Written by DCist contributor Christopher Durocher

Never mind that D.C.’s delegate doesn’t actually have a vote in either house of Congress. Never mind that D.C. residents get a “shadow” representative and senator that are so influential that most members of Congress wouldn’t know our delegation if they tripped over them. Never mind that legislators, federal courts and pretty much the rest of the nation couldn’t care less that we in the nation’s capital are subject to “taxation without representation.”

Never mind all the indignities we suffer as residents of a non-state, because the results of tomorrow’s midterm elections just might have a profound effect on D.C.’s ability to control it’s own destiny. And nowhere is this more true than in the D.C. lesbian, gay, bisexual and transgender (LGBT) community, where marriage rights may hinge on the number of congressional seats Democrats are sitting in come January 3, 2007.

Since the Republican takeover of Congress in 1995, the overwhelmingly Democratic populous and government of the District have often been forced to temper their own policy preferences out of fear of congressional reprisal. A more sympathetic Democratic majority may put more trust in the democratically elected D.C. government. Most striking for gay-rights advocates, this could result in recognition of marriage rights, to one extent or another, for same sex couples, particularly if Democratic gains are large in tomorrow’s election.

For Whom the (Wedding) Bell Tolls

Adrian Fenty, who is expected to win tomorrow’s mayoral election easily, publicly supports gay marriage, but has also sounded a cautious note about pushing the issue, for fear that a conservative Congress would, through legislative fiat, overrule any recognition of those relationships. In addition, as the Washington Blade reports:

At the urging of… local gay groups, most incumbent Councilmembers, along with the candidates expected to win on Nov. 7, have said they would wait until strong opposition to gay marriage subsides in Congress before they would risk approving a gay marriage bill in the D.C. City Council.

Much of the criticism regarding gay marriage, both from Republicans and Democrats, stems from what cultural conservatives term “judicial activism.” Except in Connecticut, gains in gay marriage and civil union rights over the past six years have stemmed from court rulings, not the legislative process. In Vermont, Massachusetts and New Jersey, courts have determined that under their respective state constitutions, same sex couples are entitled to the same rights and obligations as straight couples, whether through marriage or civil unions. Critics argue that citizens, through their elected representatives, should decide whether to extend marriage rights to gay couples. If you take these critics at their word, they would have little reason to oppose an effort by the D.C. Council to allow gay marriage in D.C.

Marriage Through the Backdoor

Even if the D.C. Council and Fenty decide that gay marriage is politically infeasible at this time, there may remains a backdoor through which LGBT residents could have their marriages recognized in D.C.

Two years ago, at the request of Mayor Anthony Williams, Corporation Counsel Robert Spagnoletti, D.C.’s top attorney, drafted an opinion letter that reportedly advised the mayor that D.C. must recognize same sex marriages performed in Massachusetts. This is critical because, under a 1913 law, Massachusetts will not issue a marriage license unless the law of the couple’s home state would recognize the marriage. This has allowed Massachusetts to deny marriage rights to most out-of-state couples (although a recent ruling granting a Rhode Island couple the right to marry in Massachusetts may have limited the impact of that law somewhat). Mayor Williams has refused to release the letter, saying he is concerned it will antagonize Congress.

When he takes office, Fenty will also face a decision on whether to release the Spagnoletti letter. During his campaign, Fenty pledged to release it if he was elected mayor. Now, with the prospect of a Democratic-controlled House, Fenty may not be able to use fear of reprisal from a hostile Congress as an excuse to withhold the letter. This would mean that same D.C. sex couples, while not being able to wed here, could marry in Massachusetts and return to a city that recognizes that marriage and its concomitant rights and obligations.

While it may be too soon to get fitted for that Vera Wang wedding gown or to book Big Joe and the Dynaflows to play the reception, election day might just give some LGBT D.C. residents a reason to do the funky chicken.