Jun
07
2006

Amendment Proposal Needs Serious Attention

Politics aside, how would Constitution be affected by gay marriage ban?

In a move that most political observers describe as a tactic to increase voter turnout among his party's conservative base, George W. Bush announced on June 5 that he supported a constitutional amendment banning gay marriage. While much of the media discussion of the issue focuses on the GOP's political maneuvering, few reports examined what the actual effects of the proposed amendment would be.

Some reporters downplayed the seriousness of changing the U.S. Constitution by suggesting that the Republicans' proposed amendment was a routine political ploy of the sort both parties engage in. As National Public Radio political editor Ken Rudin put it on CNN (6/5/06): "It's politics, not politics in a bad way, but it's politics. Democrats have done the same thing. They'll insist on a vote on raising the minimum wage, not that they'll have it or not, but to put Republicans in the uncomfortable position of having to vote for and against it. A tactic that's been used since the dawn of creation."

One might point out that there's a significant legal and qualitative distinction between a constitutional amendment limiting the civil rights of Americans and a legislative attempt to give poor workers a raise.

Focusing on politics, few reports gave much attention to what the amendment would actually mean in practice. A June 6 Washington Post news article allowed Bush and his supporters to frame the legal ramifications. "Bush also took pains to note the limitations of the proposed amendment," the paper reported, suggesting that the language of the amendment "leaves the states free to define other legal arrangements for gay couples—such as civil unions, proponents of the amendment said."

Similarly, the New York Times (6/4/06) told readers without qualification: "Mr. Bush said in his address that the amendment would leave it up to state governments, and not the courts, whether to approve legal arrangements for same-sex couples such as civil unions."

The Los Angeles Times put forth a similar interpretation of the amendment, albeit from a different angle (6/5/06): "At least two prominent social conservative groups—Concerned Women for America and the Traditional Values Coalition—believe the language contains a loophole that would allow gays to seek civil unions."

But it is far from clear that this interpretation is correct. The ACLU, for example, stated in a press release (6/5/06): "The amendment’s broad language would attack marriages, civil unions, domestic partnerships and other legal protections for gay and lesbian American families." News accounts should have added such voices to their reporting, instead of relying simply on Bush's spin.

Interestingly, the Post did point out the same controversy over the 2002 amendment, which has been only slightly modified this time around. As FAIR noted at the time (2/16/04),

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 aren't so sure.

Finally, the prevailing assumption in the coverage of Bush's political maneuvering is the belief that this strategy worked in the 2004 election, bringing out additional conservative voters in states where gay marriage bans were on the ballot. As the New York Times reported (6/6/06), "Republican officials are hoping that the marriage debate will help them as it did in 2004, when 13 state ballot initiatives banning same-sex marriage or civil unions were credited with drawing many conservative voters to the polls and propelling Mr. Bush and congressional Republicans to victory."

But it is not clear that the ballot measures actually helped boost turnout. "Bush pollster Matthew Dowd doubts it was decisive last time around," Newsweek recently reported (6/12/06) in a story on the anti-gay campaign. "'It didn't drive turnout in 2004,' he says. 'That is urban legend.' Turnout was the same in states with bans on the ballot and those without, Dowd says."

Of course, it's important for reporters to examine the politics behind Bush's endorsement of the amendment (particularly after a vote to close debate on the amendment failed in the Senate on June 7). It's also helpful to note that the chances of actually amending the Constitution are rather slim. But reporters should treat seriously any effort by the governing party to change the nation's basic law—and challenge misleading rhetoric and assumptions.