Even before George W. Bush endorsed a constitutional amendment banning same-sex marriages, the amendment's potential impact was clouded by careless reporting.
Some advocates claimed that the proposed Federal Marriage Amendment would permit states to allow civil unions for gays and lesbians -- a disputed interpretation that a number of media outlets failed to question. On February 11, ABC World News Tonight correspondent Terry Moran explained that the amendment "would define marriage as a union between a man and a woman, but allow states to establish civil unions for gay couples." Moran continued by saying that "some conservatives are unhappy that the proposed amendment would allow civil unions for gay couples."
But the language of the amendment as originally introduced by Rep. Marilyn Musgrave (R.-Colo.) did not necessarily match Moran's description: 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.
Some legal scholars pointed out that the "nor state or federal law" clause could be interpreted as blocking civil unions legislation for gay couples (TAPPED , 2/11/04). But by taking their cues about the amendment's legal ramifications from its proponents, some media outlets failed to clarify the issue. The New York Times (2/8/04), for example, explained that "the proposed amendment would allow state legislatures to recognize gay civil unions, a provision that had alienated many conservatives."
Other papers managed to convey the reality of the legal dispute. The Washington Post (2/14/04) devoted a whole article to the topic, reporting that "the amendment's possible interpretations are a matter of furious debate among constitutional scholars and political activists, with some contending that it would allow Vermont-style civil unions and others saying it would not." The Post noted that two of the amendment's authors "contend that the opening sentence also would forbid some kinds of civil unions," though others weren't so sure.
After FAIR activists contacted ABC and the New York Times , though, the reporting shifted. In response to emails from FAIR activists, Times public editor Daniel Okrent wrote on his web journal (2/19/04): "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." On February 25, the Times did just that, offering a short piece on the legal debate over the amendment: "Some conservative scholars who oppose gay unions and some gay scholars who oppose the amendment are arguing that it might effectively block any marital benefits for same-sex couples, no matter what name is used."
The piece did tilt in favor of the amendment's proponents, offering two responses to a single comment from a critic of the amendment. The Times story was also unfortunately framed to suggest that criticism of the original amendment's language was relegated to just two small groups of legal scholars-- "a handful of conservatives" who oppose gay unions, and "a few gay legal advocates" who oppose the amendment.
In its February 24 broadcast, ABC World News Tonight also changed the way it reported the amendment. Correspondent Terry Moran ended his report: "The president says he supports states deciding for themselves whether they want to establish so-called civil unions for same-sex couples, though gay rights advocates say the constitutional amendment he is backing might ban even those arrangements." This description acknowledged the controversy over the amendment's interpretation, which had been omitted from his earlier summary.
The attention given to the proposed amendment's murky language, combined with strong congressional reluctance to ban civil unions, led Republicans on March 22 to submit a revision that removed the clause "nor state or federal law." But some legal analysts and gay rights advocates argue that the phrase "legal incidents thereof" still threatens the states' ability to authorize civil unions-- as noted by the New York Times (3/23/04) and several other newspapers. As Extra! went to press, no television networks had reported on the wording change or its disputed meaning. When the rights of many may turn on a handful of words, it's vital that media clarify the potential ramifications of the Federal Marriage Amendment.