Same-sex marriage and the First Amendment

I’ve never really thought of the gay marriage legality debate as a First Amendment issue, but one couple (Kristoffer Bonilla and John Wray) in Louisiana is suing because of being denied a marriage license, using the First Amendment to support their argument. An article on FirstAmendmentCenter.org details their claim: “the state’s marriage amendment violates the First Amendment ‘by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself.’” The marriage amendment that the couple speaks of is a 1994 amendment to the Louisiana marriage law that bans gay marriages/unions, summarized here.

            Let’s review the exact words of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Two of the clauses could possibly be used here in an argument for same-sex marriage: no law to establish a religion/ prevent free exercise of, and no law to abridge freedom of speech. The religion argument is the one the couple brings up. The majority of religions promote marriage as that of a man and a woman. By the government also sharing this view on marriage, it can be argued that the law of the land is based off of religious doctrine. In turn, it could be said that the Government is establishing a religion. But to establish a religion would it not have to be just that: a favoring of one religion? Many religions share the belief that a marriage is meant for a man and a woman, so the US government is not favoring, say, Christianity over Judaism. However, perhaps by not establishing a religion, the Government is, in fact, establishing one: religion in general (if this is possible). It is indeed the religious viewpoint that marriages are meant for a man and a woman, but does that mean the government needs to uphold that value? In today’s world it seems marriage is not just to settle down and have kids anymore; marriage could be for everything from simple happiness to tax breaks to ways to get back home from a military assignment overseas (I have a friend who attempted this, and long story short, she is annulled, because the military would not let her come home).

Today, marriage can be as casual or as formal as wanted, and perhaps the Government needs to realize that. It does not say anywhere in the Constitution that gays cannot marry, and so perhaps the Government is leaning to religion to handle this issue. The Government is supposed to also work for the needs of its people, and with the rising population of gays and lesbians, perhaps it should legalize same-sex marriage: that is, any gay or lesbian could go to the courthouse and say their vows and receive their license (a civil form of marriage). The Government could then leave the religious side up to each denomination and divisions: if a church wants to recognize same-sex marriage, and hold ceremonies, it may, if a division or denomination is against it, they should not be held accountable to bless the marriage. If couples are going to live together, and do everything a married couple would, regardless of what the law says, why not just let them get married? There is the whole issue with ‘sanctity of marriage,’ that if we draw a line between civil and religious marriage, then the government does not have to deal with this ‘sanctity.’ An older article from 2004 states, “President Bush acknowledged this in March when he promised the National Association of Evangelicals that he would ‘defend the sanctity of marriage.’ According to this same article, “Civil marriage and religious marriage are two different things. State governments decide what constitutes civil marriage, and what state benefits such marriages receive. These decisions are supposed to be based on articulation of strong state or societal interests, and not on religious grounds.” Marriage as a union between a man and a woman, he declared, is ‘honored and encouraged in cultures and by every religious faith.’” But four days after he said that, two Unitarian ministers were convicted for holding a same-sex marriage, so not every religious faith agrees upon the ‘sanctity’ of marriage.

            According to that same 1994 from FirstAmendmentCenter.org, “if defending the ‘sanctity of marriage’ is the issue, then the establishment clause of the First Amendment should prohibit the government from taking sides.” For some religions, gay-marriage is accepted; marriages are held in these churches and recognized as legitimate. So, for a gay couple who is a part of one of these churches, for instance, the Evangelical Church, who wishes to get married, their church would bless it, but the state and federal law prevents them from partaking in this rite. This could be a violation of the “…free exercise thereof…” clause of the First Amendment. The couple would not be able to participate in a marriage that their religion would allow for hetero- or homosexual couples. Thus, they cannot freely exercise their religion (get married) like a heterosexual couple could.

            Not allowing gays to marry could also be seen as viewpoint discrimination, because not all religions reject gay marriage. For the Government to choose that gay marriage is illegal, this would be siding with those religions that do not accept gay marriage. The Louisiana couple includes this in their lawsuit (according to this article): “By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the state has necessarily established a wholly religious civil institution.” But then, if the Government decides to make same-sex marriage legal, would that not also be viewpoint regulation: siding with the churches that bless same-sex marriages? This is why the Government should make a distinction between civil marriage and religious marriage.

