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So the D.C. Council has voted to (kinda-sorta) allow same-sex marriage. What now?
Assuming the bill becomes law, plenty of observers see two fronts of possible conflict. First is that the law will set off a frenzy of congressional intervention. To wit, American Prospect’s Ezra Klein.
Nope, Del. Eleanor Holmes Norton says to LL this afternoon: “I anticipate being able to be able to protect it….In order to do something someone is going to have to introduce a bill or otherwise get something through the Congress. Well, you gotta pass by me on that….I believe I can prevent any bill from moving to the House floor to overturn the bill that was passed yesterday.”
What Klein doesn’t quite get right is that Congress need not actively “approve” D.C.’s decision. If lawmakers do nothing about the bill for 30 days, it’s law.
In fact, no District statute has been actively disapproved by Congress; what is more common is that “riders” are attached to District appropriations prohibiting spending on the controversial legislation—-which is what happened when D.C. first passed domestic-partnership laws. The chances of an active disapproval wending its way through a Democratically controlled Congress are slim—-but of course LL and others had the same thought on guns and D.C. voting rights.
Norton says the gun issue was a special case, due to the power of the National Rifle Association. “Unfortunately, the gun amendment is controlled by a big lobby that specializes in out-and-out intimidation of members and big donations. There’s no such organized lobby against gays or gay marriages….There are a lot of little organizations and a even larger ones, but they don’t have the money or the bullying tactics that have been used by the NRA. The NRA stops just short of putting guns at people’s heads. It’s a classic back-alley bully.”
The second conflict is that the law would conflict with the federal Defense of Marriage Act, which essentially prohibits the federal government from recognizing a same-sex relationship as a marriage. That’s the hope of “traditional marriage” defender Brian Brown, who did a washingtonpost.com chat yesterday with David Catania.
Here’s the text of the language: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Seems the questions are: (1) is District law the same as an act of Congress? and (2) does the District count as one of the “various administrative bureaus and agencies of the United States”?
Norton says, in both cases, absolutely not: “It’s a self-governing jurisdiction….Congress could reassert jurisdiction over the District, but it’s delegated that jurisdiction to the District, and I have insisted at least since I’ve been here that that delegation remain.”
Don’t count on that argument to satisfy conservative jurists. Once a D.C. gay-marriage law is on the books, expect to see them in court.