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Same-sex marriage (SSM) in Washington, DC

Potential veto of DC bill by Congress.
Congressional bill might force plebiscite.

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The story so far:

On 2009-MAY-05, as described elsewhere, Washington District of Columbia (DC) city council overwhelmingly passed a bill (12 to 1) to recognize in DC same-sex marriages that had been legally solemnized in other jurisdictions. So, for example, a loving, committed same-sex couple could drive to Connecticut, get married, return to DC and receive the recognitions, benefits and protections for themselves and their children that DC gives to all married couples.

This bill was signed by Mayor Adrian Fenty. By law, Congress then had a 30 legislative day review period in which to allow the bill to become law, or to veto it. The interval expired without Congress taking any action. As a result, all legal out-of-state marriages became recognized in DC, whether by same-sex or opposite-sex couples, at midnight on the morning of 2009-JUL-07.

Council later passed a second bill by a simlar overwhelming vote: 11 to 2. If it becomes law, it would  establish the right of loving, committed same-sex couples to be married in DC. On 2009-DEC-18, the mayor signed this bill, as promised.

A group of conservative Christians attempted to implement a referendum that would allow DC voters to repeal the legislation. It would have required only a 50% vote plus one to restore the definition of marriage in the District to a union of one woman and one man. However, DC's laws specifically prohibits sexist, racist, homophobic and similar petitions that conflict with the equality provisions of the city's civil rights act. Thus, a city committee was forced to reject the referendum request. A court case followed. The judge agreed with the council committee that referenda specifically designed to terminate fundamental human rights cannot proceed.

Religious and social conservatives in Congress are attempting to derail marriage equality in Washington DC in two ways:

bullet By having Congress veto the second marriage bill and thus not allow its implementation. This option would still leave the first marriage bill intact, so same-sex couples could get married elsewhere and have their marriages recognized in DC.
bullet By passing a new law in Congress that prevents Washington DC from issuing marriage licenses until its citizens have the chance to veto marriage equality through a referendum.

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First possibility: A veto by Congress:

Bills passed by the District of Columbia city council and signed by the mayor are similar to laws passed by a state and signed by their governor, with one exception: They routinely go to the House Oversight and Government Reform Subcommittee in Congress for a legislative review. If most committee members are displeased with the bill, they may refer the bill to Congress, where it would be voted upon and possibly vetoed.

Congress has only 30 Congressional legislative days to implement a veto. It appears that there were holidays, weekends, and routine administrative tasks to be performed before this particular bill's 30 day clock started. According to AHN Media, the law entered the 30 day waiting period on 2010-JAN-11. 1 Because of holidays, weekends, non-legislative-period days, etc. the 30 legislative day interval will not run out until sometime in late 2010-MAR.

As of 2010-MAR-03:

bullet The House has been in session for 21 days since 2010-JAN-11. 2
bullet The Senate has also been in session for 22 days. 3

On 2010-FEB-26, the National Organization for Marriage (NOM) -- a group that opposes same-sex marriage -- stated:

"According to the D.C. City Council's website, they are going to start permitting gay marriages on March 3. Speaking procedurally, this is an outrage. The law clearly gives Congress 30 days to review city council legislation, and that law clearly specifies that it is not 30 calendar days but 30 days in which Congress, meaning both Houses of Congress, are in session. And yet city officials are deliberately and flagrantly ignoring that law, needlessly counting the days Congress was out of session for snow, all in order to rush through a bill as fast as possible." 6

Unfortunately, the NOM did not provide a URL for the location on the city's website where the announcement was made. We were unable to find it.

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Second possibility: Pass bill H.R. 4430 and S. 2980 to force a plebiscite:

On 2010-JAN-13, Representative Jason Chaffetz [R-UT] introduced house bill HR 4430 titled: "To protect the democratic process and the right of the people of the District of Columbia to define marriage." 4 As of 2010-FEB-03, it has one cosponsor: Jim Jordan [R-OH].

Nine U.S. Senators have agreed to co-sponsor a corresponding bill in the Senate: A. 2980. They are Senators:

Robert Bennett (R-UT),
Sam Brownback (R-KS),
Jim Bunning (R-KY),
John Cornyn (R-TX),
Mike Enzi (R-WY),
James Inhofe (R-OK),
Pat Roberts (R-KS),
David Vitter (R-LA), and
Roger Wicker (R-MS). 

Few people are probably surprised that all 9 senate co-sponsors and 2 House co-sponsors are from the Republican Party.

Brian Brown, executive director of the National Organization for Marriage -- an organization committed to fighting against marriage equality -- is backing HR 4430. He dispatched an alert on 2010-FEB-02, writing:

"The Senate leadership just wants this issue to go away, and will do whatever they can to bury it in committee. That's why every Senator needs to hear from people in his or her own state, urging him to stand up for the voting rights of DC residents."

"An out-of-control city council tried to do an end run around the DC Charter, refusing to recognize the rights of DC voters to file an initiative petition on marriage. Regardless of where your representatives stand on same-sex marriage, tell them that we ought not stand for this sort of government abuse against the residents of our nation’s capital."

