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Already some big news out of the D.C. Council's busy legislative session. In a unanimous preliminary vote, the Council voted today to explicitly recognize same-sex marriages granted by other states, the Post reports. While the District has long recognized domestic partnerships between gay couples, it had not formally recognized such marriages granted in states such as Connecticut or Massachusetts, where same-sex marriage has been legalized. This bill, introduced by At-large Council member Phil Mendelson (D), stops short of legalizing same-sex marriage in the District, but another At-large member, David Catania (I), has long promised that he plans to introduce such a measure before the Council this year.
A final vote in about a month on Mendelson's bill is still necessary, but with today's unanimous approval, its final passage is all but assured. D.C. Mayor Adrian Fenty has said he is in favor of legalized same-sex marriage, so there's every reason to think he'll sign it. Whether Congress will put up a fuss is, of course, another matter entirely.
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I sincerely hope the Mayor can find the time in his busy schedule of jetting around the globe and visiting his oil-soaked Middle Eastern pervert friends to sign this bill into law.
Does this make a practical difference?
Not really. Even if the District said outright that it wouldn't recognize same sex marriage (or for that matter some Congressman from a conservative state attached a bill to legislation requiring the District to not recognize same sex marriage) there's a much bigger hurdle for any state (or the DC, in that unlikely case) opposing that marriage: Article 1, Section IV of the US Constitution, the Full Faith and Credit Clause, by which judgments from one state are to be given full faith and credit in another jurisdiction. So, John and Sally get married in Hawaii, well, then Rhode Island has to recognize the marriage. Now, Ted and Bob get hitched in Vermont and in theory Virginia can't say squat about it. The marriage is the equivalent of a judgment, even if a clergy-person conducted the ceremony, and if one state doesn't like the fact that (a) gays are marrying in foreign states and (b) they must respect those marriages they can (c) go screw themselves . . . at least they have to while simultaneously screaming about states' rights. That's the part that makes me tingly all over.
Unfortunately, it's not quite that simple. There is a well-established rule stating that states are not required to recognize marriages from other states if those marriages are contrary to the public policy of the second state. So if two 14-year olds get married in some state where that is legal, NY is permitted not to recognize the marriage. While this rule was originally used as an excuse for states to refuse to recognize mixed-race marriages performed in other states, I believe it is still used to refuse to recognize marriages where the parties were too young (according to the second state's standards) or where the blood relationship between the spouses was such that the second state would prohibit their marriage as being incestuous (i.e., allowing for refusal to recognize cousin marriages or the creepy uncle/niece marriages that Rhode Island allows).
So the states that refuse to recognize same-sex marriages performed in other states do have an argument -- an argument that could probably survive a Full Faith & Credit attack.
Let's not forget about the DOMA people, Bill Clinton, as much as I liked the guy, signed that into law back in '96 which states clearly that states ARE NOT REQUIRED to recognize any marriage from another state that is not between one man and one woman. It further gives states the right to decide how they want to deal with the issue of gay marriage. A state can chose to deny it entirely and unconditionally, or a state can choose to accept it from other states (New Mexico) or offer some combination of civil unions or marriage entirely (Connecticut, Vermont, Massachusetts, and Iowa).
DC is in a more difficult position to approve full marriage equality because of the meddling daddy congress standing over our shoulder. We saw what happened to the voting rights bill, who's to say that some ass hole republican won't do the very same thing to this bill (if and when) it ever reaches them? All they have to do is attach some stipulation that will get a conservative group to "score the vote" and we're done for. Sadly a huge flaw in the political system... the majority often get to choose the fate of the minority, regardless of what rights are being violated.
If the final measure reaches congress and passes un-obstructed (a miracle) that would (as I understand it) allow DC gay couples to hop on the train to one of the 4 states that allows gay marriage, and does not require residency, and then come back home to have the marriage fully recognized. The next logical step then would be to push through a measure allowing the District to issue marriage licenses to same-sex couples, which in theory would be easier to do once the groundwork has been laid.
