Marriage, TrademarkedHow to understand—and answer—the claim that same-sex marriage demeans the institution.
Posted Monday, July 2, 2007, at 2:56 PM ET
A week ago Sunday, Elizabeth Edwards kicked off the San Francisco gay pride parade by expressing support for same-sex marriage (taking a position that her husband John Edwards doesn't share, apparently without telling him first). "I don't know why somebody else's marriage has anything to do with me," she said. "I'm completely comfortable with gay marriage." Her stance is refreshing and laudable. But to persuade others to take it, we need to understand why many Americans think gay marriage has everything to do with straight marriage. Their intuition may be best understood through an obscure bit of intellectual property law.
Conservatives have long made the argument that gay marriages will negatively affect straight marriages. In a 1996 congressional debate, Rep. Henry Hyde said the very idea of same-sex marriage "demeaned" his marriage. As if anticipating the more personal question of whether same-sex marriage would demean his marriage more, say, than his adulterous affair*, Hyde jumped up a level of abstraction: "It demeans the institution." He is far from alone in this belief. Many of the 44 states that define marriage as between one man and one woman denominate these statutory or constitutional provisions as "Defense of Marriage" Acts. The name cleverly treats same-sex marriage as an assault on marriage rather than as a more inclusive form of that institution. This objection is importantly distinct from practical objections to same-sex marriage—like the contention that marriage is about procreation. What is being defended is not the purpose of the institution, but its honor.
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StumbleUponElizabeth Edwards is understandably puzzled by this formulation. 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.
But the objection snaps into focus when you look at marriage as a form of intellectual property (as my colleague Carol Rose, an expert in property law, encouraged me to do). 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.
The best-known example is the "Enjoy Cocaine" slogan, written in the same font and color to mimic "Enjoy Coke," that one manufacturer put on a poster. Coca-Cola sued over that and won, in part because the court felt some consumers might believe it had produced the shirt. Importantly, however, you can win a tarnishment claim without such confusion about the source of a product. Judge Richard Posner gives the hypothetical example of a strip club that calls itself "Tiffany." No reasonable consumer would think that the jeweler Tiffany had branched out. But "because of the inveterate tendency of the human mind to proceed by association," Posner writes, "every time [consumers] think of the word 'Tiffany' their image of the fancy jewelry store will be tarnished by the association of the word with the strip joint."
To people like Henry Hyde, the idea that same-sex marriage demeans or assaults the institution of marriage is a tarnishment claim. It doesn't matter that he can still marry a woman. If a woman can also get married to a woman, he feels the value of his trademark has gone down. Even those who regard cross-sex and same-sex marriage as separate institutions will conjure up both when they hear the term "marriage." So now we have an answer to Edwards' query about what another person's marriage has to do with hers.
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.
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.
Correction, July 3, 2007: The original sentence incorrectly stated that Hyde had been married three times. (Return to the corrected sentence.)
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Remarks from the Fray:
Is it just me, or did that article make absolutely no sense? The way I read it:
First premise: an analogy can be drawn between the IP doctrine of "tarnishment" and the notion that gay marriage demeans traditional straight marriage.
Second premise: but the analogy is not appropriate, because the IP doctrine is designed to protect something entirely different than what the anti-gay marriage folks are supposedly trying to protect.
Conclusion: Therefore, the anti-gay marriage people are wrong to think that gay marriage will demean traditional marriage.
Shouldn't the conclusion be "therefore, the IP analogy doesn't really fit, and I should move onto some other argument?" I mean, because the IP concept isn't appropriate doesn't at all mean that there are not valid reasons for the traditional marriage folks to believe gay marriage demeans their institution.
I'm a huge advocate of gay marriage, but found this piece entirely unpersuasive.
--goletada
(To reply, click here.)
Has anyone ever stopped a moment to consider just what this much battered and abused institution we call marriage actually is? Seriously.
In this country, it is perfectly legal to have sex with as many consenting adults as you wish. You can buy a home with one, two, three, or as many title holders as you wish. You can put anyone you want in your will and name anyone you want as having privy to your medical records. It is no longer a requirement that you are married to adopt a child, and women are no longer legally subordinate to men.
So, what is it that makes marriage special? Is it really just inheritance and hospital visitation hassles? Those laws could be changed and you wouldn't hear a peep from cultural conservatives. But that isn't what gay rights advocates really want, is it?
No, what makes marriage special is that it still conveys, despite all the abuse heaped upon it, society's (and God's) blessing of a certain sexual union. Not tolerance. Tolerance everyone already has to boink anything over the age of 18 that breathes.
No, marriage is special because it says that this particular type of relationship is a positive good to be encouraged, not just one to be allowed. And if you want to violate the received wisdom of the entire recorded human race up until maybe the last 15 years or so, you'd better have a darn good argument in your favor. Because marriage is about more than just hospital visitation and inheritance rights.
--the true conservative
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The author of the gay marriage article seems a bit dense. It's a nice analogy, the trademark argument, but it's not a refutation. In fact, tarnishment is exactly what Henry Hyde was asserting, and it is precisely because hetero marriage is sacred and gay marriage is profane - just ask Leviticus.
So the tarnishment concept acts to allow Christians to operate, as they often do, in code, so that they can put their desired policies into effect in the political realm without being accused of encoding religion into our laws.
Just like "local control" in environmental politics is code for "man's dominion over the earth," and defense of Israel is code for "bring on the end times," "diminishment" of marriage is Christian Code for "those gays are all blasphemous, filthy b---f------rs."
So just exactly how is our author going to refute that?
--Certainly
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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 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.
--Childress
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