Memorandum for: GLAA Members
From: GLAA Executive Committee
Subject: DC and the fight for equal marriage rights
How to Get from Here to Marriage in One Easy Step: You Can't
The recent marriages in San Francisco, Canada, and the Supreme Judicial Court rulings in Massachusetts have pushed marriage to the forefront of the gay community faster and more forcefully than any other issue ever has. At the beginning of February, same-sex marriage was a largely abstract and wistful dream with the usual plodding and political twists and turns which are mostly ignored by all but the most dedicated activists and news junkies. Now same-sex marriage is a hot debate across the country with daily skirmishes in courts and legislatures, making small town mayors and county clerks major news icons. The President pushed the issue by endorsing a constitutional amendment to forever ban same-sex marriages.
In the District of Columbia, for the first time in over a decade, the gay community has been energized to respond to a political issue. More than 2,000 people attended a rally organized by the Human Rights Campaign. A small group organized an event for Freedom to Marry Day at the Metropolitan Community Church, and a group of gay law students held a meeting for the legal community to foment a plan. Marriage news has been on everyone’s lips. Who is going where to marry, what mayor or county clerk is performing marriages, and what the far right will do in response and how this impacts the elections, has become a dominant topic for everyone. A similar emotional outpouring hasn’t been seen in our community since the death of Matthew Sheppard. The call for political action hasn’t been seen since the sodomy law reform effort in 1992. Only AIDS in the 1980s brought together our emotions and political interests together with this intensity, and even then, they didn’t boil up as quickly.
So, what to do?
Clearly, we will have a hodgepodge of laws until the eventual Supreme Court ruling. Every city and state is looking to advance or block same-sex marriages. Approaches vary widely. Mayor Gavin Newsom’s bold move in San Francisco to start performing same-sex marriages has spawned many imitators in New Paltz, Asbury Park, Sandoval County, and Multnomah County. More may be on the way. State attorneys general are looking at whether they can or should recognize same-sex marriages from other places. And state legislatures across the country are seeking constitutional amendments to permanently ban same-sex marriages in their states. Gay activists are trying to stay ahead of the issue, despite the situation and facts shifting on an almost hourly basis.
What we don’t have is a clear strategy that will lead to marriage. What may work in California will not work in Virginia. Each place will have to follow a different path, taking into consideration the local political situation. “All politics is local,” Tip O’Neill famously intoned, but the same cannot be said of the District of Columbia. Unlike anywhere else in the country, D.C.’s laws, budget and even government are subject to congressional whim. Article I, Section 8 of the U.S. Constitution grants Congress the power:
“To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States…”
This gives Congress the right to determine how we may spend local tax revenue, review and rewrite our laws, even dissolve our local government. Congress has not shied away from wielding their authority. In the District's brief 27-year history of limited home rule, Congress has suspended the Mayor’s powers during the period of the Financial Control Board, blocked the repeal of our sodomy law in 1981, and blocked funding to implement our domestic partnership law for 9 years.
The present Congress is more conservative than the country as a whole. Some of the most virulently anti-gay members of Congress serve on the committees that oversee the District. And the very idea of same-sex marriage enrages them. Unfortunately, contrary to what we could expect on almost any other issue, many of our usual allies on the Hill will not be there for us. Even the presumptive Democratic presidential nominee, Senator John Kerry, opposes same-sex marriage. We are hearing already that an anti-marriage rider to our budget is being planned.
The right wing knows as well as everyone else that the Federal Marriage Amendment is not going to pass this year. Some in frustration, some in retaliation, some for political gain, and some out of spite will look for a way to impose a marriage ban in some way. The District is an inviting target. Few outside the Beltway are concerned about us. The members of Congress face no political repercussions from what they do to us, and back home in Oklahoma and Alabama they look like heroes, just in time for their re-elections.
In this highly charged climate, the Washington Blade newspaper and the Socialist Workers Party advocate a grand gesture that they surely know will fail. Based on GLAA’s candidate questionnaires asking whether D.C. councilmembers support same-sex marriage in principle, they conclude that the 8 of 13 answering yes would support a same-sex marriage bill now. This is an apples and oranges comparison. Most of the 8 supportive councilmembers oppose pushing for marriage now. All recognize that an election year is the worst possible time to push a controversial issue. If the community went full force in pushing for a same-sex marriage law now, as the Blade advocates, it is unlikely that a bill would garner more than 3 votes, and probably not the three you would guess. The councilmembers understand what is at stake. They understand the likely repercussions and would sit on the bill indefinitely to prevent it from coming up for a vote. Delay is the rule, not the exception, in legislation.
