The narrow Prop 8 decision

“The difference between the right word and the almost right word is the difference between lightning and a lightning bug.”Mark Twain

That quote is one of my favorite.

In an extremely loose fashion, I think it applies to the two news stories I’m about to review — each of which appeared above the fold on the front page of a different Times today, one in New York and the other in Los Angeles.

I first read the New York Times’ story on a federal appeals panel’s ruling Tuesday throwing out California’s Proposition 8, a voter-approved ban on same-sex marriage passed in 2008. I found the coverage confusing, beset with legalese and lacking any real insight on the repeated characterization of the 2-1 decision as “narrowly framed.”

Then I read the Los Angeles Times’ story and was amazed by how much more effectively it explained the judges’ reasoning (on both sides), analyzed the potential national ramifications and clearly made me understand the meaning of “narrowly written.”

The top of the L.A. Times report:

Reporting from San Francisco and Los Angeles — A federal appeals court has declared California’s 2008 voter-approved ban on same-sex marriage unconstitutional, concluding that the prohibition served no purpose other than to “lessen the status and human dignity of gays and lesbians.”

The 2-1 ruling by the U.S. 9th Circuit Court of Appeals was narrowly written to limit its scope to California’s borders and possibly even avoid review by the U.S. Supreme Court, legal experts said. Nonetheless, gay-rights advocates hailed Tuesday’s decision as historic, while supporters of Proposition 8 immediately vowed to appeal.

Instead of expanding the constitutional rights of gays and lesbians, the court based its decision on a 1996 U.S. Supreme Court precedent that said a majority may not take away a minority’s rights without legitimate reasons.

The two stories, dare I say, epitomize the difference between lightning and a lightning bug.

The N.Y. Times story boils down the decision to two judges on one side who believe Proposition 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.” Then there’s the dissenting judge, who “wrote that the court was overreaching in nullifying a voter initiative.” That’s the full extent of the dissent, if all you read is the N.Y. Times. 

Contrast that with the L.A. Times’ report, which explains why the 2-1 decision may be seen as narrowly applying to California and not a potentially precedent-setting U.S. Supreme Court case:

But other lawyers and legal scholars said the 9th Circuit might have the final word on Proposition 8 because the ruling was so pointedly limited to California, a state where voters stripped a minority of a right that already existed and where the usual justifications for a same-sex marriage ban, responsible parenting and procreation, are undercut by domestic partner laws.

Proposition 8 passed as a constitutional amendment six months after the California Supreme Court struck down a state law that limited marriage to a man and a woman, and an estimated 18,000 same-sex couples married during that time. The initiative also did not affect parenting rights of gays and lesbians, which are protected under other state laws.

“That legal background does not exist in most states,” said University of Minnesota Law School professor Dale Carpenter, who has followed the case.

As for the dissenting judge, whose only rationale was upholding the will of the voters? According to the L.A. Times, there’s a little more to his position:

Judge N. Randy Smith, a conservative appointed by President George W. Bush, dissented, arguing that limiting marriage to opposite-sex couples could be justified on the grounds that heterosexual couples are the only couples who can procreate naturally.

“The family structure of two committed biological parents — one man and one woman — is the optimal partnership for raising children,” Smith wrote.

He also noted that states may legitimately prohibit bigamy, incest, bestiality and other sexual relationships condemned by society, as well as impose age limits for marriage or require tests for venereal disease without running afoul of constitutional rights.

Barry McDonald, a constitutional law professor at Pepperdine University, called Smith’s arguments “very reasonable.” Whereas the Colorado case barred gays from receiving all sorts of protections from discrimination, Proposition 8 was limited to marriage, McDonald noted.

“It’s going to be tougher to make the case that the voters of California were animated by pure animus alone” in passing Proposition 8 “since they already had done so much in giving gays and lesbians all the rights of marriage,” McDonald said.

Alas, and maybe it’s just me, but the N.Y. Times gave me a chuckle by including a parenthetical statement in one sentence suggesting that “some view” the Ninth Circuit as “liberal.” Actually, “the most notoriously liberal appeals court in the nation” is how a leading evangelical describes the circuit that in 2002 declared the “one nation under God” phrase of the Pledge of Allegiance unconstitutional.

