Same-sex relationships and same-sex marriage (SSM)
As lawsuits reach an advanced stage, errors and
lack of clarity occur among some media reports
Prior to about 2011, the main political concern of social and religious conservatives was limiting or eliminating access to abortion. Since then, preventing the recognition of same-sex relationships via marriage, civil unions or domestic partnerships seems to have displaced abortion as their primary concern.
On 2012-NOV-30, many lesbians, gays and bisexuals (LGB) as well as civil libertarians, therapists, mainline and liberal religious groups and individuals, etc. were anxiously awaiting developments in the courts. In particular, many loving, committed same-sex couples in California are anxious to learn whether they will have access to marriage and thus attain the social acceptance, status, and security of marriage for themselves and their children. Many more same-sex couples across the nation are anxious to learn if their spouses will receive the same health care, pensions, social security protections, inheritance rights, etc. that all opposite-sex married couples have. It all depends on the outcome of rulings by the nine Justices of the U.S. Supreme court on two matters:
- The Defense of Marriage Act (DOMA): This law was passed in 1996 during the Clinton Administration. Section 3 of the law requires that the federal government not recognize legal marriages solemnized in the District of Columbia or in one of the growing number of states where same-sex marriages (SSM) are currently legalized. The federal government must ignore these marriages and withhold about 1,140 benefits, protections, etc. from same-sex married couples that are automatically granted to every opposite-sex couple.
Over the past five years there have been numerous constitutional challenges to DOMA in federal District Courts. In each case either section 3 of DOMA, or the entire DOMA law was found to be unconstitutional. The 1st and 2nd U.S. Circuit Courts of Appeal have confirmed the ruling of their District Courts. Three cases have been appealed to the Supreme Court (SCOTUS):
- Proposition 8 in California: During 2008-MAY, the Supreme Court of California authorized SSMs in the state. On election day in November of that year, Proposition 8 was narrowly passed by the voters to ban SSMs once more. A lawsuit was filed in federal District Court. Judge Walker determined that Prop. 8 was unconstitutional. This decision was upheld by the 9th Circuit Court of Appeals. The case has been appealed to SCOTUS.
SCOTUS can choose to:
- Refuse to hear the Massachusetts, New York. and California DOMA cases from the 1st. and 2nd. U.S. Circuit Court of Appeals, and the "Prop 8" case from California.
- Grant certiorari -- decide to hear and subsequently rule -- on one, two, three or all four cases.
The SCOTUS meeting was held on 2012-NOV-30, but no decision was made on these cases. However, the court still has openings available in their schedule that would allow them to hear the cases during the next session.
Unfortunately, the quality of media reports on topics related to SSM is not high. Many biases and inaccuracy appear. This is most commonly seen in reports by religious groups. But secular media sources often contain errors as well.
The author of this essay was troubled in particular to an article in the Associated Press, a news source known for its high quality reporting. The article was published by KSWT News and probably by many other news outlets. He wrote the following email to [email protected] on 2012-NOV-30:
"Gay marriage before Supreme Court? Cases weighed" written by Mark Sherman and published by KSWT on 2012-NOV-29.
I am very concerned about two serious errors in this article and one use of terminology:
1) In the seventh paragraph, the author refers to the constitutional amendment passed on 2012-MAY in North Carolina. He described it as a ban on SSM (same-sex marriage). He wrote:
'... 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May.'
The state and national groups promoting this amendment in NC successfully sold the lie that it was a simple ban on SSM. But in reality it was a stealth amendment that bans SSM, civil unions, domestic partnerships and any form of recognition of same-sex relationships. It requires the state government to treat loving, committed same-sex couples as "legal strangers" -- as simple roommate. This leaves the couple and their children without many needed protections.
In fact, surveys at the time showed that if the voters in NC had been aware of the true scope of the amendment, they would have voted against it. However they weren't aware of its scope and so they passed it.
To describe it as a simple ban on SSM does not reveal the full scope of the amendment.
2) Two paragraphs later in his article, Mark discusses the pending decision at the U.S. Supreme Court over same-sex marriage in California -- specifically about the Prop. 8 referendum that banned SSM. He wrote:
'A decision in favor of gay marriage would set a national rule and overturn every state constitutional provision and law banning same-sex marriages.'
In reality, this is not what the case is about. If the Justices accept the appeal, they will be ruling on a very narrow question: if SSM becomes available in a state, is a subsequent referendum to make SSM unavailable valid if it is passed by the public? If they answer in the affirmative, it would have no effect on state laws, referendums, or amendments as far as I have been able to tell. If they answer in the negative, their ruling would only affect referendums in California (in 2008) and Maine (in 2009). Also, the latter doesn't really matter because on election day in 2012, the voters in Maine repealed their earlier ban on SSM via a second referendum.
In addition to the above errors, I am concerned about the term "gay marriage" that is found in this article, in other AP articles, and throughout much of the rest of the media. It is simply inaccurate. I believe that the term "same-sex marriage" should always be used instead.
Same-sex marriages can involve:
- two lesbians
- two gay males
- one lesbian and one bisexual woman
- one gay male and one bisexual male
- two bisexual males, or
- two bisexual females.
The term "gay marriage" refers only to the first two forms; it excludes the other four.
The term "same-sex marriage" refers any of the six. It is an inclusive term. I encourage you to adopt it as a matter of policy.
We will report here any acknowledgement or responses that we receive from the Associated Press.
Errors and lack of clarity observed in the media:
2012-NOV-30: The British Broadcasting Corporation, generally considered among the most reliable source of information, discussed the Defense of Marriage Act that has been appealed to the U.S. Supreme Court. Their web site states:
"The US high court met to discuss cases to be heard, including a challenge to the federal Defense of Marriage Act (DOMA) that outlaws gay marriage." 2
The federal DOMA doma does not outlaw "gay marriage."
SSMs are either allowed and registered, or are banned by the individual state. Section 3 of the federal DOMA law simply prevented legal same-sex marriages from receiving any of the approximately 1,140 benefits and protections of federal programs.
They also state:
"The 1996 law states that marriage can only be between a man and a woman."
The definition of marriage remains with the individual states. As of this date, the District of Columbia and 9 states allow loving, committed same-sex couples to marry. By 2014-MAY, SSMs were legal in 17 states. Also five federal District Courts had issued rulings that legalized same-sex marriage in different states. However all were stayed pending appeals to higher courts.
We will add descriptions of other errors as we spot them.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Mark Sherman, "Gay marriage before Supreme Court? Cases weighed," Associated Press, 2012-NOV-29, at: http://www.kswt.com/
- "US Supreme Court defers decision on gay union cases," BBC News, 2012-NOV-30, at: http://www.bbc.co.uk/
Copyright © 2012 to 2014 by Ontario
Consultants on Religious Tolerance
Original posting on: 2012-NOV-30
Latest update on: 2014-MAY-01
Author: B.A. Robinson