Prop 8: The Morning After the Strike-down

A look at some of the papers’ coverage of the California decision

A study from the September edition of The Social Science Journal comparing the coverage of gay marriage in the Chicago Tribune and The New York Times draws interest on a morning when nearly all major dailies lead with the ruling on Proposition 8.

The study—the findings of which are summarized by Miller McCune’s Tom Jacobs here—examined stories relating to gay marriage published in the papers between November 18, 2002, and November 18, 2004. Each date fell a year before or after November 18, 2003, the day on which the highest court in Massachusetts ruled a ban on gay marriage unconstitutional.

It’s noteworthy that the findings are based on reports at least six years old, and that in this particular debate, attitudes can shift quickly (though not quickly enough for some). Nevertheless, the findings are interesting, if not completely shocking given the traditional leanings of the papers. Looking at how frequently topics like the constitution, equal rights, and religion were associated with gay marriage in stories, the ideological and sexual orientation of sources, and the “tone” of stories, the study concluded:

The results indicated that The New York Times was inclined to emphasize the topic of human equality related to the legitimization of gay marriage. After the legitimization, The New York Times became an activist for gay marriage. Alternatively, the Chicago Tribune highlighted the importance of human morality associated with the gay marriage debate. The perspective of the Chicago Tribune was not dramatically influenced by the legitimization.

From the Miller McCune piece, which ran yesterday:

Stories focusing on “American tradition and family values” made up 17.5 percent of the Times’ coverage, and 22.2 percent in the Tribune. Religious attitudes toward the topic were emphasized in 12 percent of the Times stories but nearly 20 percent of those in the Tribune.

In the year after the Massachusetts ruling, the Times coverage changed in one dramatic way: The newspaper quoted far more people who were identified as gay. Twenty percent of sources quoted in gay marriage-related stories were identified as gay, compared to 5.4 percent during the year before the ruling.

The Tribune, in contrast, was more consistent. Before the ruling, 10.9 percent of sources in gay marriage-related stories were identified as gay; after the ruling, the number rose slightly to 11.8 percent.

We can’t make a direct comparison between the way the Times and Tribune covered yesterday’s news to see if these findings hold true today, as the Chicago paper ran the Los Angeles Times’s report on the ruling. But we nevertheless found it intriguing to examine—if less statistically and rigorously than The Social Science Journal’s report—the angles taken by some major dailies on the news of Judge Vaughn Walker striking down Prop 8.

The Times’s front page story, “Court Rejects Same-Sex Marriage Ban in California,” covers a lot of ground. Reporters Jesse McKinley and John Schwartz detail the decision and Walker’s reasoning, grab quotes from advocates and lawyers on either side (doing the obligatory “ideological opposites” spiel about plaintiff lawyers Boies and Olson), provide a snapshot history of the original Prop 8 vote, consider the political implications federally and locally (“still unclear”) of this latest development, and even speak to gay-man-on-the-street Ron Cook. He tells the paper, “If the court had come back and upheld it…I would have moved out of the state.”

What most pleased about the Times’s report though, was that as well as laying out the arguments of both sides of the gay marriage debate, it delved a little deeper, laying out the fundamental stakes for the groups affected by the decision.

For advocates of gay rights, same-sex marriage has increasingly become a central issue in their battle for equality, seen as both an emotional indicator of legitimacy and as a practical way to lessen discrimination.

“Being gay is about forming an adult family relationship with a person of the same sex,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in support of the plaintiffs. “So denying us equality within the family system is to deny respect for the essence of who we are as gay people.”

But Andrew Pugno, a lawyer for the defense, said Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who “simply wished to preserve the historic definition of marriage.”

“The other side’s attack upon their good will and motives is lamentable and preposterous,” Mr. Pugno said in a statement.

Interestingly, the passage suggests The Social Science Journal’s study was not far off in claiming equal rights as one of the Times’s foremost concerns around gay marriage. Pugno’s counter, as presented here, reads as limply as it did for Judge Walker.