Even more humorous, given the Ninth Circuit’s notoriety, the N.Y. Times apparently got the circuits confused in its original story. This correction is appended to the online story:

Correction: February 7, 2012

A previous version of this article said supporters of Proposition 8 might ask a larger panel of the 11th circuit to review Tuesday’s decision. It would be the Ninth Circuit.

(A quick Google search reveals that the 11th Circuit is based in Atlanta.)

For its part, the L.A. Times characterizes the two majority judges this way:

Joining Reinhardt, a liberal lion of the 9th Circuit appointed by former President Jimmy Carter, was Judge Michael Daly Hawkins, a former Arizona federal prosecutor and an appointee of former President Bill Clinton.

Both stories, meanwhile, end with a jubilant supporter of gay marriage celebrating Tuesday’s ruling. I guess none of the people (including religious leaders) who rallied on behalf of Proposition 8 were available to express their disappointment?

Those are, of course, just two examples of the coverage of the decision. Have you seen other particularly egregious or exceptional stories? Please provide links in the comments section.

A reminder that GetReligion promotes fair, accurate reporting on religion in the secular media. We’re not here to argue the case or the politics, so please focus on journalism or we’ll be forced to overturn your comment with no appeal.

Photos via Shutterstock

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About Bobby Ross Jr.

Bobby Ross Jr. is an award-winning reporter and editor with a quarter-century of professional experience. A former religion editor for The Oklahoman and religion writer for The Associated Press, Ross serves as chief correspondent for the The Christian Chronicle. He has reported from 47 states and 11 countries and was honored as the Religion Newswriters Association's 2013 Magazine Reporter of the Year.

  • Mark Baddeley

    I don’t have other reports to throw into the mix, certainly not better than the LA Times (okay, one or two much worse than NY Times but after the Komen wildfire I can do with a break from bad journalism).

    My interest is partly legal and partly jounalistic. IIRC one of the things that raised a lot of eyebrows (including mine) was Judge Walker’s extensive findings of fact instead of findings of law that appeared to seek to define opposition to two people of the same gender marrying as potentially abusive prejudice.

    The dissenting judge in this case appears to have disagreed fundamentally about those findings of fact – his opinion is based on arguments that Walker found as a matter of fact were incorrect. I would love a journalist to address that in a report somewhere.

    That seems important to this story, and bears upon the religious dimension as part of the implications of Walker’s findings seemed (to me and, from what I could see, others) to set up a legal framework whereby religious opposition to same-gender sex is inherently abuse.

    I’d also like to see why the judges held that Judge Walker didn’t have a conflict of interest in the Prop 8 case. I’ve seen a number of reports indicate that that was one of their findings, but not why. As a non-lawyer I have no way of knowing whether that is just liberal partisanship, judges covering for each other, or well-grounded in the history of practice of law. I’m open to any of those explanations. But I need information.

  • Mark Baddeley

    Should have reread it before I posted it. My point about the seeming conflict over the findings of fact is that I have no idea such an apparent conflict works out. One of the things I read was that by putting things in as findings of fact and not law, it rendered much of Judge Walker’s case immune to being overturned by a higher court. I don’t know if that’s true either.

    So some attention to those kind of issues would be nice in a report sometime.

  • Sarah Webber

    I keep track of the Anglican Curmudgeon mostly for his Anglican wars commentary, but he has a comment on this as well:

  • Bobby Ross Jr.


    Here is the N.Y. Times link to the ruling itself.

  • Mark Baddeley

    Thanks Bobby, and I’ll probably read it in the next week or two – I did for Walker’s Prop 8 decision a year back and a few others that interested me in the U.S.A.

    But I was also trying to say something constructive about the journalism issues, not just my thing. It wasn’t (exactly) what you asked for, but was trying to be in a similar ballpark. Going out from here I think some attention to those things I mentioned would be one element in some good reports.

