Margaret Gram Crehan

Katherine Rickenbacker

Northeastern University

The Changing Debate on Same-Sex Marriage in the United States

Abstract

Through an examination of the past decade of debate on same-sex marriage (1996 - 2006) in both liberal and conservative magazines and journals, this paper follows the changing nature of the discourse from both same-sex marriage proponents and opponents. Same-sex marriage debates can be categorized into five specific areas: religion/morality, procreation / welfare of children, family values, rights and judicial activism. Given the considerable recent shift in public opinion regarding same-sex marriage, we review the language used by both liberal and conservative news magazines to discuss these issues over time. From a feminist standpoint, it is useful to examine the production and evaluation of knowledge in popular culture, particularly as it impacts national discourse. Our analysis suggests that media discourse around same-sex marriage is altering the way Americans view this issue, particularly as it is situated historically and globally. These changes suggest a gradual movement toward eventual legalization of same sex marriage on a national level.

Introduction

The goal of this paper is to review the language of both conservative and liberal news magazines as it relates to the changing nature of the same sex marriage debate. We examined three conservative (The American Spectator, National Review, and The Weekly Standard) and four liberal (The American Prospect, U.S. News and World Report, Newsweek, and The Daily Republic) news magazines and journals. These sources were chosen for their wide circulation and for the length of time they have been in publication. We attempt to show that arguments against same-sex marriage today, as compared to 10 years ago, rely less on such issues as religious principles, morality, and procreation, and more on conversations around the welfare of children, marriage as an institution, and judicial activism. In addition, those who support same-sex marriage are more likely today than in years past to focus on constitutional rights and equality. There are many possible reasons for the changing nature of these arguments, from scientific research showing that homosexuality may be genetic (Pinker 2005) to social science research concerning gay parenting and adoption (Avery et. al 2007). Additionally, gains made in the area of gay and lesbian rights in the courts have arguably had a normalizing effect on public opinion. Additionally, the feminist “critique of power, hierarchies, and owned knowledge” (Smith 2001), as well as its insistence on understanding the power networks surrounding what constitutes “official knowledge” (Foucault 1972), make an examination of news magazines and journals especially salient.

In 1996, a national Harris Poll indicated a 5-1 opposition in the U.S. to same-sex marriage (Harris Interactive 2004). The same poll conducted in 2004 found that many more people approved of same-sex marriage, with only a 2-1 margin of opposition. Likewise, when given a choice in 2004 between allowing same-sex marriage, civil unions or no protections at all, the public is divided with 35% voting for no protections, 31% favoring civil unions and 27% in favor of same-sex marriage (Harris Interactive 2004). In a Gallup poll on this issue in 2006, the question was asked, “do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?” This time, 42% of respondents stated it should be valid, 52% stated it should not be valid, and 2% were unsure. However, as a recent ABC news poll reported, of those who oppose same-sex marriage, only 42 % say that their opposition rises to the level of amending the U.S. Constitution (Polling Report 2007).

Clearly there has been a shift toward acceptance of same-sex relationships, as well as toward some legal recognition of these unions. Such marked changes in approval of an issue which just came onto the political and legal landscape over a decade ago begs the question of what factors made these changes possible. Measuring precisely what accounts for this shift is perhaps an impossible task, as media representation, legal rights, and personal connection with the gay community all could play a part. However, we argue that a useful starting point involves examining how the debate over same-sex marriage has changed over the past 10 years by both opponents and proponents alike, and how this change has corresponded with the national shift towards greater acceptance of the gay and lesbian community.

Background

The question of where to begin a national analysis of the same-sex marriage debate is difficult, as getting to this historic place has been influenced by many factors, including but not limited to the gay rights movement, the women’s rights movement, the black civil rights movement and the evolution of marriage and constitutional jurisprudence. In looking for an appropriate date to begin our evaluation, we first examined the history of same-sex marriage.

The analysis could begin in 1971, when Jack Baker and Mike McConnell attempted to marry in Minnesota under the theory that, since there was no specific prohibition against same-sex marriage, it implied legislative intent to allow their marriage. In ruling against them, the opinion by the Minnesota Supreme Court stated: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.” (Baker v. Nelson 291 Minn 310 1971) The definition of marriage as derived from the book of Genesis sets the stage for the dividing line between morality and individual rights that will come to signify the next several decades of jurisprudence. This language of morality and religiosity is heavily reflected in the first half of our analysis, between 1996 and 2002.

Although the case was appealed to the U.S. Supreme Court, it was dismissed on procedural grounds, for failure to present a federal question. Since the Supreme Court did not decide the issue of same-sex marriage rights in this case, there was no binding precedent, which in turn made the 2003 Goodridge decision possible, legalizing same-sex marriage in Massachusetts. From a constitutional law standpoint, our analysis could begin even further back in history, to 1967, when the Supreme Court struck down miscegenation laws in the landmark case Loving v. Virginia. This case is significant not only because the Supreme Court concluded that marriage was a fundamental right, but also because such laws have been successfully analogized to the barriers in place when same-sex couples attempt to marry. Indeed, many proponents of same-sex marriage today still make this rights-based comparison.

