The question of gay marriage, and what to do about it, has been examined from a moral, political, legal, and sociological framework, and no doubt will continue to be so for some time to come. The Church may choose to advocate (and even provide support to) various political initiatives as they see fit. While those initiatives may be worthwhile and worth the effort, ultimately, I think they are doomed. I could be wrong about this, as my powers of political prediction are quite poor. So while I wish the Church luck in whatever political initiatives they choose to undertake, and will try to help where I am able, I strongly feel that there is a much more effective approach available to it, one that plays to the LDS Church’s strengths.

My proposal is to look at traditional marriage not as a question of constitutional law, civil rights, or even sociology and the protection of children. All those areas are framed in such a way to work against the Church’s position. No matter how right they may be, they’re going to come out sounding defensive, if not hateful and divisive.

For these reasons, though it sounds crazy, I am convinced the Church needs to fight the good fight for traditional marriage in the domain of branding and trademark law. And instead of playing defense, they need to start playing offense.

Many people of good will, on this blog, and others, are missing the important semiotic implications of gay marriage. People say, “what is wrong with people choosing to live a certain way?” But that isn’t what the California Supreme Court case was about. As that court acknowledged, California already has a domestic partnership law that is functionally equivalent to marriage.

As a gay person, you are already able to form a lifetime partnership with your same-sex partner with all the benefits of marriage. What you couldn’t do, but will be able to do in 30 days, is call that partnership marriage. So it’s sloppy thinking to say that the court case was about allowing gay people to live together. Prop 22 didn’t ban that. It just said it wasn’t marriage.

Now, to put this in perspective, there’s no doubt that the definition of marriage has been changing for quite a while. These debates about gay marriage are only the latest in a series of changes that started with no-fault divorce laws, birth control and legalized, premarital sex, on-demand abortion, the entrance of women in the workplace, cohabitation, open marriages, and so on. These were not primarily legal questions, they were also cultural, but technology, legislation, and court decisions all combined to radically alter how people define marriage. It’s not clear to me that gay marriage is the most significant of these changes. I actually don’t think it is. It’s just the latest in a series.

In this country, marriage has traditionally been viewed as something that happens between a man and a woman, with the sanction of a religious authority, and for life. Any sexual expression outside this union was strongly and publicly frowned on. People who did not conform to this standard felt obliged to hide that fact as best they could. There were strong social, as well as legal, penalties associated with failing to conform to this standard. Everyone knew what marriage meant.

(Now, in history, things are not so tidy. It is not correct to say that our ideas about marriage are universal and eternal. These are very much Christian ideas that started with the Christian Church 2000 years ago. They are hardly universal, and hardly the norm historically. Even within Christianity, they were honored more in the breach than in practice, but the point is, in Christianity, at least they were honored. People at least felt the need to pay it lip service. In pagan and other traditions, I think the norm is more like polygamy/concubinage and serial monogamy. That’s why “traditional” marriage needs protection. If it were universally believed and supported, always and forever, it would hardly need protecting. It needs protecting precisely because it isn’t universal or all that common.)

Things are now quite different. Only about half of the people surveyed today believe marriage is a religious ordinance. The vast majority of those people oppose gay marriage, as well as divorce, abortion, adultery, and so on. The other half see marriage, I guess, as some form of state-sanctioned contract law and federally-recognized tax status. And this half really has no problem with gay marriage, or at-will divorce, cohabitation, open marriage, or probably even polygamy. That’s completely sensible. If that’s all I thought marriage was, I wouldn’t have a problem with these things either. People ought to be able to order their lives the way they want, and if they want to have the government memorialize those arrangements as a contract and then enforce those contracts, that’s fine by me.

But marriage in the past was seen as something much more than that, and it was for those reasons that marriage was celebrated rhetorically as well as given privileged tax status well above other kinds of mere contract law.

Of course, some gay people also see marriage as a sacrament, as a lifelong commitment to sexual and emotional fidelity. And if this were what all of them believed, gay marriage would not pose the sort of threat it does, which I believe goes far beyond the relatively few number of gay people who are affected by it. The media never probe how, say, Ellen DeGeneres and Portia Rossi, or Elton John and his partner, actually view marriage. Do they agree with these definitions or not? I haven’t seen a poll of gay people, nor do I think one has been conducted. But it seems likely to me that most gay people, just like most heterosexual people nowadays, see marriage as an occasion to celebrate an already-existent union, with lots of pretty dresses, tuxedos, attendants, and presents. But all the sexual, financial, and geographical arrangements have usually been consummated long before the actual marriage.

So I think it’s fair to say, that for most people nowadays (gay or straight), marriage has a form of godliness, but denies the power thereof.

All this so far is an attempt to support my point that as a brand, marriage is tired, fuzzy, and uncontrollable. Why put any effort trying to clarify or defend a term that can be redefined at the whim of any court or legislature?

To truly protect marriage, the Church needs to turn to intellectual property law, specifically trademark law. There, the ability to control how your “brand” is depicted, what it consists of and what is does not, has strong protection in legislation and precedent. And unlike other forms of intellectual property, like patents or copyright, trademarks never expire.

The Church needs to trademark a term like Covenant MarriageTM. The lawyers and marketers will have to come up with the actual term that can be used, but this is the one I’ll use for argument’s sake. The Church can, if it chooses, license the term to other Churches which share its view of marriage. (This is just how the “Real” dairy symbol on your frozen pizza, or the ADA sticker on your toothpaste work.) If that Church changes how it solemnizes marriages in a way the LDS Church disapproves of, it can just revoke the license, and that Church will no longer be able to call their marriages Covenant MarriageTM. If gay people, atheists, or whoever objects to this idea of marriage, they can come up with their own marriage brand, like Bright MarriageTM, or Committed MarriageTM, or Whatever MarriageTM.

(Note that this is basically what the LDS Church did with polygamy. When it was introduced to the world, they didn’t try to claim, as gays do now, that their form of marriage was the same as other forms of marriage. They called it by a different name (“plural marriage”) and tried to show how it was better than regular marriage.)

Courts can decide what “marriage” is, but it is up to the rights holder to define what Covenant MarriageTM is. The Courts will have to enforce what ever definition you come up with.

Even better, from a political standpoint, the Church is not on defense any longer. If the Church believes that its idea of marriage is truly better, they can stay in the business they are in, which is preaching, and out of a business they’re not good at, and not designed for, politics. They can explain and propound how a Covenant MarriageTM is better and preferable to regular marriage. Instead of saying gay marriage, divorce, adultery, etc. are bad, they can show how Covenant MarriageTM are good. Can’t you just see the commercials, with the happy, smiling families, and then the tagline: “Make your marriage a Covenant MarriageTM today. Isn’t it about time?”