Marriage: Who Owns the Trademark?

The brouhaha raised by the opposition to Thursday’s decision by the California Supreme Court sounds like a trademark question. Who is legally entitled to claim the title of “marriage”? The court found that the gay marriage was not an infringement on the trademark.

The split decision by the court was not welcomed by everyone.

It was denounced by religious and conservative groups that promised to support an initiative proposed for the November ballot that would amend the California Constitution to ban same-sex marriages and overturn the decision.

These groups think that they own the trademark on “marriage.” But do they, really? I heard several statements from spokespersons for several of these opposing groups and all said they were simply defending “the traditional institution of marriage.” They assert that that we should not fool with an institution ordained of God that has meant the same thing for hundreds if not thousands of years. My question: which “institution of marriage” is covered by the trademark?

In the Judeo-Christian tradition, for which these self-appointed gate-keepers purport to speak, there have in fact been many different “trademarked” institutions of marriage. So my question is which of these old institutions of marriage represent “the institution” that shouldn’t be tampered with today and should be protected by the trademark “marriage”?

Bear with me. Many of you know most of this already, but you may have some cousins in California who have been raised to believe that there is and has been only one immutable institution of marriage, and who will have to vote on this issue in November. Maybe you’ll send this to them, or keep it for when the issue is up for a vote in your state again.

Looking to the Bible is not as simple as it is being made to appear. What the Hebrew Bible (or Old Testament) suggests as a general model for marriage is polygamy – one husband with more than one wife. Women had little status in marriage and were in effect the property of their husbands. They could neither own nor inherit property and had no right of divorce. By the time of Jesus, monogamy had become the ideal, although polygamy was still practiced. Jesus’ pronouncements on marriage mostly address sexual injustices directed against women. In Paul’s view of the imminence of the end, he advocates celibacy. His view was that marriage is good, but in that time of crisis celibacy was better.

By the third century within the Church, St. Paul’s words about celibacy became the foundation for the monastic movement. The importance of marriage between a man and woman was superseded by what was termed “a higher calling,” which meant marriage to Christ by joining a monastic order and remaining celibate. This “institution of marriage” is not simply an ancient relic.

Elaine Roulet smiled back in time at her own sense of girlish idealism as she recalled the white bridal gown of 46 years ago, when she followed the chapel aisle straight toward the perceived will of God.

"It was so exciting, so romantic, to walk down that aisle as a bride of Christ and come back as a nun," said the 63-year-old woman, a Sister of Saint Joseph, stylishly gray now in checked suit and earrings as she survives as one of the toughest and most adaptive in the modern Roman Catholic church's rapidly dwindling ranks of the sisterhood.

This “trademark” is not only shared by Roman Catholics. Hear the words of this Baptist pastor in his article titled “I Am Married to Christ”:

That very day I fell in love with Jesus. I never knew him in that way before. He had given a promise in his word, and that day he gave assurance that he would never leave me nor forsake me. The very moment I believed, I was married to Christ. He became so precious to me. My love for Jesus Christ became much greater than for my former master. My love exceeded the love of carnal things. I became imbibed with his love to me, because I later learned that, before I loved him, he loved me.

My citing these statements is not to belittle them. They are statements made out of a long tradition. I simply want to point out that they are another—and not incidental—way the term “marriage” has been used in the Christian tradition that does not involve a conjugal relationship between a man and a woman. Is this tradition an infringement on the “marriage” trademark?

Marriage did not become a sacrament in the Roman Catholic Church until the 12th century. Before that time in Europe marriages were basically civil unions by town or village government.

The roles of people in marriage have changed dramatically over history, including the recent history of the United States. In the 1700s and 1800s married women actually lost many of their legal rights when they agreed to get married. After marriage they were not allowed to own property, pay taxes or sign a contract. It was not until the latter half of the 19th century that married women reacquired the rights they had when they were single. As late as 1920 a number of states still had discriminatory laws on their books. Are they to be included under the “marriage” trademark?

Another change came when laws forbidding mixed race marriages were successfully overturned. At one point, 40 states in this country forbade the marriage of a white person to a person of color. Marriages between whites and persons of color were decried as “immoral” and “unnatural”. A Virginia judge upheld that state’s ban on interracial marriages saying, in language with the same tone as that being used in opposition to gay marriages today:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

In 1948, the California Supreme Court led the way in challenging racial discrimination in marriage and became the first state high court to declare unconstitutional a ban on interracial marriage. The court pointed out that races don’t marry each other, people do. Restricting who can marry whom on that characteristic alone was therefore race discrimination.

It took another 19 years for the U.S. Supreme Court to make the same ruling. Until 1967, in many states, a couple of mixed race could not get a marriage license, and if they went to another state and were married, when they returned home they could be arrested. In the Supreme Court’s action in 1967

Chief Justice Earl Warren wrote that the "freedom to marry or not marry a person of another race resides in that individual.'' Note that Warren wrote "person,'' and refers to "persons'' -- not man or woman -- throughout the opinion.

According to the supreme arbiter of the law of this land, “persons,” not “man” or “woman” was judged the “trademark.”

When folks say they want to “preserve the institution of marriage” just which institution of marriage do they want to preserve? We are in a new day facing a new issue. We have not had to face the issue of gay marriage earlier because public pressure and law tended keep homosexual persons “in the closet.” With the increased recognition that as many as ten percent of the human population are by nature gay or lesbian, the issue of gay marriage will not go away. Let’s discuss it in the context of changes that have been taking place to the institution of marriage throughout history, not by distorting the Bible or history. If the people of California are honest with the Bible and with history I think they will recognize that the “marriage” trademark is far more inclusive than many imagined and will reject any ballot measure that attempts to restrict it.

- Milo

UPDATE: If you want to see a heated and informative discussion of the role of the state and church on marriage sparked by this article, check my posting on Daily Kos. I think you'll find it worth your time.