By Michael Miner
Strife After Death
A year ago the distraught family of Nancy Jean Marback tried to announce her death in the Chicago Tribune. But the Tribune objected to the language the family submitted. Instead of "Timothy (Steven)" to identify a surviving son, the Tribune suggested either "Timothy (Life Partner Steven)" or "Timothy (Companion Steven)." The anguished family withdrew the death notice, and Tim Marback turned to the Chicago Commission on Human Relations for justice.
"The refusal of the Chicago Tribune to print the notice caused me and my family additional grief and humiliation," asserted the complaint filed by Timothy Marback. "I am seeking all relief available under the law."
The case is still pending, the file is fat, and a hearing is scheduled for March 3. Last October the Tribune changed the policy that had guided it in January, tacitly acknowledging that Nancy Jean Marback's death notice might have been handled better. But in its briefs the Tribune argues in effect that the First Amendment gives it the right to be wrong. It maintains that the Chicago Human Rights Ordinance doesn't apply in this case and that any harm Marback suffered was self-imposed.
"She was a single mom who raised four kids all by herself," Marback tells me. "She had just turned 60. Her birthday was December 22, and we all sent her to Hawaii. She got back, and she hadn't even unpacked when she had a massive heart attack. We had no other parent but my mom. That horrible day we're picking up her coffin--to get that call that day to say she's not going to get a decent death notice, which we consider a basic human decency, to find out a child molester could get a death notice so long as he didn't have an openly gay son! This was about two male names. This was about a parenthesis. It's like that Rosa Parks scene where it was about a stupid bus seat and people said, 'How stupid is this going to get!' This was about a parenthesis! For her to be denied a death notice because I will not be a second-class citizen--that's what it was. Nancy Marback did not raise me to be a second-class citizen!"
Marback considers Steven Hillyer not merely his "partner"--except in the sense that they run a film production company together in New York--but his husband. "You're sitting there thinking, who has to be put in there?" says Carolyn DeVivo, the family friend who wrote the death notice. "And when it came down to brothers and sisters I put in each of their spouses after them. We've always acknowledged Steve as his spouse. I didn't think twice about it."
She remembers the family sitting around Nancy Marback's kitchen table when the Tribune called back. Bill Marback, who's an attorney, answered the phone. "They asked him who Lee was, and I heard him say, 'Oh, he's my brother Bob's wife.' And they asked who Steven was. 'Oh, he's my brother Tim's husband.'"
And then Bill Marback said, "What do you mean you can't print anything like that? What's the difference?" And then he said, "Well, fine, forget it. We don't need to put it in your newspaper."
Bill Marback told the family that the Tribune had said the paper couldn't print the death notice the way it was written because it was afraid of losing readers. This made no sense to the Marbacks. Who would read it but the family friends the Marbacks were buying space to inform? Those friends knew all about Tim and Steve.
The paper hadn't asked for proof that anyone was married to anyone else, and it took the family's word for it that Lee was a woman. If the Marbacks had simply said Steve was a girl too--"Like Stevie Nicks, right?" says DeVivo--there'd have been no problem. Because the family told the truth, the paper put up a fuss. "We couldn't believe at such a devastating time that's what the issue was," says DeVivo.
A year later Timothy Marback can't speak about the subject without anguish. "As we approach the millennium this cannot go on," he vows. "This was my mom's death notice. If this had happened to me, my mom would go to the ends of the earth to make sure my rights were respected. And I can do no less."
Steven Hillyer adds, "They did change their policy, but they made no admission of wrongdoing. They never apologized for what they did to Tim."
Timothy Marback: "Do I have a First Amendment right? Whose First Amendment right is greater? This wasn't some political message we were trying to make about same-sex marriages. It was a death notice. Who was it going to harm? Nobody!"
The notice of Nancy Marback's death appeared as written in the Sun-Times.
"The Tribune did not 'refuse' to publish Marback's death notice," argued a memorandum submitted last month with the paper's motion to dismiss the case. (A hearing officer hasn't yet ruled on the motion.) "It informed him of the Tribune's policy--parentheticals are used only for legal spouses of survivors--but offered to run the notice with a modification that would accurately reflect Marback's relationship with Steven....The Tribune cannot constitutionally be compelled to adopt Marback's specific characterization of his relationship with Steven." A privately owned newspaper, the memorandum went on, has the right to say no to advertising. "The Tribune's editorial position on same-sex marriage might agree with Marback's; it might not. One thing is clear. Marback cannot invoke the power of the state to, in essence, force the Tribune to adopt his agenda. That is the thrust of his complaint and it is unconstitutional."
Marback is represented by the People's Law Office, a group of activist lawyers best known for their long, uphill battles against the Chicago Police Department, in the Jon Burge case in particular. Inevitably the PLO and the Tribune, represented by Sonnenschein Nath & Rosenthal, don't agree on whether the newspaper is even a "public accommodation" subject to the Human Rights Ordinance. Beyond that disagreement, there's the debate over the First Amendment.
"The Tribune blatantly argues that as a newspaper it has a First Amendment Right to print or not print whatever it desires," declared the PLO's response to the Tribune's motion to dismiss. "It is clear that the First Amendment does not confer such an absolute right particularly in the context of governmental regulation of discriminatory commercial speech. Tribune death notices are obviously commercial speech."
The PLO response then quoted from the Human Rights Ordinance itself: "Behavior which denies equal treatment to any individual because of his or her race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status, or source of income undermines civil order and deprives persons of the benefits of a free and open society."