  • Jerry

    I read a good chunk of the decision online before the news stories emerged. It’s from my perspective a pretty decent read and covers a lot of why they ruled the way they did. I recommend that to anyone evaluating how the media covered the story because the comparison to the decision and how the decision was reported is pretty easy to make if you can avoid too strong a confirmation bias.

  • michael

    The problem with using that great Mark Twain quote to illustrate your point, Bobby, is that you have to be from God’s country to know what a ‘lightning bug’ is.

  • Bobby Ross Jr.


    Maybe I should have embedded the “Fireflies” video with the post. :-)

  • dalea

    Bobby asks:

    I guess none of the people (including religious leaders) who rallied on behalf of Proposition 8 were available to express their disappointment?

    This story I followed in the GL press, which gave fairly thorough coverage. What has happened in California is that the local leaders of the Prop8 campaign have consistently not spoken to the press. They have left that job to the national figures from organizations like FOF or Family Research Council. No idea why, but this has been consistent in the CA coverage since Sept 2008. Pro Prop8 rallies would be covered with the comment that no one from the rally wanted to speak to the press.

    The findings of fact were submissions by learned professions such as the National Association of Social Workers, the APA and so forth. This was fully covered at the time, with frequent interviews with officers of these associations. Apparently, this is a standard legal practice: on matters of fact the profession that would deal with the subject is asked for its official position on the subject which then becomes a finding of fact when the court accepts it.

  • Per Smith

    “A reminder that GetReligion promotes fair, accurate reporting on religion in the secular media. We’re not here to argue the case or the politics, so please focus on journalism or we’ll be forced to overturn your comment with no appeal.”

    So reads the disclaimer at the bottom of this article. I’ve just recently bothered to read some or the articles on this website and I’m a bit confused about something. What exactly do many/most of the articles you publish actually have to do with critiquing religion reporting? Take this article for example. You’re critiquing the NYT for its coverage of the dissenting opinion in this case, which you think was covered better by the LA Times. Great! But that has nothing to do with religion as far as I can tell. It is true that various religious groups have strong political opinions when it comes to Prop 8, but as you point out yourself you’re not hear to argue the politics, but to critique the media for how it covers religion. So how did it actually cover religion in a biased way here? Please help me understand. Cheers.

  • Bobby Ross Jr.

    Per Smith,

    Thank you for your question. If you have not read the “What we do, why we do it” link, that would probably be helpful to understanding the philosophy of GetReligion as far as the type of issues we cover. That primer points out the “holy ghosts” that this journalism critique site covers.

    Indeed, many of those ghosts are purely religious. But some are not. Alas, as you might know, some newspapers have religion sections, but they often give these sections names such as “Faith and Values” to include covering social or moral issues that might not be strictly religious in nature but have strong interest to religious communities, such as marriage, life and death topics.

    Meanwhile, Religion News Service touts itself as the “largest single source of news about religion, spirituality and ideas.” In fact, RNS covered the Proposition 8 decision and listed it under “Culture” and “Gender & Sexuality” headings. So RNS believed, as GR did, that this topic fell under the overall umbrella of “religion” news.

    Once the determination is made that this issue qualifies as “religion” news, then for GR, the question becomes: Did the secular media provide fair, accurate journalistic coverage of the story? We’re not critiquing the politics or taking sides on the issues involved. We’re critiquing the journalism. That’s the point I was trying to make.

    By no means was I trying to say that this is not a political story as well as a religious one. I was saying that it’s not our mission to debate the politics but rather the media coverage issues. If someone wants to debate the politics, there are plenty of places to do that. We prefer to stick to journalism.

    Hope that explanation helps.

  • Per Smith

    Bobby, I had already read “What we do, and how we do it,” but thanks for posting that link. I don’t see how the explanation there, of what your website does, covers the type of article you’ve written here. Any subject matter could be the focus of a religion story, but only if it has a religious angle or is otherwise related to religion. This is just as true for the story about a piece of legislation or judicial decision as it is for stories about food preparation, jogging, or corporate finance.

