Here’s an excerpt from an NPR story I heard yesterday evening; anchor Linda Werheimer is speaking to reporter Anthony Brooks. The story was presented as coverage of a news event, not as an opinion piece:
BROOKS: . . . Nationally, tomorrow will be the starting point of what will likely be a series of court challenges. Out-of-staters who get married here will take their marriages back to their home states, and at least a few of them will demand that their marriages are recognized back home. And some 38 states have so-called Defense of Marriage Acts, but that would conflict with constitutional provisions that recognize contracts and agreements from state to state. So all of this will end up in the courts in the years to come before it’s all sorted out.
Now as it happens there’s a hot debate about whether state Defense of Marriage Acts are unconstitutional. Many opponents of same-sex marriage and many supporters argue that the state DOMAs and the federal DOMA are quite constitutional. Some supporters of same-sex marriage make this a major part of the argument: There’s no need to enact a Federal Marriage Amendment, they say, because it’s right for each state to decide whether to recognize same-sex marriages (both in-state and out-of-state marriages), and existing law allows states to do this. Some supporters of same-sex marriage argue the contrary, and say that the DOMAs are indeed unconstitutional, and the Full Faith and Credit Clause mandates recognition of out-of-state marraiges. (Some opponents of same-sex marriage argue that such a result is possible and the Federal Marriage Amendment is therefore necessary, but I’ve heard no such opponents argue that the result is indeed correct and that the DOMAs are indeed in conflict with the constitution.)
And yet this NPR reporter simply asserts that the DOMAs “would conflict with constitutional provisions” — not that there’s a hot debate on the subject, in which even some proponents of same-sex marriage argue that there’s no constitutional conflict, but that the laws indeed would conflict with the Constitution. Not particularly objective reporting, it seems to me.
Note also that the Full Faith and Credit Clause has never been understood as “recogniz[ing] contracts and agreements from state to state.” The text refers to full faith and credit being given to “public Acts, Records, and judicial Proceedings,” not to contracts and agreements. There’s a debate whether a marriage fits within one of these categories (divorce decrees, which are court orders, generally do). But the debate is made complex in part by the fact that the Clause does not generally mandate interstate recognition of “contracts and agreements.”
UPDATE: Reader Stephen Hardwick suggests that the reporter was just misspeaking: “[T]he context indicates momentary carelessness, not bias. While Mr. Brooks was wrong to say that DOMA’s ‘conflict with constitutional provisions[,]’ the next sentence shows he inadvertently left out the word, ‘possibly’ (or the equivalent). That next sentence states that the effect of the DOMA’s would have to be sorted out in the courts ‘in the years to come.’ If DOMA’s were clearly unconstitutional, it would not take years. Unless there is something else in the report that indicates otherwise, it appears Mr. Brooks was correctly saying that the constitutionality of DOMA’s is unclear.”
I don’t think the context is as clear as my correspondent suggests. Even when a law is clearly unconstitutional, it does take years to get it struck down. Add the time it takes to litigate the matter at the trial court level, the time it takes to appeal, the time it takes to petition for review by the state or U.S. Supreme Court, the time it takes for the Supreme Court to resolve the matter, and — if the U.S. Supreme Court doesn’t take the case — the time it takes for enough lower courts to agree on the issue that the matter is seen as settled, and you’re almost certain to have a process that takes many years. Nor do I see anything else in the context that points firmly towards the reporter’s misspeaking, rather than deliberately expressing his view. Nonetheless, I do agree that it is indeed possible that the reporter did simply misspeak.
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