In December of 1990, three couples, notably without the support of a national gay legal agency, filed marriage applications at the Department of Health in Honolulu. The Department’s denial of their applications, lead to a legal battle that would last six years. In 1993, the Hawaiian Supreme Court ruled that in light of the Hawaii Constitution’s equal protection clause, which explicitly prohibits discrimination on the basis of sex, the Circuit Court had ruled erroneously against the plaintiffs and remanded the case. In 1998, the legislature in Hawaii voted to amend their Constitution to allow state legislatures to restrict marriage to men and women only. This legislation had the effect of rendering any equal protection claim moot. Although the Hawaii case ended without solidifying same-sex marriage rights, Jason Pierceson, in his book “Courts, Liberalism and Rights,” contends that the litigation in Hawaii struck a political nerve. He states: “the report from the House Judiciary Committee cited the Hawaii litigation as the reason for the Congress’ action noting the ‘nature of the orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers’” (114). Although the report by Congress had mischaracterized the role of advocacy groups and erroneously alluded to a nationwide litigation strategy by gay rights groups, nonetheless, it is clear that both state and federal legislatures believed they were under judicial assault from state courts.

The Defense of Marriage Act (DOMA), characterized as “a bill to define and protect the institution of marriage” (HR 3396, 104 Cong. 2^nd Ses. 1996) had 118 co-sponsors. The legislative debate lasted for one day and ended with a 342-67 vote in favor of its enactment. (Cong. Rec. 11-12 Jul. 1996: 7270, 7504). The law allows each state to deny any marriage-like relationship between persons of the same-sex that has been recognized in another state. Secondly, the law explicitly recognizes for purposes of federal law that marriage is "a legal union of one man and one woman as husband and wife" and by stating that spouse "refers only to a person of the opposite sex who is a husband or a wife" (HR 3396, 104 Cong. 2^nd Ses. 1996). This language of what does and should constitute marriage is reflected in many of the arguments made by conservative magazines and journals during the later part of the debate, specifically as it relates to family values, parenting, and definitions of the institution of marriage.

Following the Hawaii same-sex marriage litigation, many states began enacting laws to prevent the recognition of same-sex marriage in their state. In 2000, in Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), the Vermont Supreme Court mandated that the legislature pass a Civil Union Law providing same-sex couples many of the same advantages of married couples including: rights under family law such as child custody, child support and alimony; rights to sue for wrongful death; medical rights/ family leave benefits; joint state tax filing and property inheritance. Although this case did not create any federal rights for same-sex couples, Vermont did become the first state in the country to legally recognize civil unions between gay and lesbian couples. This civil union legislation began an abundance of rights-based discourse from both liberal and conservative media, particularly in debating the differences between civil unions and same-sex marriage.

Although the gay rights movement had gained a great deal of momentum at this point, activists were divided as to which issues deserved the most attention. On the state level, many activist groups lobbied local legislatures to have sodomy laws, which were largely unused, taken off the books. Although sodomy laws were not enforced, they served as a barrier for gay rights litigation because opponents of any such measures would argue that it was wrong to grant civil rights to groups whose conduct was illegal (Pierceson 119). In 2003, the U.S. Supreme Court in Lawrence v. Texas overturned their prior ruling in Bowers v. Hardwick by holding that sodomy laws are unconstitutional. In his repudiation of litigating morality, Kennedy, writing for the majority, stated, “The condemnation [of homosexual conduct] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.. These considerations do not answer the question before us... Our obligation is to define the liberty of all, not to mandate our own moral code” (Kennedy 10, citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833). In deciding Lawrence v. Texas, the Supreme Court did more than strike down irrelevant laws, they paved the way for further gains in the area of gay rights. The discourse around same-sex marriage shifted importantly around this time away from a language of morality and religion, since this case effectively ruled that this kind of moral judgment does not have a place in the legal system.

In their 2004 article “The Courts and Public Discourse: The Case of Gay Marriage,” Machacek and Fulco argue that the Court’s “activism” must be understood less in terms of separation of powers between two branches of government – legislative and judicial – and more in terms of an increase in the separation of church and state. They contend that through carving out privacy rights, beginning with Griswold v. Connecticut, the Court is usurping the role that the church once played in society. As such, they view the Federal Marriage Amendment as “an attempt by religion to recapture sovereignty over public discourse about contentious moral issues by writing a majoritarian moral view into the Constitution” (768). This characterization of same-sex marriage victories as “judicial activism” persists today among same-sex marriage opponents.

