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Same-sex marriage bill approved in D.C.

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D.C. council members gathered with gay rights supporters Tuesday night to celebrate the council vote legalizing same-sex marriage.

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Robert McCartney
Washington Post Metro Columnist
Wednesday, December 16, 2009; 11:00 AM

The D.C. Council gave final approval Tuesday to a bill to legalize same-sex marriage, setting off a wave of excitement in the gay community even as opponents vow to continue the fight on Capitol Hill. The bill, approved by a vote of 11 to 2, will now go to Mayor Adrian M. Fenty (D), who is expected to sign it before Christmas. The bill will become law in the spring if it survives a 30-day legislative review period.

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VIDEO: D.C. Council passes same-sex marrige bill

Washington Post Metro columnist Robert McCartney was online Wednesday, Dec. 16, at 11 a.m. ET to discuss the vote and efforts by some to block the legislation.

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Robert McCartney: Let's get started. (Sorry about the slight delay; we had technical problems.) For the record, I've written in a previous column that I am a supporter of allowing same-sex marriage. However, I try to show respect for people who disagree. All sides' views are welcome here as long as the material isn't offensive.

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Washington, D.C.: How likely is it that Congress will block the legislation? And what were the "budget maneuvers" referred to by Mr. Catania in the article this morning that could be used in the future to hamper the ability of same-sex partners to marry?

washingtonpost.com: D.C. Council approves same-sex marriage bill (Post, Dec. 16)

Robert McCartney: It's unlikely that Congress will block the legislation by actually voting it down in the 30-day review period after Mayor Fenty signs the bill (as he's said he will). Democrats control Congress, and there's a Democrat in the White House. They're not going to go out of their way to stop this.

However, the best chance for opponents to stop it is in the "budget maneuvers" that Council Member Catania described. In particular, opponents could attach an amendment -- called a rider -- to an appropriations bill. That amendment could say something like: The District cannot spend any money to implement legalization of same-sex marriage. That kind of parliamentary maneuver could put the issue on the floor of Congress, and then there might be a battle that could stall the process.

Then of course there's also a risk -- though I think it's small -- that the courts could rule that D.C. has to put the matter to a referendum.

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Washington, D.C.: Assuming the law survives a court challenge, how long do you think it will last before a rider is attached to an unrelated bill in Congress that negates the law, or until a GOP-controlled Congress (and perhaps White House) simply votes it away?

Robert McCartney: I'm not sure how soon a rider might be attached. That will depend on the enthusiasm for a fight, and legislative legerdemain of opponents.

Certainly if the GOP retakes a majority in either house, then it could try to turn this back.

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Alexandria, Va.: I really don't understand why conservatives object to same-sex marriage. Please explain.

Also, why do they think that making it impossible somehow "defends" conventional marriage? I wasn't aware my marriage needed defending.

Thanks.

Robert McCartney: Conservatives who oppose same-sex marriage say generally that marriage has traditionally been defined as the union between a man and a woman. They say this law, and others like it, are "redefining" marriage.

They often say that the Bible or church doctrine defines marriage that way, so it's not something on which compromise is possible.

Sometimes they say that any redefinition of marriage puts marriage generally at risk, and thus encourages divorce and single-parent families that don't raise kids properly.

My view is that it doesn't hurt straight people's marriages to let gay people wed. I'm more sympathetic to gay people's rights than are most opponents of same-sex marriage.

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Laurel, Md.: As part of the legislative review, can Congress order a referendum?

Robert McCartney: I don't think Congress can order a referendum.

If there's going to be a referendum, it would have to be ordered by the courts. So far the courts have upheld the position of same-sex marriage supporters that it's illegal under the District's human rights law to submit this to a referendum, because you can't have referenda on whether to deprive a minority (gays) of equal rights (the right to get married).

It's conceivable that the courts could decide this time around that the opponents have a stronger case than in the past for demanding a referendum. From what I know, though, that's still unlikely. The most likely scenario for blocking this would be the congressional rider attached to an appropriations bill.

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Northeast, Washington, D.C.: 30 legislative days until it's enacted (if it's not disapproved by Congress and the prez).Is a legislative day the same as a business day?

