Fact-checking claims about same-sex marriage

The fight over same-sex marriage will be in the spotlight again this week when the U.S. Supreme Court hears oral arguments Tuesday.

The court will hear arguments that pertain to two questions: whether the Constitution’s 14th Amendment, which guarantees due process and equal protection, compels states to recognize same-sex marriages and whether states must recognize such marriages performed in other states.

Kentucky, Michigan, Ohio and Tennessee will defend their bans before the Supreme Court. Currently 36 states and the District of Columbia allow same-sex marriage including Florida, although a challenge is underway in the 11th Circuit Court.

The outcome of the decision, expected by June, could mean either that same-sex marriage will become legal in all states or that some states will institute new bans on same-sex marriage.

We have fact-checked claims related to previous court rulings, the cost to couples who can’t marry and a proposal in Texas to strip salaries from clerks who issue same-sex marriage licenses.  We’ve also looked at the views of President Barack Obama; U.S. Sen. Marco Rubio, R-Fla.; former Florida Gov. Jeb Bush, and Wisconsin Gov. Scott Walker.  

Here is our primer to some of our fact-checks about same-sex marriage (and here are all of our fact-checks related to gays and lesbians):

What the courts have already said

David Boies, a Democratic attorney, and Ted Olson, a Republican attorney, teamed up to overturn California’s Proposition 8 to ban gay marriage. We have fact-checked claims by both attorneys.

Olson said in January that the Supreme Court "15 times over the last 120 years has said that ‘marriage is a fundamental right" and "never once in any of those cases did it say that it had to be between a man and a woman."

Olson provided a list of 15 cases that addressed marriage as something like a "fundamental right" that did not specify marriage as a union between a man and woman. Several experts backed up his claim. Until recent years, though, the Supreme Court never had to address the question of whether or not marriage should be limited to a man and woman. We rated this claim True.

Boies said in 2014 that since June 2013, every one of more than 30 federal judges who have considered gay and lesbian rights "has ruled that marriage is a constitutional right and you cannot deprive individual citizens of that right based on their sexual orientation."

District judges have almost uniformly ruled for gay-marriage plaintiffs in this timeframe, but Boies’ count of such judges as of April 2014 was considerably off. We identified nine federal district judges who have issued such rulings by that point. PolitiFact Texas rated this claim Mostly False.

Obama’s position

President Obama now supports gay marriage, but he hasn’t always. He changed position to favor it in 2012, telling journalist Robin Roberts, "At a certain point, I've just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married."

We tracked Obama’s evolution over the years in what he had to say on the issues of gay rights and gay marriage. Since he definitely changed position, we rated that a Full Flop on our Flip-O-Meter. (The meter is not intended to pass judgment on politicians’ decisions to change their minds. It’s just gauging whether they did.)

GOP presidential contenders

The Democratic National Committee said in December that Jeb Bush "not only opposes marriage equality, he’s said he ‘personally’ believes gay couples should be banned from adopting children."

While Florida governor, Bush repeatedly said that he opposed gay marriage, although he was reluctant at times to amend the state Constitution since gay marriage was already banned in state law. Since leaving office, Bush said that he supports "traditional marriage," though he has used a softer tone when asked about it. We rated the DNC’s statement Mostly True.

We also looked at U.S. Sen. Marco Rubio’s statements about same-sex marriage. Rubio has opposed same-sex marriage but also says that he supports the rights of states to set their own course. We looked into a dispute about whether Rubio ever supported amending the U.S. Constitution to ban marriage; we concluded there was little evidence to show he wanted an amendment.

PolitiFact Wisconsin looked at Walker’s statements about same-sex marriage. In 2006, Walker supported a state constitutional amendment defining marriage as only between one man and one woman -- a position he repeated in the 2010 governor’s race. But in May 2014, when the ban was before a federal court, Walker made some comments in which he declined to directly support the ban’s legality.

Religious Freedom Restoration Act

Likely presidential candidates have reacted to Indiana’s controversial Religious Freedom Restoration Act, which critics feared would allow wedding vendors to deny service to gays and lesbians.

Bush said that "Florida has a law like this. Bill Clinton signed a law like this at the federal level. This is simply allowing people of faith space to be able to express their beliefs, to be able to be people of conscience. I just think once the facts are established, people aren’t going to see this as discriminatory at all."

Florida did pass its own version of the 1993 federal Religious Freedom Restoration Act. But the laws and the context for their passage are different. Indiana’s law says government doesn’t have to be a party to the case, and it extends protections to corporations, and that’s different from Florida’s law. We rated Bush’s claim Half True.

Walker said that Bill Clinton signed a law "very similar to," and Barack Obama voted for a law "something like," Indiana's RFRA.

The three laws share the same title and much of the same language, but Indiana’s law has at least two significant provisions that the other two laws don’t. Moreover, the federal and Illinois laws were passed with the intent to protect various religious practices from government intervention. We rated this claim Half True.

Flip Flops, DOJ and a Fox News photo

Many politicians have flip-flopped in support same-sex marriage, which we documented on our Flip-O-Meter. In addition to Obama’s Full Flop in 2012, former Florida Gov. Charlie Crist and Atlanta Mayor Kasim Reed both got full flops in 2013.

In 2013, Rep. Louie Gohmert, R-Texas, said a Justice Department memo "directs that you must openly embrace gay marriage and homosexuality."

The department promotes diversity. But there didn't appear to be a department memo or mandate that employees openly support gay marriage or homosexuality. That said, a subset of workers received a brochure from an agency-sanctioned employee group encouraging managers to respect and support gay workers. PolitiFact Texas rated this claim Mostly False.

A Facebook meme said that "Fox News uses photo of a married couple promoting ‘traditional marriage’ and the photo is actually of a same-sex couple." Yep, the photo is of two women -- one in a bridal gown and the other, a short-haired woman in a suit -- kissing. Fox later pulled the photo. PunditFact rated this claim True. (See the photo.)

Hear a claim about same-sex marriage or other topics worthy of a fact-check? #PolitiFactThis or [email protected]