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NLGJA Resources > Journalists Toolbox > Getting the Marriage Story Right
Getting the Marriage Story Right
The History, Current Law & the Future
Last Updated: July 2008
Article Contents
Introduction
The battle over marriage rights for lesbian and gay Americans has been a major news story for much of this decade. In June 2008, California began to allow gay couples to get married, becoming only the second state to do so after Massachusetts. Nine other states offer civil unions or other legal arrangements similar to marriage, such as domestic partnerships. The state of New York doesn’t offer marriages or civil unions for same-sex couples, but a state court ruled in February 2008 that legal marriages performed elsewhere must be recognized in the state. And in May 2008, N.Y. Gov. David Paterson ordered state agencies to recognize same-sex marriages performed in states and countries where they are legal.
While gay rights advocates cheered these developments, California's issuing of marriage licenses for lesbian and gay couples could be short-lived; a November 2008 ballot initiative calls for a ban on the marriages. Arizona and Florida voters will also consider amendments to their state constitutions banning marriage for same-sex couples, which means the issue will likely be debated in the 2008 elections.
Democratic presidential candidate Barack Obama announced his opposition to the California ballot measure on July 1, while GOP nominee John McCain supports the initiative. However, the 2008 presidential candidates' positions on marriage rights are quite similar: Neither McCain nor Obama support a federal amendment restricting marriage rights, and both believe the term "marriage" should be reserved for the union of a man and woman. Obama supports "civil unions" for same-sex couples, while McCain’s position is less clear. In November of 2006, ABC's George Stephanopoulos asked McCain whether he was against civil unions, and later asked whether he was in favor of civil unions. McCain answered "no" to both questions.
Marriage for same-sex couples was a big issue on Election Day 2004, when 11 states passed laws or state constitutional bans by wide margins. Currently, 27 states have amended their constitutions to forbid same-sex couples from being married, and 41 states have statutes banning it. In his 2005 State of the Union address, President Bush reiterated his support for an amendment to the U.S. Constitution "to protect the institution of marriage," but there appears to be little appetite for revisiting a federal amendment at this time. Meanwhile, lesbian and gay couples are suing to overturn bans in a number of states.
Reporters covering the debate should remember that marriage laws are determined by state governments, yet federal laws and regulations (such as the tax code) relating to marriage are an essential part of the story (see Defense of Marriage Act). Traditionally, in accordance with the fourth article of the U.S. Constitution, each state has recognized marriage licenses issued in other states.
Journalists reporting on this complex subject should also note the differences between civil unions and marriage. Vermont's legislature created civil unions in 2000 in response to a state Supreme Court decision requiring them to extend all the benefits, rights and privileges of marriage to same-sex couples. This contract carries all of the benefits of marriage within the state’s power to bestow except the name "marriage." Connecticut, New Hampshire and New Jersey later enacted their own civil union laws.
Some History
Same-sex couples have sought the right to marry as far back as 1971, according to the Human Rights Campaign, an LGBT advocacy organization in Washington, D.C. None of those legal cases was successful. Boulder County, Colo., issued licenses to about a half-dozen same-sex couples in 1975, according to the Associated Press. The state attorney general later said they were a violation of state law and deemed them void.
In 1993, Hawaii's Supreme Court ruled that a ban on marriage licenses for same-sex couples appeared unconstitutional under the state's equal protection clause. But before any licenses were granted to same-sex couples, Hawaii's voters amended the state constitution in 1998 to restrict marriage to heterosexual couples. That same year, Alaska approved a similar measure.
In Massachusetts, the state's highest court ruled in November 2003 that same-sex couples could be legally married starting May 17, 2004. On the first day of eligibility, more than 1,000 same-sex couples sought applications for licenses, according to The Associated Press. A survey by The Boston Globe of 752 couples in 11 cities found that two-thirds of the applicants were lesbian couples, and that 40% of those couples had children in their households. Half of the couples reported being together for at least a decade.
