The cultural property claim within the same-sex marriage controversy.

Partisans in the contemporary controversy over same-sex marriage and marriage equality often use the rhetoric of "access" and "exclusion" to frame their positions. These terms are also used to stake out positions on how to resolve conflicts over congestible natural resources. This Article takes the terms at face value and asks whether and how the marriage equality/same-sex marriage controversy might usefully be described in terms of a controversy over a contested and potentially congestible shared resource. "Access" and "exclusion" are property language, after all.

This Article will argue that the traditionalist (1) claim that same-sex couples should be excluded from marriage is the same kind of claim as is often made by Native American, indigenous, and other culturally-subordinated groups to certain cultural resources--a right to exclude others in order to protect sacred objects, places, and rituals, so as to preserve and perpetuate group identity over time. This description may help progressives gain a new, and perhaps better, understanding of the sense often expressed by traditionalists of the harm they believe would accrue by allowing same-sex couples access to the institution of marriage. (2) The Article explores the details of the traditionalist position understood as a cultural property claim and then sketches out a number of progressive responses to the traditionalists' cultural property claim.

This Article focuses on the cultural and symbolic significance of legally recognizing marriages of same-sex couples--the name, legal status, and kinship status that marriage confers. (3) It deliberately distinguishes and brackets issues of the tangible benefits and responsibilities conferred by marriage. (4) The Vermont Supreme Court in Baker v. State (5) and the New Jersey Supreme Court in Lewis v. Harris (6) both allowed state legislatures to make this distinction in choosing how to remedy state constitutional violations discerned by those courts. In both states, the legislatures created civil unions rather than revising the legal scope of marriage to allow same-sex couples to marry. (7) The distinction between marriage and an alternate legal status was also raised in Massachusetts (8) and California, (9) but with a different result. Recently enacted broad domestic partnership statutes in Oregon (10) and Washington State, (11) as well as civil union statutes in Connecticut (12) and New Hampshire, (13) also create shadow legal institutions for same-sex couples that are nearly identical in structure to marriage, but different in name. Arguments are now being marshaled in states with supposedly GLB (14)-hospitable civil union laws--Vermont and New Jersey, for example--that civil unions do not effectively confer benefits equivalent to those received through marriage after all. (15) Thus the issue is squarely raised in multiple jurisdictions: what is at stake in the name and legal status of "marriage," above and beyond the benefits and responsibilities that civil marriage conveys. (16) The question is no longer merely theoretical. (17)

Characterizing the same-sex marriage controversy as a contest over an intangible sacred cultural resource and a problem (from the traditionalist perspective) of signal dilution or pollution can facilitate a better understanding of our contemporary Kulturkampf over gender and sexuality, of which the marriage controversy is a part. (18) Progressives tend to believe that allowing same-sex couples to marry (19) will not negatively affect the institution of marriage and wider society, or will change and improve them. Progressives may well be tempted to dismiss the supposed congestion (20) of the tradition of marriage as a will-o'-the wisp, a merely moral objection that is illegitimate in a liberal, pluralist state. (21) But these "mental externalities" (22) are an important underlying motivation for opponents of same-sex marriage. At the very least, they merit careful description. Understanding marriage as a semiotically congestible intangible cultural resource may encourage us to (1) appreciate the coherence of traditionalists' sense of injury at the cultural and symbolic level; (2) devise rhetorical and political strategies to address and defuse traditionalists' concerns; and (3) explore whether there are possible and acceptable rebuttals and compromises that might address the same-sex marriage controversy short of a costly and divisive winner-take-all struggle. Some scholars of cultural property ultimately advocate this compromise approach to cultural property claims, (23) and it is similar to the approach advocated by many concerned with the broader incorporation of multiculturalism into political theory. (24) Debates concerning the marriage equality controversy should at least consider these types of strategies.

The Article begins, in Part I, with a brief exposition of one longstanding customary defense of mixed-sex marriage: (25) invoking an apparently natural and unrevisable definition of marriage as between one man and one woman. (26) This approach, however, leads to stalemate.

In Part II, the Article embarks on its principal line of inquiry by asking what kind of congestion could be at stake in the widespread use of an intangible ritual, marriage, and in the status and identity that marriage conveys. (27) Traditionalists assert a need (on all society's behalf) to exclude a whole group from the ritual, status, and kinship identity of marriage, whose use is seen by them to misappropriate (28) and degrade the ritual, status, and identity of marriage. In short, the traditionalists' position is a claim to group control of a cultural resource, and as such, they assert a basic right to exclude.

A few thoughtful authorities have explored analogies to intellectual property claims as a way of understanding the traditionalist position opposing same-sex marriage. (29) There is a far more apt analogy to the traditionalist claim, however: some indigenous peoples and other culturally-distinct groups sometimes make claims about intangible sacred resources, including a right to exclude others. They seek to preserve their traditional individual and collective identities by restricting the use of their rituals, stories, and beliefs. (30) This Article argues that, from the traditionalist point of view, marriage is just such a cultural resource. It confers a status, an identity, and a kinship network, above and beyond its tangible benefits. (31) Access to marriage by same-sex couples is understood by traditionalists to threaten the desecration of this ritual, status, and identity. If one is reluctant to put an explicitly religious spin on it, one could still say that same-sex marriage appears to traditionalists to be a misappropriation that threatens to degrade, destabilize, or dilute a central cultural institution. (32) This observation helps to explain the recurring rhetoric of pollution and desecration deployed by traditionalists in describing the threat they perceive from the potential widespread societal acceptance, not only of homosexuality in general, but of same-sex marriage in particular.