Yoshino has fabricated a block wall, one that supported the argument against same-sex marriage far more than it debunked it.

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2 responses

14 11 2008
beetlebabee

I agree. It’s about more than just letting them have their way, they already have all the legal rights in California, they already have the state’s blessing. All they don’t have is the word “marriage” and the religious moral endorsement that it implies.

What they really don’t like is the idea that some people have deeply held personal beliefs that same sex marriage is wrong.

What has happened SINCE it passed is just unconscionable…some people just don’t like being told no. There is a big idea out there that gays are entitled to what they want, whether we like it or not, whether we vote on it or not, whether we live in a democracy or not.

http://beetlebabee.wordpress.com/2008/11/14/trifecta-government-vs-the-people/

15 11 2008
Mr. Incredible

==…they already have all the legal rights in California…==

That’s correct. Those who claim to be homosexual may already marry.

A man who claims to be homosexual may marry a woman who is homosexual. The law doesn’t discriminate there.

The law also doesn’t discriminate against anybody cuz it refers to “man” and “woman,” and everybody, including those who say they are homosexual, are either men, or women.

==All they don’t have is the word “marriage” and the religious moral endorsement that it implies.==

Yes, they do, as I say above.

==What they really don’t like is the idea that some people…==

Most people.

==… have deeply held personal beliefs that same sex marriage is wrong.==

That’s cuz God has a deeply-help, personal belief that it’s wrong.

==What has happened SINCE it passed is just unconscionable…some people just don’t like being told no.==

Like children.

== There is a big idea out there that gays are entitled to what they want, whether we like it or not, whether we vote on it or not, whether we live in a democracy or not.==

Less than 2% of the population — if you believe that figure — telling the rest what to do.

They also say that it’s none of our business. Yet, it is Hillary Clinton, on THEIR side, who says, “It Takes a Village.” I’m in the “village.” It’s MY business.

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