In San Francisco, the mayor issued hundreds of marriage licenses to same-sex couples in 2004, but California's high court later declared the licenses void.
High courts in Maryland, New York and Washington state ruled against 35 gay couples who had filed suits for the right to be married under their respective state constitutions.
Globally, six countries allow marriage for couples of the same sex, while a number of others offer civil unions or similar arrangements.
The Defense of Marriage Act
No matter what the states do, the federal government's Defense of Marriage Act of 1996, which was signed into law by President Bill Clinton, defines marriage as an institution that can only be entered into by a man and a woman. As a February 2004 Associated Press article noted, "Even if you're legally joined in
Vermont
, you and your partner remain strangers in the eyes of the federal government. This means that you still won't receive any federal benefits for married people, like unlimited tax-free spousal gifts and Social Security transfers."
A Constitutional Amendment
On
Feb. 24, 2004
,
President Bush called for an amendment to the U.S. Constitution to prevent marriage for same-sex couples. Bush said he has been troubled by the actions of judges and mayors to allow marriage for same-sex couples.
According to a New York Times report, "Mr. Bush said the amendment he envisioned 'should fully protect marriage while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage,'" which would presumably include civil unions. But the Federal Marriage Amendment, introduced in 2003 by Rep. Marilyn Musgrave, R-Colo., appears to ban not only marriage for same-sex couples, but also civil unions.
President Bush repeated his support for a constitutional amendment during his State of the Union address in early 2005. Political observers say it is unclear if Congress will bring up the issue anytime soon.
Journalists covering this debate would be well served to interview legal and constitutional scholars and not rely solely on claims by politicians or advocacy groups on either side of the issue.
To see the text of the Federal Marriage Amendment, visit the Library of Congress.
The Benefits of Marriage
LGBT advocates say denying same-sex couples the rights and responsibilities accorded to married couples is unfair. A 1997 study by the General Accounting Office pointed out at least 1,049 federal laws in which marital status is a factor.
According to the Human Rights Campaign, same-sex couples "in lifelong relationships pay higher taxes and are denied basic protections under the law" including, in some cases, hospital visitation rights. "They receive no Social Security survivor benefits upon the death of a partner, despite paying payroll taxes. They must pay federal income taxes on their employer's contributions toward their domestic partner's health insurance, while married employees do not have to pay such taxes for their spouses. They must pay all estate taxes when a partner dies. They often pay significant tax penalties when they inherit a 401(k) from their partner. They are denied family leave under the Family and Medical Leave Act."
Journalists writing about marriage may want to personalize the issue by interviewing same-sex couples, family law experts, financial planners and tax professionals about how the denial of these benefits directly affects families. The marriage debate is not just a political story; it is also a story about society, personal finance and business.
Civil vs. Religious Ceremonies
Much of this discussion has intentionally centered on the government's definition of marriage. Journalists covering this debate should remember that the government issues civil marriage licenses. Religious organizations retain the right to perform marriage ceremonies as they choose; a government's allowing same-sex couples to marry will not force any churches to perform such ceremonies.
Using Accurate Language in Reports
Journalists (along with politicians and lay people) have struggled with language and terminology on this issue.
NLGJA's Stylebook Supplement on LGBT Terminology recommends the following: "Advocates for the right to marry seek the legal rights and obligations of marriage, not a variation of it. Often, the most neutral approach is to avoid any adjective modifying the word 'marriage.' For the times in which a distinction is necessary, 'marriage for same-sex couples' is preferable in stories. When there is a need for shorthand description (such as in headline writing), 'same-sex marriage' is preferred because it is more inclusive and more accurate than 'gay.'"
Via e-mail and phone, NLGJA can offer assistance from fellow journalists about language choices and reporting dilemmas. NLGJA also can conduct in-newsroom Q&A sessions with editors and staff through our Newsroom Outreach Project. Contact Deputy Executive Director Thomas Cashman Avila at tavila@nlgja.org or 202-588-9888, ext. 17 for more information.
Additional Resources
Groups Opposed to Marriage for Same-Sex Couples
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