Karen De Coster critiques the IP and gay marriage theory of Kelly Hollowell here. I wrote Dr. Hollowell the following email in response to her piece.
“Dr. Hollowell,
As a fellow patent attorney, and also as a libertarian and personally conservative person–I wanted to just say that your argument re gay marriage seems weak to me. First, it is based on a given unconstitutional statute legislated by an assembly of men, the Congress. I.e., it’s just an argument from authority, and a bad one [bad authority, I meant] at that; combined w/ an argument by analogy.
Careful thought shows this is really a debate about semantics. If the state exists, of course it should enforce contractual agreements. If 2 or 3 or more people who cohabit want to form some kind of social unit for various purposes, so be it. The law should not ask what sexual activities people are engaging in. If 2 spinster sisters live together and want to unite their estates, why not, if they find it useful. It’s just a civil or contractual union. A way of pooling their assets, and of delegating authority to each other to make decisions for one another in cases of incapacitance/death. So then the question is what do “we” “call it”. I would not call it marriage, if 2 homosexual men lived together and contractually united their estates etc. Some others might. I am free not to; others are free to call it what they will.
So should the law–state law–“recognize” gay marriage? The question is just confused. It should enforce agreements. Sure. Those include the agreements ancillary or incident to traditional (heterosexual) marriage, and other agreements. So if there is a state law (e.g., a state) that allows this… I guess the only question is what should the *label* or header of the statute be? What *word* should be used to describe the voluntary unions that state courts will enforce? Is it really a big fight that the word “marriage” not be “officially” used by the states? Bah. Ridiculous. I agree, they should not; but is this really what the fight is about?
To my mind this is all just a symptom of decaying morals. Yes, they are decaying; yes, regular mariage is in trouble. Not because gays might, or could, marry; but because of the decline in morals which makes that possible. Banning a symptom of a decline in morals won’t change the cause.
My view is that the main problem with recognizing gay marriage (aside from what this trend says about the shift in underlying morals) is that it gives ammo to the leftist-gay groups to demand affirmative action/equal protection etc. As long as it is illegal, it’s hard for them to persuade courts or legislators to insist they have to be treated as a suspect class etc. And I do believe that is their goal. But why not be honest in our counter: that there is nothing wrong w/ the law enforceing agreements, even ones that some would privately label “gay marriage”; but that we oppose it b/c it’s the nose under the camel’s tent, and besides, gays can easily achieve most civil benefits of marriage now by careful use of wills, living wills, trusts, powers of attorney, etc.
Sincerely, Stephan Kinsella”
