As I write this, the Supreme Court’s rulings on the Defense of Marriage Act (DOMA) and California’s Proposition 8 have just been announced, and the airwaves and cables and Internet are full of truly awful reporting on these important cases. I welcome the outcomes in these cases both as just results and as good Supreme Court and Constitutional housekeeping, but I deplore the news media’s inability to grasp nuance or resist sensational overstatement in matters of such national importance and interest.
Rachel Maddow has just declared that, as a result of the rulings, the issue of gay marriage “is now decided as a nation. The argument is won.” Well, no. Love ya, Rach, and love your hair, but the idea that we’ve all coalesced into one harmonious, gay-embracing mass due to a couple of edicts of a bunch of jurists in Washington is just wishful thinking, as silly as the idea that Obama’s victory last November showed Republicans the error of their political ways. No, and no.
Soon after the two decisions were released, some female desk-jockey on CNN who thinks wearing black-framed glasses makes her an intellectual announced that “gay marriage has been legalized in the United States.” Uh, no. This is not just bad reporting on the part of a major news organ; it’s incompetent and cruelly misleading reporting.
True, I’m a lawyer and care more than non-lawyers about getting legal nuance right. But this isn’t that hard, folks, and we deserve more from the people who are paid big bucks to mediate reality for us.
The DOMA decision is relatively easy to grasp: the Supremes struck down a portion of a statute, passed by Congress and signed by then-President Bill Clinton, that restricted the word “marriage,” as that word is used in any and all federal laws, to mean the legal union of a man and a woman. The result of DOMA was that couples of the same sex could not avail themselves of the option to file joint Federal tax returns, or to receive spousal Social Security benefits, or to benefit from the spousal exemption from the federal estate tax, to name just a few economically-significant results, in spite of the fact that those couples may have been legally married under the laws of various states that have, in fact, legalized gay marriage. It isn’t that hard for even the most conservative of jurists, no matter what they might think about the morality or advisability of gay marriage, to conclude that this works an adverse discrimination on certain legally-married persons and not on others, in violation of the “equal protection” clause of the U.S. Constitution. That’s what a bare majority of the Supreme Court, led by Justice Kennedy, concluded and ruled. End of DOMA.
But it didn’t take long for otherwise reliable reporters to get even this wrong. Renee Montagne, the usually sober-sided co-anchor of NPR’s “Morning Edition,” was heard to blurt to a legal expert she was interviewing soon after the DOMA ruling was released, that “this means that states can pass gay marriage laws with impunity, right?” The legal expert kindly refrained from laughing at her and instead said, uh, no, this means that gay people already married under state law can benefit from federal laws that were previously unavailable to them. It has nothing whatever to do with what states may or may not legislate with respect to gay marriage.
With the relatively simple DOMA ruling quickly muddled, there was little hope that the procedurally complicated Prop 8 ruling would be rationally explained. What the media were hoping for, and were at least potentially competent to digest, was a broad ruling on the constitutionality of Prop 8, which prohibited gay marriage per se by installing in the California constitution specific language to that effect. The conclusion that this, like DOMA, was an unconstitutional form of discrimination could have come under the banner of the equal protection clause of the U.S. Constitution (which trumps state constitutions).
However, where the Court can avoid deciding a thorny constitutional issue because of some technical defect in the proceedings, it often does. That is what it chose to do in this case. Rather than broadly rule on the constitutionality of Prop 8, it simply said that the private citizens who had brought the appeal of the case to the Supreme Court lacked “standing” to bring the appeal. Hence a lower federal district court ruling that the language of Prop 8 was unconstitutional under the U.S. Constitution was left standing. The result is that, as of now, the Prop 8 anti-gay marriage language is stricken from the California constitution, and gay marriage is at least not illegal in California (same-sex marriages can resume there once a judicial stay that was put in place to allow time for the appeals is lifted).
But as soon as the word “standing” became important to the case, you knew the news folks would never get it right. They can be forgiven: law students spend much of their first year of law school learning about standing to bring suit and the jurisdiction (or lack thereof) of courts to hear suits. In the Prop 8 case, the people that one would have thought would defend the law – i.e., the officials of the State of California, whose constitution was being litigated – chose to sit this one out (because, being liberal Democrats, they thought Prop 8 was unjust and had no interest in defending it). Instead, its defenders were a bunch of private right-wing ideologues who had originally marshaled enough signatures to put Prop 8 on the ballot (it was a voter referendum, after all). It was these people that the Supremes concluded lacked “standing” to come before the Court to make arguments in defense of Prop 8 because, in effect, they had no dog in the hunt: they could not show how they, as private individuals, would be affected by the outcome of the case, other than to have their ideologies offended (which has never been recognized as a badge of “standing”). In effect there was no Supreme Court case, and in turn no Supreme Court ruling “on the merits.” Hence, the ruling of the last court that did have jurisdiction because the parties before it had standing (the gay men who were aggrieved) – the ruling of a single federal district court judge in California — stands as law until overturned on a new appeal, should one ever be brought.
This sequence of events has been interpreted — by Ms. Maddow among others — as a declaration that Prop 8 is unconstitutional and “the argument is won,” when the Supreme Court’s ruling says nothing of the sort. The ruling was a purely procedural one, and its result affects only California, whose constitution was at issue. Indeed, my guess is that, if the current conservative majority on the Court had decided the Prop 8 case on the merits, it would have found no ground in the U.S. Constitution for overturning a duly-conducted state voter referendum, especially given that they had just eliminated one of the equal protection arguments against Prop 8 by striking down DOMA. The decision to reject the case for lack of standing was itself a 5 to 4 vote, with the four dissenters making up a group of very strange bedfellows, including the ultra-conservative Justice Thomas, who undoubtedly wanted to decide the case on the merits in order to uphold Prop 8, and Obama appointee Justice Sotomayor, who undoubtedly wanted to decide the case to strike Prop 8 down.
The difference between the Court’s deciding the Prop 8 case on the merits and punting it back to the lower court is huge: the former course would have addressed gay marriage bans at the level of the U.S. Constitution and thus affected all 50 states; the latter affects only California (since that single district court judge’s opinion of the Constitution can be ignored by the rest of the country, whereas the opinion of the Supreme Court cannot).
Why should all this be so hard for major news outlets to get right, even in the first half-hour of reporting? We have known for well over a year when these cases would be decided, and all the scenarios (including the remand of the Prop 8 case for lack of standing) were well understood, at least by lawyers. How could legally accurate and easily understood descriptions of all the possible outcomes and their consequences not have been written up and loaded on the teleprompters long ago? Where is Nina Totenberg when we need her?
One obvious answer: it’s better TV (or radio) to be obtuse about it. Sensationalism sells, and accurately reporting the rules of civil procedure does not.
Still, all in all, a happy day for those of us who believe in human rights – if not for those of us who look to news media for help in understanding daily events.