Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.
This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its society pages for the purpose of announcing their commitment ceremony. Part II identifies the interests at stake in the debate over whether same-sex union announcements should appear in local newspapers. The public recognition that accrues through such announcements is a necessary constituent of any healthy and enduring romantic relationship, and its denial exposes gay couples to an increased risk of dissolution.
The present examination restricts its attention to those legal environments offering a public accommodations law that encompasses protections for sexual orientation. With that restriction, the first issue becomes whether or not that particular newspaper falls within the scope of a "public accommodation" as locally defined, the focus of Part III. If the newspaper is not a public accommodation, the charge is presumably resolved in favor of the newspaper because the basis for the complaint does not reach to that institution.
But if that newspaper is indeed found to be a public accommodation, proper resolution of the dispute would then focus on the kind of speech embodied in a society announcement. If announcements are not "news," then one kind of analysis is appropriate; if they rise to the level of protected "news," a different strategy is required. The issues in each of these approaches are parsed in Part IV. Against this background, the defense actually mustered by the Times-Picayune is briefly outlined in Part V.
Donovan, James M., "Same-Sex Union Announcements: Precis on a Not so Picayune Matter" (2003). Law Faculty Scholarly Articles. 460.