Civil Marriage Equality in the District of Columbia?
During my guest stint on Concurring Opinions, I plan to take a look at several law and policy issues that were key parts of President Obama’s agenda during his campaign and see where matters stand, as we near the one year date since his historic election. One such issue is civil rights — as a candidate, Barack Obama supported full civil unions and federal rights for LGBT couples. Already, the landscape across the United States in late 2009 looks quite different from late 2008, as state legislatures enact and expand domestic partnership laws and some states move (sometimes spurred by a judicial ruling, but sometimes on the initiative of the legislature) from civil unions or domestic partnerships to civil marriage. Yesterday, District of Columbia City Council member David Catania, with the support of nine other Council members, introduced a bill to extend civil marriage to same-sexcouples. Media reports about the bill indicate that some members of Congress may try to prevent the bill from becoming a law when Congress exercises its review power. However, other members of Congress indicate that with all that is on Congress’s plate, it is unlikely members would press for a joint resolution to block the law and, further, the District should be allowed to decide for itself.
In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons, that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.
Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”” should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.
A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage — a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other. Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law, evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.