Marriage, Trademarked—A Commentary by Kenji Yoshino ’96
By Kenji Yoshino ’96
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 which of his three marriages would be most demeaned, 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.
Elizabeth 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.
Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.