Mr. Yoshino writes:

"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."

The argument remains remarkably similar to that made by G. K. Chesterton's very modern policeman:

"Bigamists respect marriage, or they would not go through the highly ceremonial and even ritualistic formality of bigamy. But philosophers despise marriage as marriage. "

The trouble, of course, is that proponents of gay marriage insist that there is some invisible line that makes discrimination against gender invidious, but against number acceptable. Homosexual marriage respects marriage; polygamous marriage simply isn't marriage at all.

The argument regarding denigration of the institution of marriage has nothing to do with trademark law. It has everything to do with institutional coherence and the method by which social change is to occur. If I agree with Chesterton's policeman, and yet I respect marriage not only as an act but as an institution, then I should seek to change it by convincing my fellow citizens that the institution would be more full and wonderful in a new form. This is not what has happened: gay marriage, in the one state in which it has been instituted, survives because it was birthed by the judiciary and defended by institutional rules that require a supermajority of voters to overturn the decision of a legal elite.

The institution thus leaves the hands of those whose honor is required to uphold it. The majority has no investment in this "new" concept of marriage, bereft of tradition, devalued to a mere nexus of contracts and wellspring of tax benefits. Why should that majority, who attends the weddings and instructs its children in the value of fidelity, invest the effort to support the old tradition when its underpinnings will be threatened by the next set of "modern policemen" than Yoshino chooses next to champion?

It may be that gay marriage is the right policy. Indeed, I believe it is. But the idea that gay marriage as instituted by Goodridge values marriage rests on an idea of institutions that, as Chesterton showed, makes sense mostly in farce and nightmares.

Since when is there any evidence that proponents of gay marriage are opponents of bigamy? I apologize that I can't offer citations, but I've read, on Slate and elsewhere, on more than one occasion, quotes from proponents of gay marriage that their goal is not so much a society of persons regarding gay-two-person-marriages as normal, as a society without any oppressive mores on the subject whatsoever. It is not, perhaps, so much a goal specific to a particular kind of pairing as it is a revolt against a specific enemy: the heteronormative ethos.

And certainly the legal advocates of bigamy and other more-than-two-partners aggregations are fond of using the same legal arguments as those used by proponents of gay marriage. I envision a natural alliance between the two causes. And why not? Their arguments are the same; any prior legal success of one such argument for gays makes the success of the same argument for other nontraditional groupings a virtually guaranteed win. Provided consenting adults are involved in all cases, where is the compelling state interest forbidding shared sexuality, property, and parenting duties amongst, say, three men, four women, and one transsexual?

(Or, at least, that is the logic as it is commonly presented.)

There are no scientific, historical, mathematical, or Constitutional reasons for the government to promote homosexual conduct with a license. In addition, the biological design of the human species reproductive system is completely inconsistent with homosexual conduct. ONLY political reasons exist to terminate current one-woman one-man marriage laws while science, studies, biology, history, math, and moral values must be discarded. Once the one-woman one-man marriage laws are eliminated, what grounds would the governent have to deny groups, threesomes, four women, brothers and sisters or any combination of individuals imaginable from obtaining a marriage license? There are no logical explanations for the government to reward homosexual behavior with a licenced recognition promotion.

OK, then, what similar reasons are there for the government to license heterosexual marriage?

I can see a case there for them to be licensing parenthood, but none for marriage.

Why should childless heterosexual couples get tax breaks, inheritance rights, rights to make decisions on behalf of their spouses etc that are not granted to homosexual couples?

Mr. Paine:

The simple and most obvious reason is that we, as a society, have voted to provide heterosexual married couples with certain benefits. This may not be wise, but I would put to you that a great many provisions of the Internal Revenue Code are, in one way or another, not particularly wise. Nevertheless, the beauty of the institution is that you need not see what the case may be for such subsidies: they exist, and if you find them offensive, you may campaign to remove them.

Nevertheless, an attempt at an answer as to the non-tax portions. Why should childless heterosexual couples get inheritance rights? In most states, the inheritance rights of a spouse are either (a) a matter of default provision if the deceased dies intestate or (b) a matter of an elective share (or other such compulsory provision). The former is merely a shorthand default rule that unmarried couples can (and do) mimic. The latter exists as a rough and ready tool to prevent injustice on the part of one spouse in divesting the other of assets that may be in the name of the (soon-to-be) deceased but may reasonably be assumed to have been developed with the input of the other.

The same can be said of the rest of the rights you mention. They're mostly shortcuts. Married couples are generally assumed to grant each other certain rights. These rights can often be granted to a non-married party by contract or other provision, but it is administratively easier for the state to implement a set of default rules for married couples than to require every couple to create powers of attorney, asset division agreements, etc. upon their partnership.

Hence the appeal of "civil unions." The state uses an older institution--marriage--largely as an administrative convenience. Civil unions allow the state to adopt the same rough-and-ready set of assumptions for homosexuals without enforcing an alteration to the pre-existing institution of marriage.

Same-sex marriage proponents suffer a fundamental crisis of incoherency. If the benefits of marriage are a right that cannot be denied to same-sex couples, they bear the burden of showing why this right does not extend to polygamous ones. Given that polygamy is a commonly-practiced human custom (while same-sex marriage is not) and the legal regime for polygamy isn't particularly complex or difficult to adjust (despite some rather unrealistic suggestions to the contrary), such a dividing line is difficult. If, on the other hand, marriage is simply an institution that we as a society are free to democratically define as we wish, then the fact that "you can't see a case for it" has little meaning. Perhaps you can't. If a majority--or at least a reasonably powerful interest group--does see a reason for limiting marriage to heterosexuals, it will remain so limited.

But enforcing same-sex marriage as a right does devalue marriage as an institution, and for reasons that have nothing to do with trademark. Institutions gain their strength and legitimacy from the consent of those that consent to them. Lacking that consent, institutions risk withering.