Getting the Marriage Story Right

The battle over marriage rights for same-sex couples in America has been a major news story for much of this decade. It continues to be an ever-evolving story, with new developments arising throughout the country each year.

Massachusetts in 2004 became the first state to allow same-sex marriage. The latest is New York, with licenses being issued starting July 24, 2011. Iowa, Vermont, New Hampshire, the District of Columbia and Connecticut also allow same-sex couples to wed.

Three states -- New York, Vermont and New Hampshire -- and the District of Columbia allow marriage for same-sex couples through a legislative act.

Vermont legislators on April 7, 2009, overruled their governor's veto of same-sex marriage legislation they had passed.

New Hampshire Gov. John Lynch signed into a law a bill legalizing same-sex marriage on June 3, 2009, after legislators agreed to amend the legislation so that religious institutions opposed to same-sex marriage would be protected for not performing the ceremonies.

The New York Senate narrowly voted June 23, 2011, to approve same-sex marriage after intense lobbying of legislators by Democratic Gov. Andrew Cuomo, who strongly supports marriage rights for gay and lesbian couples. Since 2008, the state had already recognized marriages performed elsewhere.

Iowa's Supreme Court ruled on April 3, 2009, that the state's statutes against same-sex marriage were unconstitutional. Unlike many other states, Iowa voters cannot pass a referendum at the ballot box to overturn the court's decision. Any amendment to the state's constitution must first be passed through the Legislature.

The only other state with legally married same-sex couples is California. In June 2008, gay couples began to marry, but in November the gay nuptials came to an end when voters overturned their Supreme Court's ruling at the ballot box. The court ruled May 26 that the same-sex marriage ban is valid, while at the same time, it also ruled
that those marriages already performed are legal. A federal judge ruled on August 4, 2010, that the vote to ban same-sex marriage in California was illegal, assuring an appeal that could go to the U.S. Supreme Court.

Several states offer civil unions or other legal arrangements similar to marriage, such as domestic partnerships, including California, Delaware, Hawaii, Illinois, Maine, New Jersey, Nevada, Oregon, Rhode Island, Wisconsin and Washington. Many other local jurisdictions and municipalities, even in states that don't allow gay marriage or civil unions, allow same-sex couples to register as domestic partners.

While gay rights advocates cheered these developments, they have also suffered numerous defeats in recent years. Thirty states have enacted gay marriage bans in their constitutions.

Federally, the national Defense of Marriage Act continues to restrict the more than 1,100 rights and benefits granted to married heterosexual partners from those same-sex couples residing in states where same-sex marriage is legal.

Democratic President Barack Obama is split on the issue, as he supports DOMA's repeal, has instructed the Justice Department to stop defending it and is against a federal amendment restricting marriage rights being added to the U.S. Constitution. But he does not personally believe in granting marriage to gay and lesbian couples, instead favoring civil unions.

Obama has softened on the issue recently, calling New York's vote to allow same-sex marriage "a good thing."

Marriage for same-sex couples erupted as a national issue on Election Day 2004, when 11 states passed laws or state constitutional bans by wide margins. The only state not to have any laws relating to same-sex couples is New Mexico, where efforts to adopt domestic partnerships have failed since 2007.

Reporters covering the debate should remember that marriage laws ared 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 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." Other states 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, nine 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 George W. 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. Now that Democrats control both the White House and Congress, the issue is unlikely to be addressed again until after the 2012 presidential election, and then, it would only be revived if Republicans are able to regain majority control.

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 Bach Polakowski at Bach@nlgja.org or 202-588-9888, ext. 10 for more information.

Additional Resources

Freedom to Marry
Human Rights Campaign
Defense of Marriage Act (Wikipedia)
Defense of Marriage Act (Thomas-The Library of Congress)
National Public Radio Interactive Map
Pew Forum on Religion & Public Life
Stateline.org

Groups Opposed to Marriage for Same-Sex Couples

Concerned Women for America
Family Research Council
National Organization for Marriage