This timeline of important rulings regarding the same-sex marriage debate is crucial for understanding the historical roots of these six major categories of debates over same-sex marriage. Each can be traced back to the political and social climate of its particular year, which in turn was shaped largely by these historic court decisions. For this reason, we split our timeline at the Lawrence v. Texas decision, since it represents a major departure from a discourse of morality and religion, and evaluate the discourse of 1996 – 2002 in comparison with the discourse of 2003 – present.

Methodology

For the purposes of this study, we used the search term “same sex marriage” to examine all articles including this phrase between the years of 1996 and 2006, using three conservative (The American Spectator, National Review, and The Weekly Standard) and four liberal or neutral (The American Prospect, U.S. News and World Report, Newsweek, and The Daily Republic) news magazines and journals. We chose to separate these by “liberal” and “conservative” in order to examine both sides of how the same-sex marriage debate is being presented.

We examined all of the 141 articles published in these magazines and journals between 1996 and 2006 containing the phrase “same sex marriage”. Of the 140 articles, we eliminated four articles that did not pertain to the topic, resulting in an overall total of 137 articles.

Language used to talk about same-sex marriage was coded into the following five categories, which were developed inductively based on the most common themes we observed:

1. Religion / Morality: Bible references to homosexuality as an abomination, marriage as a religious institution, homosexual sex acts as religiously immoral, homosexuality as morally wrong
2. Procreation / Welfare of Children: Marriage’s purpose is for procreation, children should be raised by married, different-sex parents
3. Family Values: Same-sex marriage begins a “slippery slope” to the weakening of marriage as a social institution, marriage is between one man and one woman
4. Rights: Debates regarding equal and constitutional rights
5. Judicial Activism: Victories for homosexuals as evidence of activist judges

Any time one of these themes was mentioned in the article, the category would be scored once and only once. However, multiple themes often appear within the same article. Therefore, any given article may be scored as having multiple themes. Articles were broken down into two time frames: 1996 – 2002, and 2003 – 2006, for the reasons described earlier.

A total of 137 articles were studied, from six major magazines and journals between 1996 and 2006. Of this total number, between 1996 and 2002, 11 articles were from liberal sources and 14 were from conservative sources. Between 2003 and 2006, 32 articles were from liberal sources and 79 were from conservative sources.

Comparisons were then made between frequency of occurrence of these six categories in liberal and conservative press by time period.

Results

Table 1: Occurrence of Themes in Same Sex Marriage Debate in Selected Magazines and Journals, by Political Viewpoint and Time Period

	Religion / Morality	Procreation / Welfare of Children	Family Values	Rights	Judicial Activism
Liberal 1996 – 2002 N=11	36%	27%	18%	35%	9%
Conservative 1996 – 2002 N=14	57%	28%	0%	14%	48%
Liberal 2003 – 2006 N=32	40%	15%	9%	46%	18%
Conservative 2003 – 2006 N=79	44%	53%	30%	31%	59%

As shown in Table 1, percentage of conservative debate concerning religion and morality decreased in the later years, shifting to a heavier emphasis on judicial activism, family values, and discussions of procreation / welfare of children.

Our chi square value is 0.025, which indicates that the results are significant.

Categories of Discourse

Religion/ Morality:

When same-sex marriage first came up for debate as a possibility in the early 1990s, the top argument against it was religiously based. The argument states that, because homosexuality is condemned in the Bible as an abomination, it is morally and religiously wrong to permit same-sex marriage in the United States. In a 1996 article by Newsweek titled “Leave Marriage Alone”, author William Bennett, co-director of the conservative group Empower America, states: “I believe that marriage is not an arbitrary construct...It is an honorable estate, instituted of God, and built on moral, religious, sexual and human realities.”(1996: 27). He goes on to say that any debate on same-sex marriage is unnecessary, claiming that the fact that discussion exists around it at all simply shows “how steep our moral slide has been.” In that same month of the same year, U.S. News and World Report added to the debate of whether same-sex marriage should be legal in their Pro/Con section. In the “con” section, it is stated that “heterosexual marriage is sacred. Same-sex marriage is a violation of basic biblical tenets...American laws are written to preserve the Judeo-Christian tradition which deems homosexuality aberrant” (US News 1996). These themes of morality and religion occur with great frequency in the first half of our analysis.

Our study finds that the morality/religion arguments decrease from 57% of conservative arguments in 1996 – 2002, to only 44% of conservative arguments in 2003 – 2006. This trend since 2003 by opponents of same-sex marriage has been to move away from a religious or moral stance, as will be discussed below. What accounts for the movement away from a religious or moral framework for debate?