Robert McCartney: I'm not sure. Does anybody know? If so, please write.

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Washington, D.C.: Will this law permit gays to get their citizenship or green card through same sex marriage?

Robert McCartney: I don't know the answer to this one, either. Anyone?

(I could go look it up, of course, but I'd rather spend the time answering questions here in the hour allotted, and try to get one of you out there who already knows the answer to save me the trouble!)

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Takoma Park, Md.: Mr. McC...what do you believe is the impact of allowing same-sex marriage in D.C. on Maryland? Virginia?

Robert McCartney: I believe this will encourage a push for same-sex marriage in Maryland. It won't have an effect on Virginia, at least not anytime soon, because that state has passed a state constitutional amendment defining marriage as being between a man and a woman.

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Washington, D.C.: How legitimate is Mr. Brown, of the National Organization for Marriage, claim:

"The people of D.C. have a right, guaranteed by the charter, which is D.C.'s constitution, to vote to protect marriage. Politicians on the City Council are acting as if they have the right through legislation to deprive citizens of D.C. of their core civil right to vote, but we will not let them get away with it?"

That's a huge accusation that needs some fact-checking.

Robert McCartney: I don't think that's accurate. There is a right to vote on referenda, but not when the issue is depriving a minority of its rights. The human rights act won't let people vote on taking away a minority's rights.

As long as the issue of same-sex marriage is defined as an equal rights issue -- which its supporters led by Catania have ably done so far -- opponents are stuck at that barrier.

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Washington, D.C.: On the issue of 30 days, it means days that Congress is actually in session. So, that's limited to the days they are in town and actively working. That means that the whole process could take longer than a month, since there are recesses, federal holidays, and the fact that Congress isn't always in session on Mondays and Fridays.

Robert McCartney: Thank you!

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Charlottesville, Va.: Why are gay marriage proponents so afraid of taking this to the Supreme Court? It seems any court case would be the functional equivalent of Loving vs. Virginia, and should be decided similarly. Then we could stop this nonsense with putting rights to a popular vote in each individual state.

Robert McCartney: Hmmm. I'm not as confident as you that this Supreme Court would rule as you hope. Surely the four most conservative justices -- Scalia, Thomas, Roberts and Alito -- would vote nay. (Scalia would do his utmost to stop it.) I doubt Kennedy would see this as the Loving case was seen. Despite the progress on same-sex marriage, I think there's still sufficiently strong popular opposition to it that it would be risky to push it to the High Court.

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Odenton, Md.: Are there any provisions in the law that compels people to act against their consciences or religious beliefs? If so, isn't that a violation of free expression of religion?

Robert McCartney: Protecting freedom of religion has been a key issue in this whole process. There are lots of provisions in the bill to prevent churches from having to endorse same-sex marriage in violation of their faith beliefs.

In particular, churches are not required to perform religious ceremonies to solemnize same-sex marriages. The bill only applies to civil marriage, not religious marriage.

It's hasn't all been resolved, though. There's been a struggle, and it seems set to continue, over whether the Catholic Charities can continue to accept city contracts. The church has said it's required as a condition for having contracts to certify that it's in compliance with city laws. It thinks it wouldn't be able to do that, in particular because its faith beliefs bar it from extending spousal benefits to its employees in same-sex marriages.

According to this morning's story in The Post by my colleague Tim Craig, conversations are going to continue between the city and the archdiocese over how to resolve this. Catholic Charities has about $20 million worth of city contracts to run homeless shelters and provide other welfare services. That's not all the charity it provides -- in fact, it's a minority. But it's significant, and it appears to be at risk.

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washingtonpost.com: D.C. Council approves same-sex marriage bill (Post, Dec. 16)

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Washington, D.C.: On citizenship, the federal government runs it, so as long as the the Defense of Marriage Act remains in effect same-sex marriages will not be recognized by the feds and as such will not be eligible for citizenship benefits.

Robert McCartney: Here's an answer to the second question I put out there. Thanks.

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America: I have a question, not for you, but for opponents of gay marriage: What does it bother you so much what your neighbors do, especially when it does not affect you? Why would you wish to deprive others of the same legal benefits other couples enjoy? What is the purpose in harming others just for some belief you have, and why should your belief guide the beliefs of others?

