State of the states on same-sex marriage: New York Times actually gets some things right


We at GetReligion just might be getting a bit soft. Witness the reactions to a New York Times roundup on the same-sex marriage front.

From tmatt: "NYTIMES talks to some conservatives and old liberals in SSM story!"

Bobby Ross Jr. read the Times story, then noted the phrase "so-called conscience protection bill."

Tmatt again: "Small steps! I didn't say it was perfect. But it does seem -- gasp -- that they actually talked to a few people on the moral right."

But I'm the one with the scalpel on this. So let's dissect.

Overall, it's an excellent survey on the campaign to make same-sex marriage the law of the land.  But rather than a mere power struggle between two interest groups -- religious conservatives and gay activists -- the story appears to frame it as a vintage clash of gay rights versus religious beliefs.  

This starts right in the lede:

ATLANTA — As it looks increasingly likely that the Supreme Court will establish a nationwide right to same-sex marriage later this year, state legislatures across the country are taking up bills that would make it easier for businesses and individuals to opt out of serving gay couples on religious grounds.

Not a promising lede for someone who hoped for even-handed coverage. But this article is worth your patience.

The sweeping story bears down on the battles in Arizona, Oklahoma, Arkansas and Georgia, and mentions issues in eight other states more briefly. It points out the wide support in various states for freedom-of-conscience laws, even calling the support "overwhelming" in Arkansas.

And, as tmatt said with almost tearful gratitude, the Times quotes actual conservatives -- and without obvious taint or caricature. Among those are Baptist leader Russell Moore, increasingly the go-to conservative for mainstream media.

But Moore is quoted respectfully, saying that religious-freedom bills are needed to address the "increasing religious pluralism in American culture. In recent years, I think more people are aware of the need to explicitly and clearly protect religious liberty."

The article also offers some nuance. It notes that when religious conservatives oppose gay laws, their reasons differ: one based on religious conviction, the other on freedom of conscience. Interestingly, the latter is the stance of a state legislator who's also identified as a pastor.

And here's a switch in language. The article says that "powerful business interests" helped kill a conscience bill in Georgia last year, and that "a portion of the state’s elite" is fighting two similar bills this year. In political stories like this one, "powerful" and "elite" are used mainly to label conservatives.

The Times acknowledges that the state laws and bills borrow federal legal language, in saying that the government may not "burden" the practice of religion unless it has a "compelling interest," and uses the "least restrictive means." Then the newspaper says where they got those terms:

Their model is the federal Religious Freedom Restoration Act, or R.F.R.A., which was signed into law in 1993 by President Bill Clinton, and which enjoyed overwhelming support from both liberal and conservative members of Congress.
The act was an effort to restore the rights of religious practitioners that had been curtailed by the Supreme Court’s 1990 decision in the case Employment Division v. Smith. In that case, the court upheld Oregon’s denial of unemployment benefits to employees fired for using peyote in a religious ritual.
In 1997, however, a Supreme Court ruling effectively limited the law’s application to the federal government. In response, a number of states began passing and putting together their own laws similar to the Religious Freedom Restoration Act. Today, the laws exist in 19 states, and courts in a number of other states apply the act’s legal standards in determining relevant cases.

All that is valuable background, and it's not often provided.

I also admire how two prof types are quoted. One says the state RFRA laws "don’t guarantee the result," they just allow someone to challenge whether the government has a compelling interest to limit a religious freedom. The other professor cites state religious freedom laws that defended a native American and a Santeria congregation. Neither expert is painted as a hard-nosed conservative.

But the Times, they aren’t a-changing that fast. Here's the paragraph that caught Bobby's eye, and his ire:

In Arkansas, a so-called conscience protection bill was scuttled in the Judiciary Committee of the State Senate on Feb. 25, a day after the homegrown retail giant Walmart released a statement arguing that the bill would send “the wrong message about Arkansas, as well as the diverse environment which exists in the state.”

And he's right. "So-called" is a thin veil for the more common scare quotes, as if the Times had written, "In Arkansas, a 'conscience protection bill' was scuttled ..." Either way, it suggests sarcasm, a contempt for that viewpoint. Still I have to give the Times a point for the follow-up paragraph, which notes that the state House overwhelmingly approved.

The story has other problems. "Conservative" and "conservatives" appear three times, "liberal" only once. And the Human Rights Campaign is cited three times without identifying it as liberal or pro-gay.

The newspaper also quotes a former Georgia governor who opposes a religious-freedom bill, but doesn't quote anyone who favors it. This despite the fact that the bill passed the state senate by more than a two-to-one margin.

For all its 1,300-word length, the Times story has its weak spots. One is a quote by the legal director of the Human Rights Campaign that the group "fully supported the idea of protecting religious rights." How? Doesn't say.

The story also says that lawmakers in Texas as considering a constitutional amendment "that would make it even easier for religious people who feel aggrieved by government policy to win their cases in court." Again, it doesn't say how.

Still another matter is hinted, rather than spelled out. Early in the article, the Times quotes State Senator Joseph Silk of Oklahoma: "The L.G.B.T. movement is the main thing, the primary thing that’s going to be challenging religious liberties and the freedom to live out religious convictions."

Later, the story says that "some lawmakers have said their aim is to protect wedding planners and other businesses who might wish to refuse service to a same-sex couple on religious grounds."

We'll leave aside the fact that the Times doesn't directly quote any lawmaker saying what it claims many of them have said. Taken together, the two statements mean that the sides don’t even agree on what the new state laws are about.

Gay activists say the laws are aimed at them, and they spin the conflict as a new crusade for civil rights. Religious conservatives say they are merely armoring their rights against a secular gay jihad against them.

To recap, then: Excellent survey of state laws on religious freedom, and the pushback against them; lengthy and respectful quoting of conservative sources; occasional relapses on characterizing conservatives; blurring of the sides' viewpoints on state legislation. Bottom line: B or B-minus.

But maybe I'm just getting a bit soft.

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