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LAT, SF Chron shine in latest on Prop. 8

By Mark Obbie

When California Attorney General Jerry Brown yesterday changed his legal position in the Proposition 8 case, he threw journalists a challenge: Could they explain this latest twist in more than just raw political terms?The political story is obvious: Which side are you on? No matter what legal basis the AG provides for his position, it's clear that he has thrown his support to the anti-Prop. 8 side. If news stories were only about the politics, they would focus exclusively on who's come out for or against same-sex marriage. In that horse race, all eyes are on the outcome of the next phase of the battle, when the state Supreme Court decides whether to side with gay rights supporters by throwing out the ballot initiative.If that were the focus of today's stories, I would call that a travesty -- a journalistic failure to explain the substance of the legal arguments. Fortunately, some of the first-day stories on Brown's announcement are much better than that. Some of the leading news organizations covering the battle tried hard to go beyond the horse race to explain the rule-of-law angle: what both sides argue, based on their interpretations of specific laws. The best reports that I saw among mainstream news reports were by the fonta href=http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/12/19/MN6514RNVU.DTLamp;type=politics target=_blankspan style=font-style: italic;San Francisco Chronicle/span's Bob Egelko/a/font and the fonta href=http://www.latimes.com/news/local/la-me-gay-marriage20-2008dec20,0,3628665.story target=_blankspan style=font-style: italic;LA Times/span' Jessica Garrison and Maura Dolan/a/font. Egelko did a slightly better job of explaining the arguments in plain English, and of giving both sides in the battle a fair hearing. Garrison and Dolan, meanwhile, dug a little deeper into the substantive arguments, although they relied a bit too heavily on multiple direct quotes rather than simpler journalese. In both cases, though, the reporters resisted the natural impulse to dumb their stories down to a mere tug-of-war. br style=font-style: italic;fonta href=http://www.nytimes.com/2008/12/20/us/politics/20marriage.html?partner=permalinkamp;exprod=permalink target=_blankspan style=font-style: italic;The New York Times/span' Jesse McKinley/a/font and fonta href=http://edition.cnn.com/2008/US/12/19/california.proposition/?iref=mpstoryview target=_blankthis CNN report/a/font (no byline) did a fairly good job, though in less depth than the span style=font-style: italic;LAT/span and span style=font-style: italic;Chron/span stories. Less impressive was fonta href=http://www.chron.com/disp/story.mpl/ap/nation/6174719.html target=_blankthis AP dispatch by Lisa Leff/a/font, the most complete AP story I could find. It's mostly reaction quotes, after an overly brief explanation of what just happened.I judge the stories based on how clearly they explain Brown's new argument, laid out in a lengthy brief filed with the Supreme Court, and the opposition's argument by lead lawyer Kenneth Starr. I'll let Egelko summarize:div style=margin-left: 40px;Brown, who is required to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.But in a lengthy filing late Friday, he argued that the constitutional amendment was inconsistent with the guarantees of individual liberty in California's governing charter.Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification, Brown said.The authors of the state Constitution, he said, did not intend to put a group's right to enjoy liberty to a popular vote. /divWhere does Brown base that argument? Egelko doesn't explain, which is a significant weakness. Garrison and Dolan get a little closer to that question, examining what they call Brown's novel legal argument. Partisans will no doubt have strong views about whether Brown simply invented this constitutional requirement. But at least the reporters are trying, within tight time and space constraints, to explain. Here's Egelko's summary of the other side and of what got us to this point:div style=margin-left: 40px;Prop. 8 does not broadly seek to diminish or eliminate the constitutional or civil rights of gays and lesbians, but is simply about restoring and maintaining the traditional definition of marriage, Starr said. Decades of legal precedents, he said, require judges - as servants of the people - to bow to the will of those whom they serve.The court ruled 4-3 on May 15 that California's ban on same-sex marriage violated the constitutional rights of gays and lesbians to marry the partner of their choice and discriminated on the basis of sexual orientation. Prop. 8 amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is valid or recognized in California. /divThere's more in his report, and in others', on what both sides had to say yesterday. Undoubtedly there are much deeper analyses elsewhere. But I'd say that the reports relied on by the public that matters most -- Californians -- avoided the easy route. They tried, instead, to give neutral, substantive attention to news of great importance, both in terms of public policy and as a lesson in civics at the intersection of law and politics

Full post as published by Lawbeat on December 20, 2008 (boomark / email).