But Prop 8 really is The Los Angeles Times’s baby. The paper has covered the issue extensively and well, and its reporting on yesterday’s decision was no exception. Not needing to venture as deep into the Prop 8 history or to provide as much context around the decision as other non-local reports, Maura Dolan and Carol J. Williams’s front-page story, “Ruling against Prop. 8 could lead to federal precedent on gay marriage,” is a forward-looking piece (and, on balance, a pro-gay marriage read, labeling the case “lopsided” in favor of the plaintiffs and exuding a somewhat exuberant tone). The reporters focus tightly on the decision, lifting heavily from Walker’s 136-page ruling, and emphasizing that it was “the first in the country to strike down a marriage ban on federal constitutional grounds.” They then set their eyes firmly on what’s next for Prop 8.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges’ rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker’s analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

“I think Justice Kennedy is going to side with Judge Walker,” said the former dean of Chapman University law school.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker’s findings that homosexuality is a biological status instead of a voluntary choice, that children don’t suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality “are going to make it more difficult for appellate courts to overturn this court’s ruling.”

For those wanting to know the legal dynamics and ramifications of yesterday’s decision—in digestible, newspaper-reader-friendly form—it’s a good piece to start. And The Washington Post’s Robert Barnes and Sandhya Somashekhar’s cover story, “Judge strikes California’s ban on same-sex marriage, Proposition 8,” also leans heavily on the court proceedings, lifting much from the written ruling. (If you’re looking for a masterful read on the case before it even began, check this New Yorker piece from January.) If you’re looking for a somewhat more personal approach, try the San Francisco Chronicle.

Politico, true to form (and we probably don’t need a study to back that claim up), asks the very Politico question: How does this affect the President? In “California Ruling puts President Obama on the spot,” Josh Gerstein writes that the decision “poses a formidable threat to President Barack Obama’s strategy of relegating divisive social issues to the back burner.” It is, as ever, a very readable report, but you can hear cogs grinding under the strain as Gerstein tries to make this an Obama-midterm story.

Walker’s ruling alone might not be enough to put the gay-marriage issue at the forefront of the national agenda. But when combined with another federal judge’s decision a month ago striking down the federal Defense of Marriage Act and the possibility of yet another ruling soon against the military’s Don’t ask, don’t tell policy on gays, a notable judicial tilt towards gay rights seems to be underway that can only increase the prominence of the debate.

Coming on the eve of the midterm elections, the pro-gay-marriage rulings are also in tension with the sustained effort Obama and his top aides have made since the 2008 campaign to push polarizing and contentious social issues like gay rights, abortion, race, and even gun rights into the background.

While advocates on both sides are eager to see the same-sex marriage issue back in the headlines, it’s far from clear just how prominent a role it will ultimately take. With unemployment rates near 10 percent, the economy is likely to be the driving force at the ballot box this fall. The country is mired in a difficult war in Afghanistan, has faced a series of terrorist attacks, and is polarized over a groundbreaking federal effort to overhaul the health insurance system.

We suspect the last paragraph will hold most true in a week’s time, when this issue quiets down on its path to the next big court decision.

What is perhaps most interesting about the reporting generally is that aside from quotes from family groups and Prop 8 advocates, there is little of the emphasis on family values and human morality in any of the mainstream reporting, at least in the capacity of arguments against gay marriage. This includes today’s sharp takes from the Wall Street Journal and The Christian Science Monitor.

If that holds true in the coming days, and represents some sort of wider trend, then it gives gay marriage rights proponents some cause for optimism. As The Social Science Journal study authors write:

The role of news media becomes relatively important while reporting these public debates over gay marriage, because not only do the news media affect people’s attitudes toward gays and lesbians by positively or negatively reporting the gay and lesbian issue, but also shape people’s perspectives of the same-sex marriage policy by framing the recognition of gay marriage in the news coverage.

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Joel Meares is a former CJR assistant editor.