This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim – the sort of claim that is often made by Native American tribes and other indigenous or subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, the article disagrees with the traditionalist position, and suggests several arguments against allowing traditionalists to claim a property-like right to exclude same sex couples from marriage. Nevertheless, the stakes in the part of the marriage equality controversy that centers around name and status are not adequately understood, and this article offers an analytical advance by bringing the idea of a cultural property claim to bear.
The protection of shared cultural symbols, rituals and traditions can be approached doctrinally and understood culturally in several ways in addition to a cultural property claim, including trademark dilution (especially trademark tarnishment), intellectual property rights that protect against unauthorized performance, laws against blasphemy and desecration, and environmental prohibitions of pollution and contagion. The article examines each of these, shedding light on the unexplored mechanics of the signal congestion that often lies at the heart of the traditionalist concern. The article focuses not only on the name and status of marriage, but also on the daily performances of gender roles that marriage authorizes and facilitates, and that same sex marriage apparently threatens to dilute or disrupt. The article thus applies both property concepts and gender performance theory to the same sex marriage controversy. The gender performance analysis also leads to a place-based argument in favor of disestablishing marriage, as a way of facilitating a multicultural approach to a deep-seated controversy.