Robert McCartney: Here's a question for opponents to answer. I'll publish responses.

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Waldorf, Md.: I have read that much of the organized opposition to same-sex marriage in D.C. has come from church groups. Which local religious groups are they? Will they be required by law to either marry or change anything they are doing directly? Are there any religious organizations which support same-sex marriage?

Robert McCartney: The opposition in the District has come principally from evangelical Protestant churches, especially in the African American community, and from the Roman Catholic archdiocese.

Outside of the District, a major opponent has been the Church of Latter-Day Saints, or the Mormons. I'm not sure how active they've been in the District.

About 200 local churches have joined a coalition supporting same-sex marriage. I know that that group includes many Unitarian and United Church of Christ congregations.

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Fairfax, Va.: Mr. McCartney --

At the top of this post, you state that you try to be respectful of views on this issue that differ from yours, yet why is it that Post editors have constantly mischaracterized the Church's position on these matters? Most particularly the false and misleading headline that Catholic Charities and the Archdiocese were threatening to cut their services to the poor. The Post's headline was grossly inaccurate and contributed to erroneous information used to attack the Church and its position.

Robert McCartney: Thank you for asking this, because it gives me a chance to clarify something that's been confusing to many people.

You're absolutely right that the Roman Catholic archdiocese did not say it was eliminating its services and charity for the needy if the bill passed without amendment. The church will continue to help the poor, homeless, ill, etc., regardless.

However, unless there's a compromise somewhere, the church said it would no longer be able to enter contracts with the District under which it provides various welfare services. That's because -- as I explained above -- it doesn't think it can certify it would be in compliance with the new law requiring that same-sex marriages be treated the same as opposite-sex marriages. That's especially an issue in how Catholic Charities handles its spousal health and other benefits for its employees.

Those city contracts are to run 9 homeless shelters, a health clinic and provide other services. It's a minority of what Catholic Charities does, but it's substantial. Between 35 and 40 percent of the group's $54 million annual budget comes from local and federal money that flows through the District.

So: Unless something changes, it seems there's a serious chance that the archdiocese at some point would have to reduce, but not end, providing some valuable services to the poor that it provides at present.

The church has emphasized it would continue to help the poor, but, presumably, not with city money. The city would find other churches or welfare organizations to run the same services. There's concern that the other groups wouldn't do as good a job as Catholic Charities.

Conversations are continuing.

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D.C. resident: I guess that for the opponents of same-sex marriage, it doesn't count for anything that this legislation was overwhelmingly approved by the D.C. Council and is supported by Mayor Fenty, all of whom were democratically elected to office by D.C. voters?

Robert McCartney: Opponents say they want a referendum, and based on the experience elsewhere, one can see why. I am pretty sure that same-sex marriage has been rejected by the voters every time it's been submitted to a popular vote. I believe that's happened 31 times in the U.S.

That doesn't mean at all that it has to be submitted to the voters here. It's been passed legally -- by a huge, 11-to-2 majority on the Council -- and will be signed by the mayor. The democratic process has been respected. As some have pointed out, the landmark, 1960s Civil Rights Act wasn't submitted to a popular referendum. It was passed by Congress and signed by President Johnson. That's what's happened here.

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Hyattsville, Md.: Where does it give considerations to the archdiocese of Washington and their services to the needy? Will they now be forced to cut many of these great projects. I thought the Catholics were diplomatic and polite when trying to discuss this matter, but I don't see any language that protects their religious freedom?

Robert McCartney: There were provisions for religious freedom in that, for example, the bill doesn't require Catholic priests to perform same-sex marriages.

The church wanted some other exemptions, too, such as one that would allow it to decline to extend spousal benefits to same-sex spouses. Catania and others on the Council (Mendelson, especially) said granting such an exemption would undermine the key goal of the bill, which was to guarantee equality of marriage rights for gays as well as straights.

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Falls Church, Va.: To America --

First, it is incorrect to assert that just because people oppose "gay marriage" means that they oppose legal frameworks for gay couples. Legal protections equivalent to those afforded by marriage can and have been extended in many places to gay couples. In fact, the proponents of the D.C. Council action constantly used San Francisco has an example of why the Catholic Church could accommodate the San Francisco law -- but the difference was that San Francisco enacted a Domestic Partnership law and not a marriage law.