It is my hope that Congress will be more focused on the economy and problems with Iraq and N. Korea (as they very well should be) and will simply approve the measure without incident... I am hopeful but very cautious at the same time.
What this means is that the conference report on the DC voting bill will overturn DC's gun regulations and outlaw gay marriage (and recognition thereof) in the District. If the voting rights bill gets anywhere. What will the Republicans tack the inevitable torpedo against gay marriage in DC onto? I wonder
Will be whether the States-Rights Republicans stand up for the actions of the states and demand that the DC government recognize the actions of the states? I doubt it.
We have a significant disadvantage here in that we need to call our 435 Representatives and our 100 Senators who represent us to get them to vote the right way on our bill. Ordinary Americans only have to call one Representative and two Senators.
(Yes, 435. I don't count EHN. I have never even had the courtesy of a return phone call or e-mail from her office, so I'm not sure she represents me. In any case, she can't vote.)
Zzzzzzzzz... Somebody wake me when council votes to recognize marriage between humans and canines.
"Not really. Even if the District said outright that it wouldn't recognize same sex marriage (or for that matter some Congressman from a conservative state attached a bill to legislation requiring the District to not recognize same sex marriage) there's a much bigger hurdle for any state (or the DC, in that unlikely case) opposing that marriage: Article 1, Section IV of the US Constitution, the Full Faith and Credit Clause, by which judgments from one state are to be given full faith and credit in another jurisdiction."
No. Under current law, the Defense of Marriage Act (DOMA), signed by the Bill Clinton in 1996, expressly allows any state to refuse to accept a same sex marriage from another state. That is black letter federal law. The same law prohibits the federal government from recognizing same sex marriages for any reason (such as Social Security benefits, etc).
Now, is the DOMA constitutional? There are arguments on both sides (actually seperate arguments for and against both provisions), but until a case is brought before the Supreme Court and the Court issues a ruling, the DOMA is the law of the land and states are free to disregard same sex marriages from other states.
So what DC is doing is not merely symbolic.
Actually "G Lover Park", that's not completely true, at least not with regard to marriage. Because of the Defense of Marriage Act (http://en.wikipedia.org/wiki/Defense_of_Marriage_Act), same sex marriages don't have to be accepted by other states. This is why this action by the Council is so significant, and it does make the next logical step, making legal same sex marriage in DC, much more of a possibility.
Really? Bill Clinton??? Well, I stand corrected. Then again, I guess for the same guy who brought us "Don't ask, don't tell" I shouldn't be surprised. Still, how does one pit the DOMA against the Full Faith and Credit clause, especially with this happy band of conservatives on the Court? Moreover, how could one make an argument the DOMA is constitutional in the wake of Lawrence v. Texas?
It's been awhile since I've looked, but I believe there are a series of cases holding that FF&C doesn't apply to marriage in certain situations. Typically, IIRC, these cases permit a state to refuse to recognize an out-of-state marriage where the out-of-state marriage contravenes the state's "public policy." It's usually age-of-consent or certain, um, family relationship issues that gives rise to the case. It seems that the same sort of "public policy" issues could be raised in the context of same-sex marriage.
In '96, when there was a R congress and dems were generally unpopulor, Clinton's Gallup favorable average was 59%.
Also, Lawrence may have limited use in determining DOMA's constitutionality. It held, largely on privacy grounds, that a criminal statute was unconstitutional. Neither the privacy concern nor the criminalization issue are implicated in a constitutional challenge to DOMA. In addition, Justice O'Connor was part of the Lawrence majority. Justice Alito may not see the issue the same way.
The SC held a long time ago that there's no federal question in gay marriage. I don't remember the exact details, but couple that with the fact full faith and credit doesn't apply to marriage, getting DOMA overturned will be a tall order. Tall like Manute Bol.
Way to go, D.C.
Now if only CA can get its act together like you...
We're not entirely out of the woods just yet, but it's a huge step in the right direction!
I would urge DC residents to write the council member representing their ward and express your support and appreciation for this first step. They need to know that we're behind them and that we are grateful for their unanimous support (I mean really, when has the council been unanimous on anything?)