Nancy Polikoff

Gay rights in the District of Columbia -- always in the shadow of Congress

Filed By Nancy Polikoff | April 08, 2009 9:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: District of Columbia, marriage equality

I shock my law students every year when I tell them that their new-found home, Washington, DC, does not have basic voting rights and does not control its laws. Even if we get a vote in Congress this year, we will still be without any representation in the Senate. And Congress will still control our laws. That's right. Congress can veto any law passed by our City Council or just write some new laws for us if it wishes.

So when our City Council voted this morning to have the District of Columbia recognize same-sex marriages performed elsewhere, that's the context it's facing. Fighting for gay rights here always threatens to be a national matter.

In 1981, Congress kept DC from repealing its criminal sodomy statute. (It was 1993 before repeal went into effect). In 1992, Congress kept DC from spending any money to implement its domestic partner registry. That ban was lifted 10 years later. After our courts approved second-parent adoption in 1995, successive Congressional committees sought to ban the practice as a condition of paying the city for the services it provides the federal government. One amendment to that effect got as far as a conference committee, where Clinton administration intervention kept it from passage.

So the unanimous vote this morning to recognize same-sex marriages is just the first step. The bill will have another "reading" before it goes to the Mayor for his signature. Then it goes to Capitol Hill, where it sits for 30 legislative days during which it can be disapproved.

Is it any wonder our license plates read "Taxation Without Representation"?

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Thanks for all your legal leadership Nancy. So what do you think we do now? ("We" being marriage equality supporters in DC.)

The path through Congress seems really challenging -- the experience on the DC voting rights bill this year gives us just a hint of what might come on this one. I know the process that Congress uses to review DC-passed laws is different than the process of passing/amending a federal law -- can you or others explain what happens/can happen during those 30 days?

I hope that "god is in the mix" and "I prefer civil unions" does n0t give the Democrats an out to backtrack on that the DC city council had the courage to do, make its' LGBT citizens truly equal, at least as far as they could manage legally

Hi Robin-
During the period of 30 legislative days, both houses of Congress have a chance to review the law. There must be a joint resolution disapproving it or else it goes into effect at the end of that period. We can expect our (so far non-voting) Delegate, Eleanor Holmes Norton, to take the lead in keeping such a joint resolution from happening. See

Bob Summersgill | April 9, 2009 8:08 AM

We don't need to worry about the 30-legislative review period. Everyone focuses on that, but it has only been used successfully 3 times, and the last time was 1981. Back then, only one house had to pass a motion to disapprove. Since 1984, it takes both houses and the President's signature. Basically, that is too difficult to do in 30 legislative days.

When they want to hurt us now:
1) they ban the use of local tax dollars from being used to implement the law (domestic partners and needle exchange);

2)they rewrite our law (current gun restrictions on the voting rights act, and the Armstrong Amendment allowing religious owned private Universities to discriminate against gays); or

3) they strip DC of its home rule authority (Control Board and repeal of home rule under Boss Shepard in the 1870s).

Don't worry about option 3. They've only done that when we are headed to bankruptcy.

Option 1 (funding ban) is possible, but recognition doesn't cost any money. It has taken 9 years to get rid of the ban in DPs and needles.

Option 2 (rewrite law) is the worry, however that may be fairly difficult in the current Congress. Since we are looking to respect the laws of other states, we are in fairly good shape. The bad guys might be able to attach a mini-DOMA to ENDA, Hate Crimes, or DADT. That's Phil's worry, and a fair one. If we went for marriage equality, instead of marriage recognition, I think that is what we'd be dealing with.

Speaking of DC representation, why not just annex it into Maryland or VA instead of making it a state? That would solve the representation problem completely without giving one of the smaller large cities in the country two senators.

Then again, those two senators would be solid dems....