DC Gay Marriage on a Crash Course with Congress?

by Laura Hatalsky

Earlier this week, the DC City Council held its first of a series of hearings on gay marriage in the District. As expected, the event featured fireworks and protestors aplenty. But underlying the proceedings was a sense of inevitability that cannot be denied.

Earlier this year the Council solidified its LGBT-friendly stance when it voted in near-unanimous (12-1) fashion to recognize same-sex marriages performed in other jurisdictions. Similar to Maine’s Question 1 battle, opponents of marriage equality immediately challenged the bill by proposing a citywide referendum. The DC Board of Elections, however, denied the request on the basis that it would “authorize discrimination prohibited under [D.C.’s] Human Rights Act” of 1977, and the DC Superior Court confirmed the decision, keeping the issue off the ballot. Barring a flip-flop, it is expected that the Board and the Courts would remain consistent on the issue by not allowing District residents to vote on gay couples’ marriage rights.

When David Catania (I-At Large) introduced the “Religious Freedom and Civil Marriage Equality Amendment Act” in the first week of October, the bill boasted 10 cosponsors, with only three Councilmembers withholding their endorsements—Yvette Alexander (D-Ward 7), Harry Thomas Jr. (D-Ward 5), and the council’s most infamous member, Marion Barry (D-Ward 8).

With the Council poised to pass gay marriage and a referendum highly unlikely, is our fair city destined for a deluge of rainbow weddings? For gay couples hoping to tie the knot in the District, there is one rather large hurdle between passage of the bill and wedding bells for same-sex couples—Congress. Unlike every other city in the nation, Congress has jurisdiction over Council-passed initiatives and city financial affairs. In the coming days, weeks, months, and even years, look for opponents of marriage equality in Congress to take one of several avenues available to block same-sex marriages from taking place.

The first and most feasible route for Congressional intervention relies on the yearly appropriations process. Instead of revoking the bill outright, Congress can instead forbid the District from using funds to implement legislation. In fact, that’s exactly what Congress did from 1992 until 2003 when it included a yearly appropriations “rider” that prevented the implementation of the city’s law granting domestic partnerships to gay and lesbian couples. With LGBT-friendly Chairmen (Sen. Durbin and Rep. Serrano) heading the relevant appropriations subcommittees, the original drafts of the legislation likely won’t include such a rider. However, unless the Republican Party has a major change of heart on the subject, votes to add prohibitive language will happen as frequently as there is a viable opportunity; and with an ever-growing tent of Members and constituencies, the Democratic Party will struggle to cobble together solidarity when voting on one of the most politically radioactive policy debates of our time. Republicans have everything to gain by forcing votes on the subject and Democrats have everything to lose. With over 50 Blue Dog Democrats, a President that openly does not support gay marriage, and election cycle pressures pulling progressives to the middle, the outcome of these votes is unpredictable at best.

On the more immediate horizon, Congress will have 30 legislative business days to review the “Religious Freedom and Civil Marriage Equality Amendment Act” once it’s passed. During this period, which could hypothetically stretch for multiple calendar months depending on the legislative schedule, Congress can pass legislation revoking enactment of the Council’s bill. Many on the liberal side of the aisle count this as unlikely, evoking Nancy Pelosi (with her “San Francisco values”) as a reliable guardian of LGBT equality. While it would be political suicide for her to directly allow such a process to move forward in the House, in a two-body chamber, the real and viable danger for DC gay marriage lies out of Madame Speaker’s jurisdiction—in the United States Senate.

The Senate—the greatest deliberative body in the world, the last vestige of hope for the minority party, and the chamber more prone to backroom deals and negotiation—has meddled in the District’s affairs before. One need look no further than earlier this year when the Senate passed the DC House Voting Rights Act of 2009. Before passage, the now ignominious Senator John Ensign (R-NV) attached an amendment that specifically altered DC gun laws he deemed in conflict with the 2nd Amendment. Principles of federalism aside, not a single Republican voted against Ensign’s amendment, and with 22 Democrats joining their ranks, it cleared in a 62-36 vote. This maneuver has stalled the DC voting rights effort for now, and it is not difficult to imagine a similar technique being used in the future to stifle gay marriage rights in the District. In the event that must-pass legislation meets an Ensign imitator with enough resolve, it is feasible that a bill containing provisions to end DC marriage equality would be sent to President Obama’s desk. When viewed in comparison, do the marriage rights of perhaps 50,000 gay and lesbian District residents outweigh health care reform? Financial market regulation? Iraq and Afghanistan military spending? Might legislation slip through in the shadows of more pressing priorities?

While most City Council bills move on to enactment without Congress so much as blinking, there is a consistent and reliable history of Congress stepping in on issues of national polarization. When the “Religious Freedom and Civil Marriage Equality Amendment Act” passes the Council later this year, the real battle for marriage equality in the District may not be over after all.

Email Laura Hatalsky at lrh28@hoyamail.georgetown.edu



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