Misleading Coverage on the Federal Marriage Amendment by the New York Times
I sent this letter to the New York Times Reader Advocate and David Kirkpatrick, the reporter on this story.
Your coverage of the Federal Marriage Amendment has taken - without question - the lies promoted by some of the Amendment's promoters - that this amendment doesn't bar states from offering Civil Unions or other protections to gay couples.
The language of the amendment introduced by Rep. Marilyn Musgrave (R-Colo.) suggests otherwise: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred
upon unmarried couples or groups."
The Washington Post quoted two of the amendment's authors - who said the intent of the amendment was to ban both civil unions and gay marriage:
Two of the amendment's principal authors, professors Robert P. George of Princeton and Gerard V. Bradley of Notre Dame Law School, contend that the opening sentence also would forbid some kinds of civil unions. They argue that future courts would have to interpret the amendment to protect not just the word "marriage," but also its essential meaning -- in the same way that, if the Constitution forbade states from creating "navies," they clearly could not establish "flotillas" or "armadas," either.
Reading the amendment language, it seems like "legal instances thereof" could mean that laws - like in Wisconsin allowing gay partners to visit partners in the hospital. It's important not to let the anti-gay activists pushing this amendment off the hook with regard to bearing false witness.
Daniel Okrent, the New York Times "Public Editor" (Reader's Representative) has responded:
dokrent - 6:48 PM ET February 19, 2004 (#10 of 11)
Being trained not as a constitutional lawyer but merely as a journalist, I'm at something of a loss in trying to formulate responses to readers who have challenged some of David Kirkpatrick's reporting on the proposed federal amendment to ban gay marriage.
Kirkpatrick's description of the amendment, spelled out in his Feb. 8 article, "Conservatives Using Issue of Gay Unions as a Rallying Tool," has been criticized for asserting that the amendment would not outlaw state-mandated civil unions.
He has based this interpretation, he has told me, on his own reading of the amendment; on the claims made by its sponsors; and on the established tendency of courts to heed the intent of an amendment's authors.
Judging by the Web site of the Alliance for Marriage, leading proponents of the amendment, this is indeed the case.
An editorial in the pro-amendment Weekly Standard also spells out this position:
Meanwhile, some supporters of homosexual marriage have argued that the amendment's second sentence bans civil unions and prohibits state legislatures from granting privileges to any human relation other than marriage. This is manifestly wrong: Every sponsor of the bill is on record as denying it -- and conservative critics are vociferating against the amendment precisely because it doesn't outlaw civil unions. The second sentence is directed at courts, stripping from them the power to compel homosexual marriage by appeal to other constitutional provisions. Insofar as the amendment affects legislatures, it merely requires them to specify the benefits they wish to give to relationships outside marriage -- which is what civil-union legislation ought to do in the first place.
But some readers have complained that Kirkpatrick and The Times are falling into a trap set by the amendment's sponsors, who are trying, these readers explain, to trick people who favor civil unions into supporting the amendment. Although Kirkpatrick's point about how courts interpret intent sounds valid to me, this is nonetheless a tricky business that calls for further elucidation.
I urge The Times to report on it more fully -- not just on what the amendment really means, but also on the debate over what it really means.
EY: Thanks to Fairness and Accuracy in Reporting for putting out this action alert. It's good that Okrent acknowleges the need to cover the debate over the amendment's meaning. If Kirkpatrick had done the more complete job the Washington Post did on this subject, he would have pointed out the amendment's authors did intend this amendment to ban civil unions. Matt Daniels from the Alliance for Marriage has been selling it differently.