The Volokh Conspiracy

Today's New York Times includes a story on the proposed federal amendment banning same-sex marriage. The story contains the following paragraph, describing the effect of the proposed amendment:

His [President Bush's] speech came as the Senate began to debate the proposed amendment, which would define marriage as being between a man and a woman and would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage.

This is a common description of the effect of the amendment, and it has appeared in one form or another throughout much of the news media over the past few days. Nevertheless, while it's true that the amendment would at a minimum "define marriage as being between a man and a woman" and "would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage," this description implies that that's all the amendment would do. Thus, it essentially accepts the interpretation offered by some supporters of the amendment (like Senate sponsor Wayne Allard) in their effort to make it seem as narrow and reasonable as possible. It unquestioningly accepts the controversial view that this amendment is basically limited to dealing with judicial activism.

However, there's an active debate over what additional effects the amendment might have. Those of us who oppose the amendment are quite concerned that it would do far more than define marriage and limit the power of judges. As I've argued, for example, its effect may also be to ban the legislative enactment of civil unions and make other legislatively created statuses for same-sex couples unenforceable. For details of the argument about why the amendment might be interpreted in this way, see the last section of my recent Cato piece on the amendment.

But the point here is not to establish whether I'm right or wrong about the possible effects of this amendment. The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories. Not every reference to the amendment needs to note these possible additional effects (e.g., it's acceptable shorthand generally to refer to the amendment as "banning same-sex marriage"), but the possible additional effects should at least be mentioned in substantive stories about the amendment, like the one quoted above. The New York Times and other media who aspire to be fair, balanced, and accurate in reporting the news owe us better.