Same-Sex Union Announcements: Whether Newspapers Must Publish Them and Why We Should Care

This Article begins in Part I by sketching the history of interactions between newspapers and the gay community. A recurring touchstone of reality for this Article's analysis is a complaint of discrimination filed against the Times-Picayune, New Orleans's major daily newspaper. This Part recounts the background of that story, as well as newspapers' prior responses to requests to publish same-sex union

announcements on equitable terms with those offered heterosexual couples. The Article then discusses the need for equal treatment of same-sex society announcements. Part II identifies the interests at stake in the debate over whether same-sex union announcements should appear in local newspapers. It asserts that the public recognition that accrues through such announcements is a necessary constituent of any healthy and enduring romantic relationship, and that denial of public recognition exposes gay couples to an increased risk of dissolution. Part III examines claims of discriminatory exclusion that occur under a public accommodations law that protects sexual orientation asserted against a newspaper. The threshold issue is whether newspapers fall within the scope of a "public accommodation."' To date, no court has held a newspaper to be a public accommodation. Assuming this jurisprudential trend continues, claims of discriminatory exclusion presumably will be resolved in favor of the newspaper because the basis for the complaints does not reach to that institution.

However, if newspapers are indeed public accommodations, proper resolution of the discrimination dispute will focus on the kind of speech embodied in a society announcement. Part IV parses the different analytical approaches courts use to examine speech and public accommodation. Specifically, if announcements are not "news," then one kind of analysis is appropriate, but if they are "news," a different tack is required. Finally, this Article concludes in Part V that whether a newspaper can be compelled to accept and publish same-sex union announcements is a fact-intensive issue dependent upon specific local conditions, and cannot be decided universally by appeal to either the Free Press or Free Speech Clauses of the Constitution.