O'Reilly misled with gay marriage poll; distorted Mass. ruling

››› ››› GABE WILDAU

During his July 12 radio show, FOX News Channel host Bill O'Reilly suggested that American public opinion favors a constitutional amendment banning gay marriage. Yet polls indicate just the opposite. On the following day's edition of his FOX News Channel program, O'Reilly distorted the legal reasoning behind Massachusetts Supreme Court's majority opinion in Goodridge v. Department of Public Health -- the ruling that legalized gay marriage in that state -- and contradicted his guest when the guest tried to tell the truth.

On the July 12 broadcast of The Radio Factor, O'Reilly cited a poll and said that "66 percent [of Americans] are against gay marriage"; he continued, "[W]hat you have in the Senate is a third of the senators being Far Left people, who are not going to vote based upon what their constituents want, but what they think [is] going to get them reelected."

But contrary to O'Reilly's suggestion that "Far Left" Senators are thwarting the will of the people, polls show that while the public largely opposes gay marriage -- as the poll O'Reilly cited suggests -- the public also largely opposes amending the constitution in order to ban it. A survey by the Annenberg Public Policy Center of the University of Pennsylvania from late June indicates that 48 percent of Americans oppose a constitutional amendment banning gay marriage, while only 43 percent are in favor. An ABC News/Washington Post poll (pdf) from early March showed 53 percent in favor of letting states decide the question, compared with 44 percent in favor of an amendment. Other polls (NationalJournal.com subscription required) show similar results.

On the July 13 edition of FOX News Channel's The O'Reilly Factor, in a discussion with Evan Wolfson -- executive director of Freedom to Marry and author of the new book Why Marriage Matters: America, Equality, and Gay People's Right to Marry -- O'Reilly distorted the Massachusetts Supreme Court's majority opinion in Goodridge v. Department of Public Health, claiming the court had exploited a technical loophole in its zealous determination to legalize gay marriage. Wolfson corrected him, explaining that, on the contrary, the court had struck down the gay marriage ban based on substantive provisions of the Massachusetts Constitution:

O'REILLY: Does it bother you at all, Mr. Wolfson, as an American citizen that in the state of Massachusetts, the activist judges there found a loophole. [...] In Massachusetts, they ruled that gay marriage was legal because the Supreme Court there found a loophole which said the legislature did not define marriage between a man and a woman.

WOLFSON: No, no, that's not correct.

O'REILLY: Yes, it is.

WOLFSON: No, please, it isn't. That is my area of expertise, and what they did say was that the constitution requires that when government discriminates, it has to show a reason. And they looked at all the reasons that the state put forward. And they found that not one stood up. The government is not able to show a reason. And...

O'REILLY: Yes. Yes, that may be your interpretation, but the ruling came down -- I think it was four to three ... that gay marriage was OK because the legislature in the Commonwealth did not specifically ban it.

WOLFSON: No...

O'REILLY: That's the fact.

WOLFSON: Well, no, that's not the fact.

Nothing resembling O'Reilly's description of the ruling actually appears in the court's decision. The accompanying synopsis by the court's "Reporter of Decisions" matches Wolfson's "interpretation" exactly:

[T]he court observed that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." ... The Commonwealth, the court ruled, "has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples."

Contrary to O'Reilly's claim that the court's majority based its decision on the Massachusetts legislature's failure to "define marriage between a man and a woman," the court explicitly rejected the state's argument that the legislature's own definition of marriage superseded the authority of the court:

It has been argued that, due to the State's strong interest in the institution of marriage as a stabilizing social structure, only the Legislature can control and define its boundaries. ... These arguments miss the point.

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