Virtual Marriage Equality: Nintendo’s Tomodachi Life is Behind the Times

“A celebrity might fall in love with your math teacher,” but, in Nintendo’s new Sims-like game, your characters cannot be gay.  In June 2014, Nintendo released Tomodachi Life, a 3DS social simulation game through which players import their avatars, or “Miis,” into what one game critic called a “digital dollhouse.” There, players can customize Mii characters for any person they wish – friends, family, or celebrities – and then watch as they all interact.  Despite what appears to be a game with limitless social opportunities, the Miis are only permitted to marry members of the opposite sex.

Tomodachi Life was first released in Japan in April 2013 where it received positive reviews and developed a strong following.  Nintendo set June 2014 as the release date for the U.S. market.  Just weeks before, U.S. fans started the Miiquality campaign to put pressure on Nintendo to create a gay marriage option in the game.  Tye Marini, the founder of the campaign, wanted to “be able to marry [his] real-life fiancé’s Mii,” but the game would not allow it. Marini went on to explain that his options were to “marry some female Mii, to change the gender of either [his] Mii or [his] fiancé’s Mii (and other male Miis) or to completely avoid marriage altogether and miss out on the exclusive content that comes with it.”  The timing of the campaign coincided with the 10-year anniversary of marriage equality in the U.S.

In response, Nintendo released the following statement: “We hope that all of our fans will see that ‘Tomodachi Life’ was intended to be a whimsical and quirky game, and that we were absolutely not trying to provide social commentary.”  The company later revised its comment, explaining that it was too late to revise the game and pledging to “strive to design a gameplay experience from the ground up that is more inclusive, and better represents all players.”  Despite the initial negative publicity, Tomodachi Life went on to receive positive reviews.

Nintendo’s failure to make the requested changes has left members of the LGBT community feeling excluded. And, as GLAAD national spokesperson Wilson Cruz told GamesBeat, Nintendo is signaling that it is “way behind the times.”  Cruz explained that it has “been over a decade since The Sims — the original ‘whimsical and quirky’ life simulator — allowed its users to marry any character they wanted, and many other mainstream and massively popular video games have followed their lead since.”  GLAAD urged Nintendo to do the same.

Civil rights issues in video games are not often litigated because the Supreme Court has held that video games qualify as protected expression under the First Amendment.  In 2011 in Brown v. Entertainment Merchants Association, the Court issued a 7-2 decision striking down a California law that prohibited the sale or rental of violent video games to minors.  The Court reasoned that “[l]ike the protected books, plays, and movies that preceded them,” video games communicate ideas, and that “suffices to confer First Amendment protection.”  The video game and entertainment industries applauded the decision which, in the words of the Entertainment Merchants Association’s CEO, “declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.”

Ten years prior, Judge Posner of the Seventh Circuit made a similar comparison in American Amusement Machine Ass’n v. Kendrick: “Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature . . . is interactive; the better it is, the more interactive.”  Judge Posner added, “Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”  In that case, the Seventh Circuit held that there was insufficient evidence that exposure to violent video games actually caused harmful behavior and that young people had First Amendment rights to play these games.  These passages are frequently cited to argue that video games are no more threatening than other media forms.

Against this backdrop, civil rights groups would be hard-pressed to litigate issues of in-game marriage equality in U.S. courts.  It seems that the best strategy might be for activist organizations like GLAAD to provide support to campaigns such as Miiquality, which aim to mobilize what the game companies need most – players.