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Can D.C. Slip Gay Marriage Past Congress?

The secret memo on same-sex marriage is perhaps the best-protected document in a historically leaky government; it's so secret that even now, five years after then-Attorney General Robert Spagnoletti wrote it, members of the D.C. Council say they've never been allowed to see it.

But among those who served under former Mayor Tony Williams, the word has long been that the secret memo dared to reach a legally defensible but politically unacceptable conclusion: that the District should grant recognition to same-sex marriages performed in states that have declared such bonds legal.

When the Williams administration shoved the Spagnoletti opinion into an armored closet in 2004, there was little uproar even from gay activists. The consensus then was that as much as same-sex marriage was the goal, and as strongly as public opinion might support the idea in a very liberal city, any move to legalize gay marriage had the potential to blow up the marriage movement nationwide. Any move by the District would bring the heavy boot of Congress crashing down on the city, not only negating its law but perhaps tightening restrictions on other local and state governments.

Last week, however, on the same day that Vermont became the fourth state to legalize gay marriage, the D.C. Council unanimously approved a bill granting legal recognition to gay couples married in those states. Now, council member David Catania (I-At Large) is gearing up to charge ahead with full legalization of same-sex marriage.

What has changed? In part, it's having an administration and a Democratic Congress that are both more friendly to the idea than their predecessors. In part, it's the growing number of states moving in the same direction. But any such initiative in the District is always slowed by anxiety about how social conservatives on the Hill might react. As the current stalemate in the House over D.C. voting rights has once again demonstrated, many members of Congress get great joy out of using the District to take strong stands that might not sell back home, but that nonetheless might firm up their conservative base.

Yet the fear that Congress would instantly strike out against a gay marriage law in Washington seems less inhibiting than it was a few years ago. A group called DC For Marriage has collected hundreds of signatures seeking a quick move toward a marriage law, and some gay activists who only two years ago said the District ought not push the envelope say the time is ripe.

But some longtime gay advocates still believe pushing for full marriage rights is a political mistake. "We don't think this is the year," says Rick Rosendall, vice president for political affairs at the Gay and Lesbian Activists Alliance. "We don't say never, but the trend is that we have a very good chance of having marriage equality in 10 to 15 years. The fact is that the District has a special relationship with Congress, and we don't want to do anything that might endanger our domestic partnership protections."

Catania argues that there is no better time than this year. Next year, an election year, would be more difficult. Fear of Congress is natural, but probably overblown, Catania says. "They've never actually reversed a law in the history of home rule; they've only prevented us from funding things" -- the mechanism Congress used for many years to neutralize the city's efforts to prevent deaths by providing clean needles to drug addicts.

"They love this stuff on the Hill, so there's no doubt they'd come after us, but we'd still be able to recognize the rights of people who come here from other states," Catania says. "Some aspects of freedom are free."

Catania has met with activists and religious leaders, trying to rally supporters and ease fears among opponents. He has held back from introducing a marriage bill at the request of other elected officials, who worried that raising the issue now would jeopardize passage of a measure granting city residents a vote in the House. But a move by pro-gun Democrats and Republicans to gum up the voting rights bill has paralyzed that effort, and Catania's nearly had it with waiting.

"I'm tired of leaning over the fence at the playground, waiting to be bullied," says Catania, who is gay. "I am unwilling to live under the confines of civil unions or domestic partnership laws, which needlessly and gratuitously say I am not the equal of everyone else. This proposal is about the radical notion that we can all just get on with our lives."

The more people clamor for the right to settle down and go domestic -- to join an institution that many on the right consider inherently conservative -- the less radical that movement seems. That reality is spreading fast, even to the colony we call home.

By Marc Fisher |  April 12, 2009; 7:25 PM ET  | Category:  Adrian Fenty , Politics , The District
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This is exactly why DC should have representation in the House. Congress can stand behind petty politics to dictate people's lives, people who don't even have a say. If DC is moving toward equality, congress would be extremely wrong to try and stand in the way of that.

Posted by: JPie612 | April 13, 2009 8:43 AM

Mr. Fischer,
I need to challenge your characterization of the opponents of same-sex marriage. Many of them are not social conservatives or religious fundamentalists, nor do they believe that homosexuality is a sin. Many opponents of same-sex marriage believe that same-sex relationships deserve dignity and respect and laws to recognize joint property, hospital visitation, etc. Please know that there is an effort among social scientists to strengthen the institution of marriage, because children fair best, on average, when raised by their own two, married parents. Marriage is a social institution whereby our society gives special recognition to the union of a man and a woman, because we as a society believe that is the best situation for children born into this world. Where biolgical parents are not able to raise their children, the next best scenario is for children to be raised by an adopted, married mother and father. If we as a society don't want to say this, we should have an honest, national debate about the institution of marriage. It is dishonest to set up opponents of same-sex marriage as bigots, and advocates of same-sex marriage as morally correct. Because there are moral considerations on both sides of this issue. It is good for society to recognize same-sex relationships. It is also good to have a strong institution of marriage as one man and one woman. Marriage has weakened across this country (NOT related to gay marriage), and it has weakened particularly in poor and minority communities, which face generations of fatherlessness. If we take the 'one-man-one-woman' part out of the legal definition of marriage, then we change marriage for everyone, and we change what we as a society are saying about the importance of each child being raised by his/her own married mother and father.

Posted by: Katherine5 | April 15, 2009 12:43 PM

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