Gay Marriage Gets Thumbs Up in Nation's Capital

Legislative and court victories mount despite losses at ballot box.

November 30, 2009, 9:08 PM

Dec. 1, 2009— -- The D.C. Council voted in favor of same-sex marriage on Tuesday, moving Washington, D.C., a big step closer to becoming the first jurisdiction below the Mason-Dixon Line to allow full civil equality for gays and lesbians.

The D.C. measure, which passed by a wide 11-2 margin, reinforces the nationwide trend towards gay marriage in legislatures and at the courthouse even though advocates of same-sex marriage are continuing to falter whenever the issue is put directly to a public vote.

The latest ballot-box defeat for gay marriage came last month when Maine became the 31st state to use a public referendum to block gay and lesbian couples from marrying. The residents of Maine voted to repeal a state statute passed by the legislature and signed by the governor which would have permitted gays and lesbians to marry. Maine's gay-marriage statute had not yet taken effect, awaiting the outcome of the referendum.

The decision on the part of voters in Maine to exercise the "people's veto" amounted to a tough loss for gay marriage advocates who were hoping to score a ballot-box victory after seeing court-mandated gay marriage repealed last year in California by Proposition 8.

While the ballot-box defeats in Maine and California have given conservatives a populist argument against gay marriage, proponents of marriage equality have scored important judicial victories in Massachusetts, Connecticut, and Iowa as well as legislative victories in Vermont and New Hampshire.

Although today's D.C. vote is a milestone for gay marriage advocates, there are still several more steps in the process before gay and lesbian couples can start marrying in the nation's capital.

To ensure that the D.C. Council -- a unicameral body -- does not act in haste, its full membership votes on all bills twice before any legislation becomes law.

As a result, the gay-marriage bill will come up for a second vote of the full Council on Dec. 15.

If, as expected, it is approved a second time, it will then go to Washington Mayor Adrian Fenty, who supports the legislation, for his signature.

From the time the mayor signs the gay-marriage bill, Congress will have 30 legislative days to enact a joint resolution of disapproval. President Obama would have to sign that resolution for the city law to be blocked.

Even if such a resolution is not passed, members of Congress can try to attach an anti-gay marriage rider to another piece of legislation.

The top Republican on the House subcommittee which oversees the district is considering a variety of legislative methods for blocking gay marriage there, including the appropriations process.

"Some people legitimately and often ask: 'Why is it that a congressman from Utah, or anyplace else, is sticking their nose in this?'' asked Rep. Jason Chaffetz, R-Utah. "Article I, Section 8 of our Constitution says that in all cases, the Congress shall oversee the laws of Washington, D.C., and that is what we're trying to do."

While Chaffetz is confident that gay marriage could not survive an up or down vote in the Congress, the Utah Republican acknowledges that the House's liberal leadership will almost certainly thwart any efforts to block gay marriage from coming to a vote.

"I still think traditional marriage would win" if it were put to an up or down vote, said Chaffetz. But "procedurally, I think they've got an iron grip on their ability to block it from coming up for a vote," he added, referring to the House's Democratic leadership.

Beyond the efforts taking place in Congress, an additional anti-gay marriage effort is being made in D.C. Superior Court.

A group called Stand4MarriageDC wants a ballot measure which says that "only marriage between man and woman" should be "valid or recognized" in the city.

Last month, the D.C. Board of Elections and Ethics ruled that allowing residents to vote on a gay marriage ban would violate Washington's 1977 Human Rights Act, which prohibits discrimination.

The Stand4MarriageDC group is now suing in Superior Court on the theory that if the Council has the right to change the law in order to allow same-sex couples to marry, then the people have the right to make laws on the same subject.

"I think proponents of same-sex marriage are afraid of having a vote because traditional marriage typically wins," said Chaffetz.

The architect of Tuesday's gay marriage legislation countered by saying that questions about minority rights should not be left to votes of the people. To make his argument, D.C. City Councilmember David Catania noted that the district had a referendum in 1865 in which only 36 of the city's residents voted to extend the franchise to African-American males.

"It isn't that I'm fearful of losing," Catania told ABC News. "I think the process is diminishing. I think that putting the rights of minorities on the ballot and allowing the forces of intolerance to spend an unlimited amount to demonize and marginalize a population is ... unsavory."

The groundwork for today's vote was laid in May of this year when the D.C. Council voted to recognize gay marriages performed in other states.

Catania says that while the May vote may seem incremental, it was in fact the bigger leap.

"We're fighting about whether or not couples have to get on a plane to get married--not whether or not they can," said Catania. "It's about where the marriage should take place--not whether or not it is the lawful equivalent of a heterosexual marriage. That happened over the summer."

ABC News' Elizabeth Gorman contributed to this report.

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