Marback's lawyers asserted, "The First Amendment does not allow the Tribune to practice unlawful discrimination. The Tribune's policy of requiring qualifying language within parentheses in death notices for same sex couple [sic] constitutes unlawful sexual orientation discrimination."
As for the argument that the Tribune offered to publish a modified death notice, it doesn't wash, the PLO maintained. The "full use" of a "public accommodation" shall not be curtailed because of sexual orientation, the ordinance declares, yet the Tribune denied Marback "the same services under the same terms and conditions as it offers to other persons." To defend itself on this point, the Tribune had cited a 1995 case involving this newspaper, Deransburg v. Chicago Reader. The PLO batted it aside.
"There, the Commission dismissed the complainant's claim of sexual orientation when it was unclear what harm or discrimination the heterosexual male complainant faced when the Reader wanted to print his personal ad in the 'Other' as opposed to 'Men Seeking Women' section. [The plaintiff in that case had placed an ad seeking a bisexual woman.] Here the discrimination and harm caused by the Tribune are clear."
Harm? "It was Marback and his family, and not the Tribune, that decided not to print Mrs. Marback's death notice," Tribune lawyers replied this month. "Instead, the Tribune merely sought to apply its editorial policies to the notice proffered by the Marback family."
Though death notices are purchased, the Tribune insisted that their contents are subject to editorial review. In the matter at hand, the Tribune "declined to print a death notice--a news item--in a form that would have been misleading and inconsistent with Illinois law." It made an "editorial judgment." Timothy Marback was asking the Human Rights Commission to "punish the Tribune for publishing truthful, legally accurate news items....
One struggles to imagine a more egregious First Amendment violation."
One doesn't need to struggle for long. It wasn't principle saying no to the Marback family; it was inflexibility. The Tribune didn't wait for Illinois law to be rewritten before it went ahead and stretched its parentheses to accommodate all significant others, whatever their legal standing.
But before a newspaper forfeits its right to be wrong, a level of harm must be demonstrated that Timothy Marback doesn't approach. If, as he says, friends of his family remained unaware that his mother had died because the notice didn't appear in the Tribune, its absence was ultimately his family's decision. Though the language acceptable to the Tribune was intolerable to the Marbacks, it was intolerable for largely subjective reasons. A few years ago the suggested substitute "lifelong partner" would have infuriated the same Tribune readers it coddled at the Marbacks' expense. Gay activists would have hailed it as a breakthrough.
Passion gets you only so far in a hearing room. If it carries Tim Marback to the vindication he covets over the Tribune, I'll be both surprised and troubled. This dispute isn't about a gay relationship the Tribune refused to acknowledge. It's about whether the Tribune had enough authority over the advertising it prints to acknowledge that relationship on its own cautious terms without violating Marback's human rights. Surely it does. A newspaper surrenders a fundamental freedom when others can tell it what to say and how to say it.
The dispute is also, come to think of it, about a gray area in the press. While portraying a death notice as a news item that reflects editorial judgment, the Tribune nevertheless contends that its death notice section is "a product offered for sale to the public" rather than a public accommodation--a "place where the public can go." But what's the product? Like journalism generally, the section is in fact more place than product; it's where people gather each day to identify society's dead. Because the people come, the Marbacks wanted to make their announcement there.
During litigation, death notices are news items. Otherwise, they're classified advertising and a revenue source. But to the families that place them, they are news of the most solemn nature. In a better world newspapers would give the space away as a public service. Then their editorial judgment, not being exercised by a profiteer, might command more respect.
"That story should have been our story," says the editor of the Daily Herald. "We had a broad tip Christine came up with that he'd been living in a farmhouse. It sat on the back burner. It sat on the back burner. It sat on the back burner. I wake up one morning and boom--it's in the Tribune."
It's a terrible thing to be scooped on a big story that happened under your nose. This was even worse. Not only is Hoffman Estates in the Daily Herald's backyard--northwest Cook County--but reporter Christine Tatum had tried to get the Herald excited about it. The story is that Mayor Michael O'Malley hasn't paid a dime in rent or mortgage on his home in the five years he's lived there, thanks to a developer whose companies have received more than $10 million in contracts from O'Malley's village.
Tatum researched the story while she worked for the Daily Herald. Before leaving the paper last month to take a reporting job with Tribune Media Services, she pitched it again to her editors. I just need to confront O'Malley, she reportedly told them. In my last two weeks do you want me to work on this or do something else?
Something else, they said. Once she was working for the Tribune Company she passed the story along to the Tribune. Northwest bureau chief Rob Karwath didn't want to talk about sources, but he told me, "We did get the information fairly recently and decided to act on it quickly." He assigned investigative reporter Ray Gibson and bureau reporter Carri Karuhn to interview O'Malley and wrap up the story, which the Tribune ran on page one.
Tatum had no comment on the episode.
"In retrospect," said John Lampinen, the Herald's editor, "a lot of us are recognizing we should have pursued that story a lot more aggressively than we did. It's awfully painful, let me tell you. It's awfully painful. We can't let the Tribune beat us on our own turf. This is a case where they did. We're saying this is never going to happen again. We went after it no-holds-barred the next day to try to catch up."
Said Karwath, "It's a nice little newspaper war." o
Art accompanying story in printed newspaper (not available in this archive): Steven Hilyer, Tim Marback photo by Randy Tunnell.