Gay Rights on the Double: Bill to Repeal DOMA to Hit Capitol Just as Same-Sex Marriage to Be OK'd in Capital

BUZZFLASH NEWS ANALYSIS
by Meg White

This weekend, gay-rights activists in our nation's capital may be toasting a double to some of their elected representatives. As federal lawmakers gear up to try to repeal the Defense of Marriage Act in Washington, local lawmakers in D.C. are counting the ayes ahead of a vote on same-sex marriage.

The Washington Post reports today that the D.C. City Council will likely pass the "Religious Freedom and Civil Marriage Equality Amendment Act of 2009" shortly, a bill which would allow same-sex marriage as well as the transfer of domestic partnerships to district-sanctioned marriage by 2011. The votes are there; in fact the bill main sponsor, Councilman David Catania, says it may pass unanimously.

But because of the unique way in which D.C.'s local legislation is subject to approval by federal legislators, the likelihood of legal gay marriage in the district for the long term is far from assured. Congress has recently reaffirmed their control over the city in a craven move attaching an unpopular anti-gun control measure to a bill which would grant D.C. a full vote in the House.

Legislation aside, the "photo-op" element to this story is significant: Imagine the power of a picture of two men or two women saying their vows with beautifully-constructed monuments which are universally recognized as representing our nation's capital in the background. The District of Colombia has a certain visual power that is unmatched by any other location in the United States, and often functions as a symbol of the will of the people.

Yet, the move is still largely symbolic. Even if the act passes and survives Congressional challenges, gay rights proponents will still have the Defense of Marriage Act (DOMA) to contend with, making same-sex marriages in D.C. practically worthless on the federal level and in states that don't recognize them.

It may be that after well over a decade of accepting this discriminatory legislation as law, Congress is finally ready to act. On Tuesday, Sept. 15, Reps. Jerrold Nadler (D-NY), Tammy Baldwin (D-WI), and Jared Polis (D-CO) will introduce legislation to repeal DOMA.

Despite this Congressional promise of action, conservative members of the D.C. community are still trying to get the GOP to step in on their behalf. One gay rights opponent told the Post that the definition of marriage should be up to the people of D.C. to decide, not the city council. Tom McClusky, a vice president for lobbying at the Family Research Council, says that "this is one of those cases where D.C. residents are asking [federal lawmakers] to get involved" in local legislation.

Ironically, conservatives have been blocking D.C. from having a voting member in the House for quite some time. So asking Congress to approve or disapprove of city legislation because D.C. residents -- who still do not have a vote in the House or Senate -- feel disenfranchised seems highly contradictory.

But this nonsensical argument is really all they have left. The Human Rights Campaign (HRC), the largest LGBT civil rights organization in the country recently pointed out that the proposal to allow D.C. residents to choose via referendum whether or not the city should discriminate against gay couples violates the city's human rights provisions:

In June, the D.C. Board of Elections and Ethics held a public hearing and ruled that Bishop Harry Jackson Jr.'s proposed referendum, which sought to ban recognition of same-sex marriages from other jurisdictions, would have the effect of violating the D.C. Human Rights Act, which, among other things, prohibits the government from denying services or benefits based on an individual's sexual orientation or gender identity. Bishop Jackson filed suit, and a D.C. Superior Court judge determined that the Board of Elections and Ethics ruled properly that the proposed referendum would violate the D.C. Human Rights Act.

The assumption is that D.C. gay rights activists don't have much to worry about in Congress. The Post story quotes an advocate who says he's "fairly confident" the Democratically-held House and Senate will be able to stave off any attempt to overturn the act if it becomes law.

Overturning DOMA is another issue entirely. Partly because of how slowly congressional wheels turn, some are attempting to challenge the constitutionality of DOMA within the judicial system, rather than rely on legislative action.

A case challenging California's Prop 8 referendum as discriminatory is on its way to the Supreme Court. However, many in the legal community argue that the outcome of a Supreme Court challenge to DOMA is far from known. In fact, some worry that in the effort to push this ahead before five votes on the court can be secured could backfire and result in the setting of a precedent that may be damaging to gay rights.

As far as the Justice Department goes, Attorney General Eric Holder's recent legal brief supporting DOMA is frustrating and even reprehensible. However, it is more of a technical position than it appears. The defense of the Defense of Marriage Act was more procedural than most give credit for because the brief filed by the DOJ was part of a civil case, in which Holder is required to defend the government position independently of the wishes of the executive branch.

In fact, the brief itself called DOMA discriminatory and asked Congress to repeal it, a stance echoed more than once by the president himself. Friday's announcement from Reps. Nadler, Baldwin and Polis may mean that at least the House of Representatives is finally ready to answer the president's call. The proposal comes one day after HRC hand-delivered 50,000 public comments and survey results about the law rejecting federal recognition of same-sex marriages to Congress, as part of their recently-launched "Repeal DOMA" effort.

"Under DOMA, even same-sex couples lawfully married under the laws of their states are ineligible for numerous rights, benefits, and responsibilities, including those related to Social Security, immigration, family and medical leave, joint taxation, federal employee benefits and many more," the group said in a campaign appeal. "In recent months, momentum to finally repeal DOMA has been surging. As poll after poll shows support for marriage equality growing, DOMA has become a relic of a bygone era."

Assuming the bill is introduced next week as planned and the D.C. provision passes the city council vote, conservative lawmakers will have some important choices to make. They could insist upon meddling once again with local D.C. politics by condescendingly telling the district they aren't allowed to extend equal rights to gay people. And then when the DOMA repeal comes up for a vote, they'll need to examine other priorities. If conservatives really want to deny gay people their rights to equal protection and due process, and deny states their rights under the Full Faith and Credit Clause, they will have to publicly affirm their support for inequality.

Which, unless they want to "become a relic of a bygone era," probably isn't that great of an idea.

BUZZFLASH NEWS ANALYSIS

Image courtesy of the Human Rights Campaign's blog, HRCBackstory.