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The New York Times and the federal marriage amendment:

Today's New York Times includes a story on the proposed federal amendment banning same-sex marriage. The story contains the following paragraph, describing the effect of the proposed amendment:

His [President Bush's] speech came as the Senate began to debate the proposed amendment, which would define marriage as being between a man and a woman and would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage.

This is a common description of the effect of the amendment, and it has appeared in one form or another throughout much of the news media over the past few days. Nevertheless, while it's true that the amendment would at a minimum "define marriage as being between a man and a woman" and "would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage," this description implies that that's all the amendment would do. Thus, it essentially accepts the interpretation offered by some supporters of the amendment (like Senate sponsor Wayne Allard) in their effort to make it seem as narrow and reasonable as possible. It unquestioningly accepts the controversial view that this amendment is basically limited to dealing with judicial activism.

However, there's an active debate over what additional effects the amendment might have. Those of us who oppose the amendment are quite concerned that it would do far more than define marriage and limit the power of judges. As I've argued, for example, its effect may also be to ban the legislative enactment of civil unions and make other legislatively created statuses for same-sex couples unenforceable. For details of the argument about why the amendment might be interpreted in this way, see the last section of my recent Cato piece on the amendment.

But the point here is not to establish whether I'm right or wrong about the possible effects of this amendment. The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories. Not every reference to the amendment needs to note these possible additional effects (e.g., it's acceptable shorthand generally to refer to the amendment as "banning same-sex marriage"), but the possible additional effects should at least be mentioned in substantive stories about the amendment, like the one quoted above. The New York Times and other media who aspire to be fair, balanced, and accurate in reporting the news owe us better.

Steven:

The point is that the media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories.


Why does the NY Times have a responsibility to write the article as you think it should be written? The last I looked, the NY Times does not have a charter that requires it to be as fair and objective as everyone would like. The responsibility of the NY Times is to present stories about events in the world in a manner that attracts the demographic that its advertisers are seeking. Those who want it (or any other media outlet to do something different) should start their own paper, or better yet, a blog.
6.6.2006 9:43pm
keith_hilzendeger:
How easy do you think it is for the media to get across the extent of the dispute about the impact of the FMA (or analogous state initiatives like, for example, this one). As evolution supporters and global-warming advocates have discovered to their dismay, the media have a hard enough time conveying certainty in the face of those who would exaggerate doubt. Wouldn't any attempt by the media to present both sides of the "FMA is bad, no it's really bad" debate founder in the face of the clear message in support of the FMA (however misguided THAT message is)?
6.6.2006 9:45pm
David Matthews (mail):
"The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents."

If I recall correctly, opponents of the Equal Rights Amendment had a similar complaint about the media's refusal to examine the potential unintended consequences of that proposed amendment. Alarmists said crazy things like, "this will lead to forced recognition of gay marriage...."
6.6.2006 10:19pm
Steve Lubet (mail):
So here you have the dread Mainstream Media exhibiting a conservative bias -- failing to explain the full anti-democratic impact of the FMA and thus making it more palatable.

I'm so confused. Isn't the MSM supposed to exhibit a perpetual liberal bias?

Oh wait! Now I get it. The mainstream press isn't intentionally politically biased at all. It's institutionally biased in favor of simplicity and against complexity. So they just give us the shorthand -- which sometimes favors the liberal view and sometimes favors the conservatives.

Fox News, on the other hand . . .
6.6.2006 10:20pm
Medis:
They might take more care if there was the slightest possibility of it passing the Senate.
6.6.2006 10:28pm
Dave Hardy (mail) (www):
Oh wait! Now I get it. The mainstream press isn't intentionally politically biased at all. It's institutionally biased in favor of simplicity and against complexity. So they just give us the shorthand -- which sometimes favors the liberal view and sometimes favors the conservatives.

Or both of the above. I suspect the second bias is the predominant one, and the one operating here. Prepare, with the minimum effort and time, a story about something you barely understand, which story will be appreciated by those who understand not at all.

Gimme thirty seconds of someone saying it's great, thirty seconds of someone saying it's horrible, and let me write up a bit of a script to intro and separate them. Story done, and on to the next one.
6.6.2006 10:47pm
Michael Hall:
Steve Lubet, see Dave Hardy.
6.6.2006 11:36pm
Splunge (mail):
The point is that the news media has a responsibility to yadda yadda...

Ugh, a fresh sprig of intellectual Stalinism, that kudzu of Academe. A "responsibility" they have, eh? And who defines the precise nature of that responsibility? A committee of law professors? God? The Constitution as interpreted by the nearest Federal time-server?

How about instead: we live in a free country, and they can print any damn thing they like, and spin it any way their black little hearts desire, and then we can freely choose to buy, or not buy, their paper.
6.7.2006 2:30am
Dilan Esper (mail) (www):
Let's be clear here. It's not simply that there is a dispute over the wording of the Amendment; the Amendment was deliberately worded in such a way that those who want to later argue that it prohibits all civil unions can do so. The coalition that supports this thing includes bigots who aren't only concerned about the definition of marriage but who also want to preserve the government's power to discriminate against gays and lesbians.

The language that would prevent the Amendment from intruding on civil unions is easy to draft; you just say "provided, however, that nothing herein shall prohibit any state from recognizing any status between persons of the same sex other than marriage".

So what you have is an Amendment that was DELIBERATELY drafted so as to leave open the possibility that it might be interpreted to ban non-marital civil unions, in order to keep the coalition that supports it together. The idea that THIS fact is not reported certainly shows media sloth, if not bias.
6.7.2006 4:27am
Public_Defender (mail):
Professor Carpenter,
Have you tried writing a letter to the editor, requesting a correction, or contacting the ombudsman? You might get them to print a clarification.
6.7.2006 8:07am
BobN (mail):

How about instead: we live in a free country, and they can print any damn thing they like, and spin it any way their black little hearts desire, and then we can freely choose to buy, or not buy, their paper.


No professional standards?

Is that how you choose a doctor? An accountant? A lawyer?
6.7.2006 5:03pm