Fox’s Angle on the Gay Marriage Decisions

In the headlines this past Wednesday was news that the cause of Marriage Equality had scored two important Supreme Court victories: Hollingsworth v. Perry and United States v. Windsor.

On the Daily Beast’s cheat sheet, the top line of the entry about Windsor was a sober “High Court Strikes Down DOMA,” followed by: “In a historic victory for gay rights, the Supreme Court struck down the Defense of Marriage Act, the 1996 law that prevented the federal government from recognizing same-sex marriage.”

CNN.com reported “BIG WINS FOR SAME SEX MARRIAGE” and the main article was headlined “Supreme Court rulings on same-sex marriage hailed as historic victory”

On MSNBC.com’s homepage there was a story headlined: “Landmark rulings in historic day for gay rights.”

Pause a moment to note what MSNBC’s headline didn’t say.  It wasn’t “High Court Strikes Down Antiquated Discriminatory Legislation” or “SCOTUS Says Feds Can’t Arbitrarily Hate on Gay People” or “Asshole Conservatives Lose Ability to Codify Homophobia in Federal Law”

Which Brings us to Fox News.  Oh, Fox News.  Here’s the section they had on their homepage:

Do they really just never give it a rest?

Start at the bottom.  The last two bullets read:

–       OPINIONS: What SCOTUS Decisions Say About America

–       Supreme Court Issues 2 Illegitimate Decisions

In fairness, they fixed this one the next day, but I do think it’s rather interesting that they didn’t think initially to put the all-caps “OPINION” in front of a headline declaring the decisions to be “illegitimate.”

Regardless, that’s not the main point.  The main point is the top article’s link, which, as you can see, is: “GAY MARRIAGE RULING: Supreme Court Allows Same-Sex Couple Benefits.”

What they’re saying, in other words, is that the most notable aspect of these two historic Supreme Court decisions is not the declaration that our constitution guarantees equal status under federal law to state-sanctioned same-sex marriages.  Nor are they most notable for the remarkable social progress it signals when our nation’s high court refuses to uphold an act of government aimed only at codifying the fundamentally lesser status of homosexual relationships.

No, clearly not any of that.  To the people at Fox News, the most important thing about the Windsor ruling is the fact that the GUBMINT will now be giving “benefits” to THE GAYS.

The Windsor ruling is already having a profound effect on millions of gay and lesbian people across the country (here are a few examples of the widespread, deeply felt euphoria).  And no, that euphoria is not because gays and lesbians won’t have to pay the government a cut of their spouse’s estate once he or she dies.  It is because the United States government, their government, has finally acknowledged the authenticity of their love, the legitimacy of their families, and their dignity as people.  As American people.

That isn’t just rhetorical flourish.  That’s the whole damn point, which Justice Kennedy’s opinion makes abundantly clear:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statue.  It was its essence. (p 21, emphasis mine)

Then:

The house concluded that DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality’… The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for the purpose of federal law. (p 21, emphasis mine)

Just one more:

DOMA writes inequality into the entire United States code… DOMA’s principle effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principle purpose is to impose inequality (p 22)

But Fox News obviously doesn’t give a shit about all that.

To them, the headline is that before this ruling, the federal government’s estate tax exemption for spouses didn’t apply to same-sex married couples.  So, if you’re a guy who’s legally married to another guy, and that guy dies, leaving everything to you, well, you owe the federal government a cut.  If you were legally married to a woman, however, you wouldn’t.

Or, let’s say you’re a human being with a vagina and you are legally married to an American citizen who serves in the military.  Well, if your military spouse has a penis, then under federal law, you’re entitled to health & dental benefits; you may be designated your spouse’s next of kin; you can receive your spouse’s unused education benefits; and your spouse can take 10 days off in the event you give birth to a child (among other things).

Oh, wait, what was that?  The American citizen you are legally married to has a vagina instead of a penis?  Oh, ok, lemme see here… alright… spouse has a vagina… ah here it is!  You get, oh, er… well, you get nothing.  Sorry.

But not anymore!  The highest court in the Land just declared that state of affairs unconstitutional!  And Fox News would like to help you appreciate just how horrible that is!  Because, now, the government is going to have to extend all these benefits to the gays!  And, of course, as we’re all well aware, benefits constitute wasteful government largesse, which is lavished upon the takers in our society in order to create a culture of dependency that inevitably brings about Obama’s ultimate goal of a tyrannical communist state.

Ugh.

If you’ll indulge me just a bit longer, let me quickly take on the other side of this:

All I’ve done here is cite one of countless examples of this sort of behavior from Fox News.  Jon Stewart and Stephen Colbert, with their talented research teams, have made a living in large part out of compiling instances of this shit into hilarious montages.

But if we’re going to be fair, we should consider what Fox News defenders might offer in the way of rejoinder to all this ridicule.

As to this particular article I’ve been carrying on about, I expect one thing you’d hear would be that the actual dispute at issue in Windsor did, in fact, concern the allocation of federal benefits.  The specifics of the case involved whether an individual, Edith Windsor, suffered an unconstitutional injury when she was required under DOMA to pay federal estate taxes on the inheritance of her lawful wife’s estate.

I want to look at this more in another post, but basically this has to do with the way we determine who gets to sue in federal court and who doesn’t—who has “standing” to bring suit.  The main thing is that we don’t allow anyone to just bring abstract questions before the court because we’d like to get an authoritative decision on them.  You can’t just ask the court to hear arguments and evaluate whether a law is constitutional because your gut feeling is that it’s not, or because you’re curious about what they’ll say.  Standing to bring suit requires that “First, the plaintiff must have suffered an ‘injury in fact’…which is (a) concrete and particularized, and (b) ‘actual or imminent’… [and] Second, there must be a causal connection between the injury and the conduct complained of” (Decision in Windsor, p 7, quoting Lujan, supra, at 560-561, omitting footnote and citations)

In other words, anyone can’t just go to the courts and say “hey guys, look, this whole Defense of Marriage Act thing is BULLSHIT, AMIRITE?  So let’s please get you all to declare it unconstitutional, mmmk?” 

Instead, you have to have an individual demonstrate that he or she has been injured, and that individual must come before the court with a concrete, particularized, and redressable grievance.  So while the effect of the Windsor decision is, ultimately, to strike down DOMA, that macro result arises only because it is the court’s only means of redressing the legitimate constitutional injury in this micro circumstance.

All of which is just to say that, very strictly speaking, the Fox News headline is accurate.  This was a case about the application of a particular “benefit” of federally-recognized marriage—namely, spousal exemption from the federal estate tax.  And the Supreme Court did indeed “allow” same-sex married couples to receive those “benefits.”  But given the language in Kennedy’s opinion, the reaction of people—both supporters and opponents—to the decision, and, well, common sense, this is a great example of how Fox News distorts reality in the interest of advancing an agenda.