    In the explanation of what your website does, that you linked to, it seems rather clear that its stated aim is to cover how the press misrepresents the manner in which religion is related to various issues. So in the example given it was the particular religious dynamic of suicide bombings (al Qaeda targeting Christian Arabs in Saudi Arabia) that you say the NYT didn’t report. That’s a wonderfully clear illustration. Now on Prop 8, I don’t disagree that religion is relevant to many facets of the story. But what it isn’t relevant to at all are the media reports you’re critiquing. You don’t establish the relevance in your story and you don’t establish it here in answering my question.

    Appealing to the authority of the RNS (which is a logical fallacy btw) doesn’t help the situation either. What the RNS does is not what you claim to do. They cover stories relevant to religion, even if tangentially. They do not claim to cover the manner in which religion specifically is misrepresented by the media. So do you want to try again maybe and explain the media criticism you offer relates to religion? To use your own terms here, what is the “ghost” you’re chasing exactly?

  • Bobby Ross Jr.

    I’ll try one more time:

    We are reporting about flaws in the journalistic coverage of a story that — according to the court and common sense — has overwhelming religious overtones in this nation.

    We are defending balanced coverage of both the secular and religious views in this case.

  • Per Smith

    Is your aim to present balanced coverage of “secular views” or to critique religion reporting? If it is the former you need to make that clearer. The name of the website, the short one liners that describe what it does (here and elsewhere), and the longer essay, “What we do, and how we do it,” should be changed to reflect your actual mission if that is case. I came here to look at your content because I am a scholar of religion, and I had seen your tagline on Twitter, “GetReligion critiques the mass media’s coverage of religion news.” When I read your story I felt sincerely misinformed by the tagline so the first I did was to check out the mission statement, and after that didn’t clarify the matter I posted the question above.

    There is absolutely nothing wrong with running a website that ensures balanced coverage of your social/political views and/or critiques unbalanced coverage of those views. If those social/political views are, in your case, and in the cases of some of your readers, founded in religious convictions then there’s also nothing wrong with that. I’m all for it. But this business of claiming to critique how religion is covered by the media, when in cases like this that’s not what you’re doing at all, is in my very humble opinion disingenuous. Please consider re-defining your project or having stricter editorial controls on its content. Cheers.

  • Mark Baddeley

    Per smith, would you be able to articulate the definition of ‘religion’ that you are working with?

    I’m getting the impression that you’d side more on the side of ‘freedom of worship’ rather than ‘freedom of religion’ in that debate, but the conversation so far has been of the kind that means I’m not sure if that’s just the limitations of the comments to date.

    I would have thought that for many religions, the issue at stake in the prop 8 case would be seen as being part of the definition of their religion – some on one side of the debate, some on the other. I’m not sure how this issue is “not religious” news, unless the definition of ‘religion’ is something like ‘worship’.

  • Per Smith

    I’ve already answered that question Mark. It is only religious news as much as it connects to religion – be it religious worship, religious institutions, religious ideas, or anything else that falls under the umbrella of “religion.” Prop 8 is something that some religious people have very strong feelings about in no small part because of their religious convictions (of course some of those people were against Prop 8, something you’d never understand from this discussion which appears to equate religion with social conservatism). That doesn’t make any discussion of Prop 8 “religious news,” and it certainly doesn’t make any critique of Prop 8 coverage a critique of religious news coverage. Is this really that hard to understand? It seems to me that some people here think that if a critique of the news somehow validates your (religiously based) opinion on something then that critique is somehow magically a critique of religion coverage. Not so.

  • Per Smith

    A small clarification. In the above post I meant “any” as in “all.” So the sentence with that word was supposed to mean:

    “That doesn’t make all discussion of Prop 8 ‘religion news,’ and it certainly doesn’t make all critiques of Prop 8 coverage critiques of religious news coverage.”

    I understand that as written it might look like I meant that no discussion of Prop 8 is religion news. Far from it. I hope that clarifies.

  • Bobby Ross Jr.

    I think we’ve exhausted the question of why this is GetReligion territory. Appreciate your input, Per Smith, but we’re going to move on now. Thanks.