Same-sex marriage as trademark tarnishment

Yale law prof Kenji Yoshino compares the argument against same-sex marriage to the intellectual property law doctrine of tarnishment:

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.

Joe Carter responds here.