"Tell your Senators and Congressman you want them to publicly stand for marriage and civil rights by co-sponsoring the DC Marriage Initiative Bill / HR4430. Tell them how important this issue is both for the future of marriage and for the rights of everyday citizens trying to stand up against a government machine." 5

His first statement makes a lot of sense. Democratic members of congress would probably not wish to bring this house bill to a vote; they would probably prefer that the bill never see the light of day so that they would not have to go on record as supporting or opposing marriage equality.

The second statement seems to contain some factual errors.  

bullet City council did not turn down the initiative petition. In fact, they took no action at all on the matter; they were not involved to the slightest degree.

bullet It was the DC Board of Elections and Ethics that rejected the initiative.

bullet The Board did not do "an end run around the DC Charter." They were required by the charter to turn down the initiative because of its homophobic content. They had no choice. If they had approved the initiative, they would have violated their oath of office that requires them to follow the Charter and DC laws.

bullet The local DC group that proposed the initiative took the matter to court and lost. The judge agreed that the Board had no option but but to deny the initiative.

The third statement does not seem to correspond to reality. There is no "government machine" that is denying citizens the right to hold an initiative. DC Council was not involved in the request for an initiative. The only active role was played by the citizens' committee who presented their petition request to the Board. The board played a passive role by comparing the wording of the petition with the requirements of the existing City Charter and concluding that they were in conflict.

HR 4430 has been referred to the House Oversight and Government Reform Committee. Its short title is: "District of Columbia Referendum on Marriage Act of 2010."
 
Its § 3 "Referendum or initiative requirement" states:
"Notwithstanding any other provision of law, including the District of Columbia Human Rights Act, the government of the District of Columbia shall not issue a marriage license to any couple of the same sex until the people of the District of Columbia have the opportunity to hold a referendum or initiative on the question of whether the District of Columbia should issue same-sex marriage licenses."

The bill does not raise the ethical question: should 50% plus one of the voters in the District of Columbia -- or in any other jurisdiction for that matter -- be able to veto a fundamental human right of a group of citizens. If the answer is yes, then nobody's human rights are safe. A simple petition can be raised in DC or in many states that identifies a widely disliked group and cancel their rights. Atheists come immediately to mind. They are hated and mistrusted more than any other group in the U.S. At least the percentage of American adults who would refuse toc vote for an otherwise qualified presidential candidate who is an Atheist is larger than for any other possible candidate. This question of a public veto may be partly answered as a result of a lawsuit in California seeking to overturn Prop 8 -- an initiative the terminate same-sex marriage in that state.

On 2010-FEB-22, Richard Land, head of the Ethics & Religious Liberty Commission of the Southern Baptist Convention joined with two dozen other social and religious conservatives including Mathew Staver, chairman of Liberty Counsel; Tony Perkins, president of the Family Research Council; Penny Nance, chief executive officer of Concerned Women for America; Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference; Harry Jackson, a D.C.-area pastor; Phyllis Schlafly, president of Eagle Forum; Gary Bauer, president of American Values, and Tim Wildmon, president of American Family Association. They urged Congress to pass H.R. 4430 and S. 2980 thereby bypass the District of Columbia law that prohibits plebescites intended to victimize and discriminate against any group covered under the DC Human Rights Act. They wrote:

"We not only encourage you to act on behalf of the people in the District, but we also urge you to act on behalf of those we represent in all fifty states. ... The people whom we represent expect each member of the Senate [and House of Representatives] to take action to permit the people in the District of Columbia the opportunity to vote by referendum on this most important issue of marriage."10

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Tom Ramstack, "Congress considers outcome of D.C. gay marriage legislation," AHN Media, 2010-JAN-12, at: http://www.allheadlinenews.com/
  2. "Days in session calendars," House, Library of Congress, at: http://thomas.loc.gov/
  3. "Days in session calendars, U.S. Senate," Library of Congress, at: http://thomas.loc.gov/
  4. "H.R. 4430: To protect the democratic process..." GovTrack, at: http://www.govtrack.us/
  5. "URGENT ALERT: Urge Congress to support bill to protect marriage!, National Organization for Marriage mailing, 2010-FEB-02.
  6. Brian Brown, "NOM National Marriage News -- February 26, 2010," mailing.
  7. Tony Perkins, "Washington Update: D.C. ties the knot but leaves voters unraveled," Family Research Council, 2010-MAR-02.
  8. Keith L. Alexander, "D.C. marriage bureau preparing for crush of same-sex couples," Washington Post, 2010-MAR-02, at: http://www.washingtonpost.com/
  9. "Washington, D.C., Ushers in Same-Sex Marriage," CitizenLink, 2010-MAR-02, at: http://www.citizenlink.org/
  10. Richard Land, "Land to Congress: Stop D.C. 'gay marriages," The Ethics and Religious Liberty Commission," 2010-FEB-25, at: http://erlc.com/

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
First posting: 2010-FEB-03
Latest update: 2010-MAR-03
Author: B.A. Robinson

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