The dilution problem and other arguments against same-sex marriage: how persuasive are they?

Author:Crumlat, David
  1. THE CONTEXT OF THE ARGUMENTS, FROM SYMBOLISM TO CLAIMS ABOUT EQUALITY A. Is the Issue only About Symbolism if the State Provides Equivalent Rights? B. What Weight Should Be Attributed to Unexplained Invocations of Equality or Discrimination? II. INTRODUCING THE "DILUTION ARGUMENT"--AND THE CONTRARY POSITIONS OF SAME-SEX ADVOCATES A. Negative Effects on Traditional Marriage, Analyzed from an Analogy to Trademark Dilution B. Arguments Against the Dilution Argument III. OTHER ARGUMENTS AGAINST SAME-SEX MARRIAGE A. Government Arrogation and Use of Religious Symbolism for Secular Ends B. Incursions upon Freedom of Religious Exercise C. Slippery-Slope Effects: Does the Same Principle that Assertedly Supports Same-Sex Marriage Require Extension to Other Sexually-Oriented Combinations? D. Interstate and International Effects: Will These Sovereigns Respect Each Other? E. The Unknown, Including Effects on Children CONCLUSION Few issues today create so visceral a reaction, among so many people on both sides, as same-sex marriage. (1) The cultural reasons for

    this reaction are beyond the scope of this Article, but for better or for worse, the reaction is the context in which the issue is debated. Therefore, civil discourse about same-sex marriage is especially important. Advocates for same-sex marriage have made their arguments plain in the literature of the law, (2) and they have won some, if not all, of the battles. Several states have adopted laws authorizing same-sex marriage, either after judicial intervention or by legislation undertaken independently. (3) Meanwhile, most other states have rejected the idea. (4) In any event, to examine the issue competently, an analyst needs to consider the arguments against same-sex marriage, which have been developed less in legal literature. (5) After being informed by both viewpoints, a critic of either position has the ability to compare reasons and values and to make a decision--as well as to formulate counterarguments. Iris the purpose of this Article to examine the lesser-described viewpoint in legal literature: the case against same-sex marriage.

    In addition to placing the psychological reasons for visceral controversy beyond the reach of its subject, this Article will avoid some other related issues. For example, the Article is not about the constitutionality of prohibiting or authorizing same-sex marriage, even though it will be necessary to consider some constitutional arguments because they can be restated as legislative arguments.

    The Article assumes freedom in the legislature to make either choice. The constitutional issue is important, (6) but the arguments before legislatures are also important. There is another issue that this Article will avoid. It will not attempt to evaluate the weight of the arguments developed and analyzed here when they are compared to the arguments of the other side. The purpose of this Article is to identify and describe the arguments against same-sex marriage, so that people of good will on both sides of the debate can consider what they are worth. In other words, although the Article will develop what the arguments are (and what they are not) and will analyze their meanings, the Article will not take an explicit position for same-sex marriage, and it will not take a position explicitly against it.

    The first section of the Article deals with two contextual matters. This section begins by considering the separation between the rights given by marriage and the symbolism of marriage. If the State provides all of the rights and benefits of marriage to same-sex couples, and if the only issue is whether unions of those couples are to be called "marriages," the issue is different than it would be without those rights and benefits. The controversy reduces, perhaps, to an argument about symbolism. (7) The argument for same-sex marriage may be stronger to some legislators in states where same-sex unions do not exist or where they create lesser rights. This Article does not take a position about that issue---whether same-sex and heterosexual couples should or should not have similar rights and benefits--but it assumes that the State can provide similar entitlements if it so chooses without affixing the marriage label, and therefore, that the controversy is about the symbolism of marriage, (8) Of course, symbolism is important, but the point is that the argument becomes different to some people if symbolism is all of it.

    Then, a second part of the first section continues to set the context by considering whether the issue is properly argued if it is framed in terms of equality or discrimination without explanation of how those concepts apply. (9) There are many versions of equality, and there also are many occasions for treating people and things differently, and both problems respond to many types of reasoning. To put it another way, an invocation of equality assumes that it can be supported by an explanation telling why a particular classification is similar to another classification and why the similarity is relevant to the claim of equality that is in controversy. Equality and discrimination are important, obviously, but they have meaning only after an advocate has established why these labels apply. (10) The Article will not conclude that prohibition of same-sex marriage is equal, or that it is unequal. Those are ultimate conclusions, to be reached only after the homework of figuring out the arguments has been done.

    A second section begins the real work of the Article, by developing the arguments that might be asserted against same-sex marriage. It begins by considering the effects that recognition of same-sex marriage could have upon traditional marriage. An analogy to trademark dilution is relevant here. (11) A producer of a valuable product, with identifiable symbols, has an interest in not having a competitor use the same symbols. But even beyond that interest, which amounts to preventing trademark infringement, the person dependent upon a valuable symbol has an interest in avoiding the dilution of the symbol by persons who do not infringe but who use the symbol for non-infringing, unrelated products. The law is clear in recognizing this interest against trademark dilution. And protecting the symbolism of marriage against dilution arguably is more important to our society than avoiding dilution of trademarks.

    Many people believe that the sanctity that they invest in marriage would be diluted if marriage were redefined so that it covered what they consider to be different kinds of relationships. (12) There is room, of course, for the argument that same-sex marriage will not discourage traditional marriage, but the truth is that it would be difficult to prove this proposition. The "dilution argument" therefore may be the strongest part of the case against same-sex marriage. It is this argument that same-sex advocates should expect to have to overcome. The Article next analyzes various arguments that same-sex advocates have used to debunk the contrary arguments of their opponents, and it considers whether these arguments effectively address the dilution issue.

    The third section of the Article raises additional issues. There are other arguments against same-sex marriage, although they may not carry as much weight as the dilution issue does. For example, same-sex marriage legislation could impinge upon religion in ways that create both establishment and free-exercise concerns. Marriage has not devolved in the United States as a completely secular institution. It has deep religious roots. One of the issues in religious freedom and in non-establishment is avoidance of the use of sacred symbols by the State for secular purposes. (13) A related, but separate, argument involves the possibility that authorization of same-sex marriage will interfere with the free exercise of religion or with the rights of religious people--and indeed, it already has. (14)

    Then, too, the arguments include the danger of a slippery slope. If a State authorizes same-sex marriage, it may make sense to ask whether there are other groups that can make similar claims upon the right to marry, and indeed it may be that it will become theoretically difficult to justify denial of other extensions of marriage entitlement that otherwise would never have been intended. (15) Yet another argument is created by interstate effects. Choices by some states may interfere with the public policy of other states. (16) Finally, there is the argument that we do not know of the potential dangers of changing an institution as important as marriage. Effects upon children raised in the context of same-sex marriages are another point of controversy. (17)

    The Article concludes with an evaluation of the relative merits of these arguments. As the Article does throughout, the conclusion does not attempt to state whether the arguments against are stronger than the arguments for the extension of same-sex marriage, but it does consider the persuasiveness of each argument opposing same-sex marriage as against each other argument on the same side. The ultimate conclusion is that the dilution argument outweighs the other arguments, although whether it is persuasive depends upon its comparison to arguments for same-sex marriage, in a way that is not subject to exacting proof.


    1. Is the Issue only About Symbolism if the State Provides Equivalent Rights?

      In Strauss v. Horton, (18) the California Supreme Court considered the constitutionality of an initiative that had the effect of inserting a prohibition upon same-sex marriage into the state constitution. An initiative is one of two methods of changing the California Constitution. But the initiative method can be used only for changes that are not pervasive, and if a particular change amounts to a more extensive "revision" of the constitution, it can be accomplished only by...

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