In a 2003 article, U.S. News & World Report reported on the Supreme Court’s decision to overturn a Texas anti-sodomy law, which essentially legalized homosexuality (Gilgoff 2003). In the same article, they reported that the Episcopal Church elected its first gay Bishop. During this same time period, decisions were pending in Massachusetts and New Jersey regarding whether same-sex marriage should be legalized. We argue that this separation of church and state around homosexuality was ripe in legal and political discourse, and that, particularly after the landmark Lawrence v. Texas win in 2003, opponents of same-sex marriage had no choice but to change the way they framed the issue. In his dissent in Lawrence v. Texas, Justice Scalia stated that the ruling “effectively decrees the end of all morals legislation” (15). This end of morals legislation in the courts is reflected in a significant decline in morals discourse in the media as well.

Conclusion

The context and conceptualization of the same-sex marriage debate affects the ways in which knowledge of gay and lesbian life is produced. When the issue is characterized as only a religious issue, it sets gay and lesbian individuals outside the realm of the courts. This line of argument restricts the definition of marriage to only heterosexual unions strictly because of biblical teachings. This framework is problematic for evangelical Christians especially as gay rights activists have gained victory in some courts, and these groups are trying to adjust their arguments. In November 2006, Newsweek reported that there is currently a war between the religious right and believers who are beginning to take a broader focus, in an article entitled “An Evangelical Identity Crisis”. In the article, an evangelical pastor from Kansas, Adam Hamilton, indicates his belief that the religious right has gone too far, adding that “I can’t see Jesus standing with signs at an anti-gay rally”. (Miller 2006) This is not to insinuate that many evangelical ministers aren’t still preaching that homosexuality is a sin, but rather that, even among their own ranks, there is an increasing move to the middle of the road on social issues such as same-sex marriage. This shift, as compared to the discourse a decade ago, seems reflective of a growing national acceptance toward homosexuals in the United States.

The driving force behind this change could be frustration at the limited number of results that the religious right has been able to gain. Beyond this, factors such as personal knowledge of someone in the gay community, which a Newsweek poll indicates has jumped from 22% of Americans in 1985 to 56% in 2000, could also play a role in this shift, as this personal connection with the gay community has been correlated with a greater acceptance of gay rights (Span and Vidal 2003). We argue, though, that a more convincing explanation for these shifts in discourse have to do with the normalizing affect that legal victories have had on the population as a whole, as reflected in journal and magazine articles of the time.

The discourse regarding same-sex marriage over the past ten years, as reflected in conservative and liberal magazines and journals, has shifted significantly. In this same time period national opinion has also shifted towards greater acceptance of homosexuality and same-sex marriage.  The impact of that the media has had on this shift in public opinion is worth examining. In his article "The Mass Media as Political Actors" Benjamin page discusses what he terms "the indirect approach that media organizations use through their publications or broadcasts to change individuals’ beliefs policy preferences". Page argues that the media outlets hold key positions as disseminators of political information. Noting that many communication theorists might disagree, Page nonetheless questions the neutrality of news outlets. Page goes on to analyze the effect that media bias may have on the public, which is particularly salient to our study. He states that "the days of minimal effects by the media are over. A large body of evidence now indicates that what appears in print or on the air has a significant impact upon how citizens think and what they think about." (Page citing McCombs and Shaw 1972; Iyengar and Kinder 1987).

Equally relevant to our study is the notion that Page discusses regarding the diversity of voices within the media outlets. He states, “Media outlets' promotion of their

own policy agendas might not matter much, for example, if those agendas were highly diverse and competed vigorously with each other, and if at least some significant media voices provided accurate information and offered interpretations that resonated well with

the values and interests of ordinary citizens. Then citizens could presumably sort out the true from the false, the useful from the useless or misleading, and come to sensible conclusions. On the other hand, however, if most or all influential media promoted the same policy views, and if those views were badly out of touch with the values and interests of ordinary citizens, public deliberation might be stifled and the citizenry misled”(Page 1996). In our study of media representation of same-sex marriage, there is a dearth of liberal viewpoints. If Page is correct in his assertion, it might follow that, as the discourse in conservative magazines shifted to a more middle of the road discourse, so too did public opinion regarding same-sex marriage.

The most prominent changes we found in the media discourse indicate a shift from discussion of religious principles, morality, and procreation to a discussion of the institution of marriage, welfare of children, and conversations around judicial activism. After conducting this analysis, we found that the language of judicial activism strengthened as same-sex marriage proponents gained victories in the courts. However, the claim that same-sex marriage has only occurred because of “activist judges” will probably wane in coming years, as the issue of same-sex marriage increasingly comes before voters as well as legislators.

In addition, those who support same-sex marriage are more likely today than in years past to focus on constitutional rights and equality. It seems that this shift away from value-laden, religiously based arguments to a more rights-based discourse, combined with public opinion shifts, indicates the arrival of a new, more progressive era of same-sex marriage legislation.

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