With regards to freedom of speech, it will be interesting to see how this case unfolds: if not allowing homosexuals to marry is indeed a First Amendment violation. While reading these articles, I kept asking myself if marriage is really considered a form of speech. It is for sure an expression; a statement of love and commitment, and whatever else the bridegroom desires to express in their vows, but I would say it is more an action than speech. I can say, “I am married to X,” but unless I have professed this in a ceremony, be it in a religious setting or a courthouse, and hold a marriage license confirming that we are indeed married, we are not. “To marry” is a verb—it is something you do—not just something you say. Thus, there is a difference between saying “I’m married,” and being married. The phrase “I’m married” is meaningless without a marriage license. So, in this sense, marriage is not speech. However, if we are stopping a couple from being able to say they are married, because we are not allowing them to marry…can that be silencing speech? I don’t think that particular argument is valid; I could say “I am President of the US,” but that has no meaning, because I am not president. The Government says I cannot be present at this time, if nothing else because I do not meet the age requirement. So is the government silencing my speech of being able to say “I am President,” because it is against the law for me to be so? I think that is taking the First Amendment too far (Sorry for the long, confusing example). Marriage might be symbolic speech, for a way to say “I love you,” or “I adore you,” but I do not think marriage itself is speech in that if you cannot get married, the person/institution stopping you is blocking your free speech. But, I am not a Justice, and it would be interesting to see what the court’s take on this example would be.

Speaking of the courts, two important cases are Varnum v Brien and Baker v Nelson. Varnum v Brien regarded six gay couples seeking marriage licenses in Iowa, against Timothy Brien, Polk County Recorder, who denied them the said licenses. On April 3, 2009, the case was decided: that same sex marriage will be legal in the state of Iowa. In the case, it was said that “the long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently.” It seems that gays are fighting a similar war to that of African Americans and the Civil Rights Movement. While the two might not be completely comparable, both are/were being denied essential human rights; being able to get married is a basic right, (and perhaps, need) and there are tax and insurance savings (among other benefits) that go along with it. Gays face much discrimination in everyday life. In Varnum JUSTICE says “Iowa Code Section 595.2 is unconstitutional because the country has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage.” There is nothing in the constitution against gay marriage.

But, other courts seem to think there is. Baker v Nelson is one of the fundamental cases that courts refer to when they do not want to legalize gay marriage. Here we have another gay couple, Richard Baker and James McConnell, being denied a marriage license. In this case, after the court denied them, they went to another county and somehow received a license (which the Government will not recognize). In Baker, they said that the “Minnesota limiting of same sex marriage does not offend the First…Amendment.” This case was rationalized a lot by  “common knowledge;” that marriage is commonly accepted as that between a man and a woman.” Justice Warren cites Loving v Virginia, which deals with racial marriage discrimination: “To deny this fundamental freedom on so unsupportable a basis as racial classifications in the 14^th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination between a martial restriction.” The court also says there is a “clear distinction in commonsense and in a constitutional based upon the fundamental difference in sex.” They basically argue that marriage has never been thought of as anything besides that of a man and a woman, and never should be, with the exception of Justice Peterson, when he says, “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.”

So friends, what do you think? While same sex marriage arguments do not surround solely the First Amendment, there are First Amendment implications that the court needs to address. I do believe that someday same-sex marriage will be legal everywhere, as least in regards to civil marriage; it is bound to happen. There are too many constitutional and civil rights arguments for it not to be legalized. Then it should be left up to individual religions to recognize same-sex marriage if they wish. In the words of Bob Dylan, “the times, they are a changin.’”

Animal Rights v The First Amendment

Should animals be granted some of the same rights as humans? Well, we’re about to find out. Today (April 21) the Supreme Court agreed to consider if depicting animal cruelty merits First Amendment protection. I was reading about this here, and it sparked my curiosity, because I am amazed at how much protection we give animals in general. Competing with the advertisements to donate money to feed children in third world countries, we see ads to donate money to save dogs, cats, and other animals. Animals might have a huge place in our society, but I do not think that overall they should have the same rights as humans: I do not believe that there should be a new category of exceptions to the First Amendment regarding depicting animal cruelty; I think other exceptions should have priority. In Chaplinsky we learned that “there are certain well-defined and narrowly limited cases of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (Course Packet). However, I do not feel animal rights should be involved in this human, First Amendment right. That being said, I am not advocating harm to animals, I just feel that a law preventing this could go ‘too far.’

One of the main arguments for not protecting this speech is to parallel depicting cruelty to animals to child pornography. This goes a little too far. In United States v Stevens (more on this case later), the court said this regulation of animal cruelty is not “of the same magnitude as protecting children,” in part because there is not continuing harm to the animals involved—in contrast to the lasting harm to the children used in child pornography.” Another website says, “While animals are sentient creatures worthy of human kindness and care, one cannot seriously contend that the animals themselves are continuing harm by having their images out in the marketplace.” Also, child pornography can be considered obscene, according to the obscenity test found in Miller v California: “the dominant theme of the material taken as a whole appeals to a prurient interest in sex, the material is patently offensive…and the material is utterly without redeeming social value” (Course Packet). Animal cruelty does not necessarily deal with sexual matter, so it cannot be obscene, thus it does not fall under the category of obscenity that the First Amendment does not protect.