Second, let's turn your argument on its head, why should natural law be overturned to impose the views of those who support gay marriage on those who don't, especially when it has been demonstrated that there is broad acceptance for domestic partnership laws which would cover every single aspect of the relationship without using an eight letter word?

Robert McCartney: I don't agree with this, but it's an example of thoughtful opposition to the bill.

You're right that the San Francisco exception was adopted to cover domestic partnerships. A similar approach, used by Jesuit-founded Georgetown University, does apply to marriages, though.

I disagree with you on two points. First, while I hesitate to get in philosophical debates with people who are probably more learned than I, I don't agree necessarily with your interpretation of "natural law." I think it can ... evolve.

Second, while almost all the rights of marriage can be provided in a domestic partnership, there's an extra dollop of legitimacy, commitment, and other benefits provided by using the word "marriage." Gays want that for themselves, and I see no compelling reason to deny it.

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Washington, D.C.: So why does the Catholic Church enter into contracts with D.C. that require them to provide equivalent benefits for people who remarry with living ex-spouses? Those are against Catholic doctrine too.

Honestly, how would we feel if Jewish organizations pulled out of contracts with any civil government that didn't ban pork for all, including non-Jews? Why does the Catholic Church feel that it has the right, not only to refuse to solemnize marriages that go against its law (definitely its right) but also to force that marriage law on non-Catholics (NOT its right)?

Robert McCartney: Here's an example of thoughtful analysis from the other side.

The church says the divorce issue is a red herring, but I've gotta say I don't fully understand why. The argument seems to be that the rules against divorce and remarrying are of less importance, within the hierarchy of Catholic beliefs, than the definition of marriage as between a man and a woman.

I hadn't thought of the Jewish pork argument, but it's intriguing.

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Germantown, Md.: Let me be open by saying that I support equal rights and protections for same-sex couples other than the right to marry. With that said, how is same-sex marriage any different than polygamy. Aren't they both a re-definition of marriage? It seems that there a large degree of support (particularly on the left) for same-sex marriage, but would those same folks also support polygamy?

Robert McCartney: I think this is an interesting hypothetical question, but it's of little practical import. There's so little support for polygamy that an actual movement to legalize it, citing the change in definition of marriage to allow same-sex marriage, is highly unlikely.

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Burke, Va.: I, as a woman married to a man, am horribly insulted by people claiming that they need to ban same-sex marriage to "protect" my marriage.

Let me make it clear to you folks. What you say when you say that is that my marriage is not worthwhile in its own right, that it needs special government-granted privilege to survive, and that it cannot stand up to the competition even of a legal alternative that, by definition, does not even APPEAL to heterosexuals. You are telling me that my husband and I are incapable of sustaining our love for each other and our commitment to each other, just because the legal option exists to marry someone of the same sex. In other words, you are insulting my marriage, calling it shallow, worthless, and unsustainable without special government favoritism. You are insulting my husband and I. You are insulting my moral values -- my commitment to my family and the promises I made to my husband -- by suggesting that I need government reinforcement to uphold them.

Go home and "protect" your own marriage, and stay out of mine, and out of my gay and lesbian neighbors.' I don't need your "help."

Robert McCartney: Thanks for your thoughts.

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Washington, D.C.: Aren't opponents of same-sex marriage (and the press in its coverage of them) overestimating their numbers? Your colleague at the Washington City Paper seems to be of the opinion that any citywide referendum on gay marriage would show overwhelming support for.

Robert McCartney: I'm less confident about that result. Supporters conducted an opinion survey that showed a majority of District voters favored same-sex marriage, and I wrote about it in a column. A plurality of blacks were against it, though, and I think opinion could turn pretty fluid in a high-profile, well-financed campaign that would precede a referendum. No state has endorsed same-sex marriage in a popular vote, so the District would be the exception if it did so. That's certainly conceivable, given the District's demographics and political views, but I wouldn't be sure of it.

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Robert McCartney: Time's up. Apologies to everybody who wrote who didn't get a response. Thanks for writing and reading.

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