Imagine a fantasy in which the D.C. Council passed a marriage law and the Mayor signed it. It would be sent to Congress for their review. As with the 1996 Defense of Marriage Act, a disapproval of a D.C. marriage law would have strong bipartisan support. Our allies would once again be put on the spot to vote against us. Any politician wavering on the issue, or in a competitive district, would come out against us, or lose. But Congress would not stop there. We would see a ban on same-sex marriage written into our laws. We would see a ban on the recognition of same-sex marriages from other places. We would see a prohibition on future gay-inclusive marriage laws, much like the ban on medical marijuana laws. And we would see a re-imposition of a ban on implementing our domestic partnership law.
Most of the social riders that Congress places on the D.C. budget are anti-gay. And they re-impose them year after year. Years after we lost a Boy Scout discrimination case in federal court, Congress is insisting that we not enforce the earlier Human Rights Commission ruling. Even though it is a completely moot issue, the reflexively anti-gay Congress can’t let go.
Additionally, our counterparts in nearby states are concerned that our actions will hasten their legislatures to impose constitutional bans on them. Certainly a marriage law in D.C. now would convince more members of Congress to support the Federal Marriage Amendment. In the nation’s capital, we must recognize the consequences that our actions uniquely have on the rest of the country.
We are likely to see some of this come to pass whatever we do. But the harder we push, the more Congress will do to us. The question for us as a community is how much are we willing to lose for a grand gesture? We will not get marriage from this bull-in-a-china-shop approach. The Blade advocates that we “let Congress respond how it may.” If we do, Congress will deal us a blow that will end our marriage campaign before it really begins. We will have to sit by and wait for the U.S. Supreme Court to rule that the marriage ban in Mississippi is unconstitutional. We just might get marriage in our lifetimes, but don’t count on it.
As much as we would like D.C. to take the lead on this, we cannot. A blind and reckless approach, such as the Blade advocates, will not secure the right to marry, but will lead to a setback that will take years -- if not decades -- to undo and help accelerate a constitutional amendment that we might mot be able to undo in our lifetimes.
If we want same-sex marriage, we will need to come together as a community and form a long-term strategy. We must agree on what acceptable losses will be. We must do considerable research; such as the study that GLAA recently completed identifying all of the 212 rights and responsibilities of marriage under D.C. laws. We must consult with our allies in national groups and other statewide groups. And we must strategize to maximize our advances and minimize our losses.
GLAA has been sharply criticized and belittled by the Blade for thinking strategy is useful. The Blade has attacked us for not running headlong into the abyss without a plan. History teaches us what happens when we seek marriage without careful planning and laying of groundwork. A failed attempt in the DC Council in 1976, initiated by an ahead-of-his-time Arrington Dixon, left us with bad legislative intent to overcome. In 1990 an ill-considered lawsuit established bad case law that poses a hurdle for us to overcome today. Our actions should open up options, not close them down. But the Blade dismisses thoughtful analysis as an “indefensible defensive posture."
The Blade dismisses GLAA as “a very small group of intelligent, well-intentioned activists from an older generation who have not kept up with the fast pace of the gay rights movement today.” It is significant that the Blade has not been able to quote a single activist of any age who disagrees with us.
When we consult other gay political and legal groups both here and across the country, the Blade says that we “grumble like Billy Crystal’s grumpy old man that they know what’s best for the rest of us.” Apparently only by ignoring all others and acting unilaterally and impulsively would we not be grumpy old men.
Perhaps the Blade just isn’t paying attention. They do have trouble reporting basic facts. Blade editor Chris Crain states flatly that "GLAA has opposed efforts to adopt broader legal recognition for gay couples in the District..." Then they refer to our marriage report, our candidate questionnaires, legislation and resolutions that we have initiated and lobbied for as evidence that we are “sitting out this issue.”
Since they do not bother to come to our open meetings, they haven’t learned, and are unlikely to report, that we are at the forefront of the same-sex marriage movement nationally and will be hosting a meeting of state activists from across the country to formulate a state-by-state strategy to secure marriage rights. Our grumpy 28-year old vice-president, Christopher Neff, is leading that effort.
The Blade wants a quick and easy solution to a complex and controversial issue. Unfortunately there is no quick and easy fix. GLAA won’t be letting the distortions and hostile attacks from the Washington Blade deter us from our efforts.
GLAA will continue to work for the full and equal right of gay people to marry in the District. It will not happen this year. It is unlikely to happen in the next five years. But we will stay on the case until we win, as we have done so many times before.