One of the most relevant cases that deals with animal cruelty is United States v. Stevens. Robert Stevens sold vintage videos depicting dogfighting (the act of dogfighting is illegal in all states). In 1999, President Clinton passed a law, regarding depicting animal cruelty (thought this was mostly in regards to "crushing" women in high heels crushing small animals for a sexual fetish). The law states, “whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than five years, or both.” Under this law, in 2005, Stevens was charged with three counts of knowingly selling depictions of animal cruelty. In 2008, Stevens argued that this 1999 law violated his First Amendment rights. He went back to court, and won- the 3^rd U.S. Court Circuit of Appeals agreed that this law was an unconstitutional infringement on freedom of speech. Today, the Supreme Court has agreed to revisit this law (not this case), to determine if depictions of animal cruelty should again be illegal and not protected by the First Amendment.

If the Supreme Court makes depicting animal cruelty illegal, this means you could no longer view on television (or anywhere public) the acts of bullfighting, fishing, or hunting, as these cause harm to animals. Out the window goes “Deadliest Catch”. And what about fishing tournaments? It would be sad to see them go. The law put in place by Clinton does not include in its definition of animal cruelty that it must involve a human. If a human does not have to be involved, does that mean that depicting animal on animal violence would be illegal? That would rid TV of many Animal Planet shows; often times you will see a cheetah killing its prey, or a pack of lions dining on a wildebeest. These examples depict cruelty/killing of animals to other animals. Additionally, what about cruelty of animals towards humans? That’s still animal-involved cruelty. Gone would be the documentaries of snake charmers, who end up getting bit by the snake. What about alligator or shark bites? Or the miscellaneous dog bites as seen on “America’s Funniest Home Videos?” Those animals are being somewhat cruel—they are wounding humans, and wounding is included in the 1999 law regarding depicting animal cruelty. Then, what about video games depicting animal/ human violence? Video games have not been regulated, because there have been no substantive evidence linking human violence with violent video games. However, if this law passes, depictions of human/animal violence in video games would no longer be legal. That means Mario (essentially a human) will have to leave those Koopa Troopas (which are essentially turtles) alone.

Finally, a law against depicting animal cruelty must not be held to a double standard. Right now you see programs on Animal Planet showing dogs being abused before they are rescued and taken to a better home. This is displaying animal cruelty. Although it is not endorsing it, it is being used to make money for the Animal Planet through supporters and viewers. One of Stevens’ arguments against the animal cruelty law he was being punished for was that it “amounted to unconstitutional viewpoint discrimination, because the same footage he was prosecuted for using could be used legally by dogfight prosecutors, educators, and historians” (http://www.firstamendmentcenter.org/analysis.aspx?id=21505). In my opinion, this is a major trump card that lead to him winning his appeal. Viewpoint discrimination is, under my understanding, unconstitutional, except in some circumstances that involve Government speech and Government money. It is not fair for animal rights activists to be able to use horrifying animal cruelty images, and not the other side (as wrong as that may seem).

My prediction? The reconsideration of this law will not pass, for reasons that I have discussed. But I may be wrong.

TV's Believe it or Not!

Remember when you were little, and you saw an ad on TV, perhaps on Nickelodeon, that looked really neat and you just had to have it? Was it a pair of Moon Shoes or a stuffed dog that really walked? I will never forget when I first understood how commercials “really work.” When I was about 4, I saw this Barbie advertised, who could dance and move like no previous Barbie—she had flexible joints. I saw the girl in the ad playing with her, and then all of a sudden, Barbie danced on her own! It was the real doll dancing with no human aid! I was so psyched I talked my parents into getting her, and I took her out of the box, and she did nothing.  I tried to make her move like she did in the ad, but with no avail. I was rather disappointed. I told my parents and others from then on to never to believe what you see on TV.

I often think too deeply into commercials, though I certainly no longer believe most of them. Does Hydroxycut really work? Well, with diet and exercise, like any other weight loss routine. Does Oxyclean really remove those red wine stains in seconds? What about those “As seen on TV” gimmicks? Does Smooth Away really remove unwanted hair magically as you wipe your legs with it? Maybe yes, maybe no. But the company certainly will make a lot of money through customers trying to answer that question.

