Yesterday, there was inaccurate reporting on Congressional review of laws passed by the DC Council. (Even Ezra Klein got it wrong, which is rare!) It's an easily misunderstood process and very few people have a full understanding of it. I've attempted to simplify the process and apply it to the circumstances which prompted the inaccurate reporting.
How DC has been governed has changed many times since it was designated as the new home to the American capital. Home Rule, as we now know it, was instituted in 1973 and provided for an elected Mayor and Council. Despite this, Congress still has broad power to intervene in District affairs. One example of this is when they took over the finances of the District in 1995 and appointed 3 members to the Financial Control Board, which remained in place until 2001.
The Congressional powers most relevant to the present discussion are that of legislative review and budget oversight. In several instances in the past, Congress has used their budgetary oversight power to prevent the implementation of DC law that it objected to. To do this, riders would be attached to DC Appropriations, or in the Budget, that would prevent the District from spending money to implement a certain law. Examples of this are needle exchange and domestic partnership legislation, the latter of which was allowed to be implemented in 2002.
The legislative review power is a discretionary power, NOT an automatic review, which many have suggested. It takes proactive action on the part of the Congress to overturn a law passed by the DC Council. In fact, it takes legislation passed by both houses of Congress and signed by the President. Since 1973, this has never happened.
So, this brings us to the current "situation" that some have suggested sets the District on a "collision course" with Congress by reviving "the culture war". Others have suggested that it was wrong, selfish, or dumb to cause a debate over civil marriage in Congress because of all of the work that needs to be done.
Oh, the media. They sure do love a juicy, controversial story. But, after years of the Religical Right spending a gazillion dollars making the idea of civil equality under the law for gays 'controversial', I suppose it's not that surprising. My fingers are crossed we can all move past that.
What the DC Council did this week was to agree to recognize valid civil marriage contracts from other jurisdictions. They've done it for quite some time, as does every other State in the nation. The difference is that there are now four States that allow access to the civil institution of marriage to couples of the same gender. Congress left it up to the States to decide if they will recognize these marriages when they passed the Defense of Marriage Act in 1996.
To the States, you say? But, DC isn't a State, so would DOMA give it the ability to decide to recognize these marriages? The answer is an unequivocal yes. Congress allows the District to draft its own marriage laws and administer a Family Court. For anyone to assert that, in the case of gays, that the District suddenly doesn't have the right to pass and implement marriage law is blatant discrimination.
DOMA aside, Congress could still exercise its ability to prevent implementation via the Budgeting and Appropriations process, right? WRONG. When Congress blocked funding for implementing laws in the past, they required money to be implemented. However, recognizing a civil marriage from another jurisdiction does not require a new license being issued. Instead, it is an implied recognition by the government that is, in reality, triggered by some other legal event such as the probating of a will, medical decisions being made, or issues being adjudicated in family court.
Could Congress legislatively overturn the DC Council's decision to recognize these civil marriages from other jurisdictions? They certainly could, as already noted, by passing such a prohibition in both legislative bodies and gaining the approval of the President. None of us know for sure if this will happen or not.
The ideal scenario is that Congress continues to work on legislation that will aid in the economic recovery, provide long overdue health care reform, and address the looming climate crisis. This could happen if the Democratic Leadership made it clear that any effort to distract from this agenda would not be entertained. Also, if Barack Obama would send a signal that such meddling by Congress in local affairs would meet with a Presidential veto, it should also provide ample reason for Congress to tend to its business.
America has come a long way in recognizing that inequities in the law denying equal protection to gays does not meet the promise of our Constitution. Many States provide civil recognition of relationships, prohibit school bullying, provide for equal employment rights, and allow for children to be adopted by loving parents. Many churches provide for religious and spiritual recognition of these relationships and also allow gays to serve in revered positions of church leadership.
At a time when Congress should be catching up with the rest of America, it should not allow itself to deny a local jurisdiction from dispensing equal justice under the law. If anything, it should be debating why this debate isn't already behind us.