How does this all relate to the First Amendment? Given that many ads are “false” to a certain extent, that is, “results are not typical,” or “results may vary,” and no Barbie ever (except a robot Barbie) will be able to dance on her own, should these ads be protected under the First Amendment? Do they not shed their product in a false light? According to our discussion in class, in order for false light to occur, there needs to be  “(1) publicity (2) about a false statement, representation or imputation (3) understood to be of and concerning the plaintiff and (4) which places the plaintiff in a false light that would be highly offensive to a reasonable person” (Benz v. The Washington Newspaper Publishing Company, LLC, and John F. Bisney). In commercials, there is publicity and there is a false statement or representation. However, here is a gray area: while jenny Craig might help some lose 20 pounds, for others, they will not lose the weight. While Pantene Pro V might make your hair shiny, is it going to look like the model’s hair in the ad? Probably not. So, is this false light? Jenny can help weight loss. Pantene can help your hair become more shiny, but will everyone experience the same promised results? Not typically. But, because even one person might get those results, the companies are not lying. The last two qualifications are to be concerning the plaintiff, which ads do concern their companies, and portrayal in a false light that is offensive to Mr. Reasonable. Is a reasonable person going to be offended if Dove body lotion does not make their skin glimmer like in the ad? They probably will be upset, but not offended.  So it appears, commercials are protected. Or are they?

Airborne, a product I have been using since it came out got itself into a nasty lawsuit over false advertising: David Wilson v. Airborne, Inc. You can read about it here. Basically, they advertised that their product prevented and cured the common cold, when in fact, according to medical professionals, there is no cure for the common cold. Thus, Airborne does not really do what it promises. (Personally, I still believe from experience that it does help prevent colds, and help shorten their duration, but what do I know?) Americans spent millions of dollars on this product, believing it could do something it cannot. Airborne also violated several food and drug codes, by presenting false and misleading facts. In the end, according to ABC News, because Airborne had not data to back up their “cold cure” claim, they settled the class action lawsuit with a $23.3 million refund. Money will be going back to customers with valid claims who purchased Airborne between May 2001, and November 2007. Ouch.

More recently, the Federal Trade Commission is trying to change the rules of advertisements. We have seen that many of the results shown on TV are not typical of the average person using the product without Hollywood aid. According to CommercialAlert.org,  “Advertisers that feature endorsers touting dramatic results will either have to demonstrate that consumers are “likely” to have similar success or describe in the ad what the “generally expected performance” is.” Does this mean we will be seeing more “real” people in the ads, and less models and celebrities? This is a very interesting and timely regulation that is going to prove to be very difficult for advertisers. I mean, honestly, is Chuck Norris so buff solely because of his BowFlex (does he even use one at all?!)? I don’t believe this act would infringe on advertiser’s First Amendment rights. If their product really works, then they have the right to show that. If Marie Osmond has lost and excessive amount of weight with NutriSystem, but that is not the norm, not NutriSystem will be forced to tell me what the expected performance is, not the outliers.

Those cases deal with company’s own false advertising marketing ploys. But what about when a company sheds false light on another company? In October, 2007, Alltel aired a commercial that depicted a wireless customer as a caged guinea pig. Like the pig, Alltel claimed that Verizon and other companies’ customers do not have the freedom that an Alltel customer has to make changes to their plan.  This was true when the ad first aired. But after October 7, 2007, Verizon Wireless no longer extended its customers’ contracts when they made plan changes. However, even after this date, Alltel proceeded to continue to air the same commercial. Naturally, Verizon sued. You can read more about it here. This lawsuit started in January 2008, and nothing will probably come out of it as Verizon now took over Alltel. But they probably could have won, because the Alltel ad was public, was false (in some respects), concerned the plaintiff (Verizon), and was offensive to a reasonable person. If a reasonable person owned a business, and a competitor aired a false ad about him, I believe the reasonable person would be offended.

False speech is protected, there is no doubt about it, for better or for worse. I must say, I am happy that the FTC is taking baby steps toward tighter regulation of advertising. While I do not believe that advertising will ever be 100% honest, I believe that they should try to be (yes, that is the nice roses and sunshine dream world). If I needed to lose weight, I would never buy Hydroxycut, because their ad says it is not typical, and the results shown of the model do not look typical. I would not waste my money on something that only works with diet and exercise- something I can do for ‘free’ without purchasing the weight loss pills. To a point, advertisers are hurting themselves; if a four year old can be disappointed in a Barbie doll, and learn that what is seen on commercials is not always true/real, certainly adults will not believe everything they see. Like Mom always said, Honesty is the best policy.