D.C. City Council member David Catania’s bill to legalize same-sex marriage in Washington was tweaked slightly before a Council committee advanced it this week. (Blade photo by Aram Vartian)

By LOU CHIBBARO JR, Washington Blade
Nov 11 2009, 11:27 AM  |     |     |  

A bill allowing same-sex marriages to be performed in D.C. cleared its first major hurdle Tuesday when a City Council committee voted 4-1 to approve it.

The vote by the Committee on Public Safety & Judiciary to pass the bill at a markup hearing came immediately after it voted 4-1 to defeat an amendment that would have allowed people, including private business owners, to refuse to provide goods and services related to a same-sex marriage.

The committee vote also came one day after Council member Phil Mendelson (D-At Large), who chairs the committee, released a revised version of the bill that received full support from nearly all other Council members, including gay Council member David Catania (I-At Large), the bill’s author.

One of Mendelson’s changes removed from the bill language that would have ended city registration of new domestic partnerships after January 2011.

The other change broadened the bill’s exemption for churches and religious organizations to allow them to refuse to rent facilities or provide services for same-sex marriage ceremonies, even though such facilities and services are available to the general public.

The original bill as drafted by Catania provided the same exemption to churches and all religious institutions, but barred it from being used by religious entities that provide goods and services to the general public.

Nick McCoy, a spokesperson for a coalition of organizations and activists supporting the same-sex marriage bill, said the groups had no objections to the changes made by Mendelson.

The religious oriented exemption amendment introduced Tuesday by Council member Yvette Alexander (D-Ward 7) would have put in place a much broader exemption than the language Catania and Mendelson placed in the bill.

Alexander noted that her amendment would allow any individual, including owners of private businesses, to refuse to provide goods, services or public accommodations for a purpose related to the performance, celebration or promotion of same-sex marriages.

“The intent is to protect against liability for people who say [same-sex marriage] is against their religious beliefs,” she said.

“There are really some individuals where everything is guided strongly by their religious beliefs,” Alexander told the Blade after the committee vote. “And I think this would just put an imposition on them.”

In speaking against the amendment, Council member Mary Cheh (D-Ward 3), a George Washington University law professor, said the effect would be to allow individuals as well as private businesses to refuse to rent a hall, sell a wedding gown or provide catering services to anyone planning a same-sex marriage.

Mendelson called the amendment “unacceptable,” saying it would go far beyond the exemption already in the bill and result in allowing private, non-religious businesses to engage in discrimination that currently would violate the city’s Human Rights Act.

Rick Rosendall, vice president of the Gay & Lesbian Activist Alliance, said Alexander’s amendment would “gut” the Human Rights Act as it applies to same-sex couples seeking services related to marriage, such as the rental of a hall for a wedding reception.

Alexander was the only member of the five-person committee to vote for her amendment. She also was the only member of the panel to vote against the bill.

Mendelson and fellow committee members Cheh, Jack Evans (D-Ward 1) and Muriel Bowser (D-Ward 4) voted against the Alexander amendment and supported the bill, known as the Religious Freedom & Civil Marriage Equality Amendment Act of 2009.

Eleven of the Council’s 13 members have said they will vote for the marriage bill when it reaches the full Council, and Mayor Adrian Fenty has said he plans to sign the measure.

Alexander said Tuesday she plans to vote against the bill at the Dec. 1 Council session. Council member and former D.C. Mayor Marion Barry (D-Ward 8) has expressed opposition to the bill on religious grounds, but has not said how he plans to vote Dec. 1.

Mendelson made the revisions to the bill before Tuesday’s committee markup hearing in his role as chair of the committee with jurisdiction over the legislation.

He also released a 22-page proposed committee report on the bill, which gave a ringing endorsement of the measure on grounds that lesbians and gay men should be given the same right to marry as all other city residents.

In action separate from the bill vote, the committee voted 4-1 to approve the report, with Alexander voting against.

The revised version of the bill approved Tuesday by the Committee on Public Safety & Judiciary leaves intact all of the major provisions written by Catania, including the key provision allowing same-sex marriages to be performed in D.C.

During the committee’s two days of public hearings on the bill, held Oct. 26 and Nov. 2, Catania said he was open to removing language he placed in the bill that called for ending the city’s registration of new domestic partnerships after January 2011. Catania noted that he put the provision in the bill because most states that have legalized same-sex marriage have ended existing domestic partnership or civil unions programs on grounds that most same-sex couples prefer marriage.

But a number of witnesses, including officials with the Gay & Lesbian Activists Alliance and lesbian rights attorney and American University law professor Nancy Polikoff, urged the Council to remove the “sunset” clause for domestic partnerships from the marriage bill. These witnesses suggested that the Council take up the domestic partnerships issue at a later date and through separate legislation.

On the religious exemption provision, Catania’s original bill noted that “a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by” a church or religious group “shall not be required to provide services, accommodations, facilities or goods” for the purpose of performing any marriage “unless the entity makes such services, accommodations, or goods available … to members of the general public.”



The revised bill submitted by Mendelson removed the provision excluding the exemptions from religious entities that don’t make “such services, accommodations, or goods available … to members of the general public.”

The report that accompanied the revised version of the bill says the committee “removed this language … after considerable comment from both secular and non-secular organizations.”

“Including this language would have had the undesirable impact of religious institutions closing their spaces to community groups and organizations, as there would otherwise be civil [liability] stemming from any refusal to solemnize or celebrate a same-sex marriage,” says the report.

Similar to his view on the domestic partnership provision, Catania noted during the Council hearings on the bill that he would be open to considering modifying the religious exemption provision in a way similar to the change made by Mendelson.

However, both Catania and Mendelson said at the hearings that they did not support further changes in the religious exemption provision proposed by the Catholic Archdiocese of Washington. Archdiocesan officials and an official with Catholic Charities called on the Council to add a provision allowing religious organizations that provide services for the city, such as homeless shelters and adoption or foster child services, to refuse to provide employee benefits to the spouses of same-sex employees.

Catania noted that as much as 75 percent of the funding for Catholic Charities-operated homeless shelters and adoption agencies come from the government. He said it would not be fair for groups receiving funds from taxpayers to engage in discrimination in employee benefits against same-sex couples.

He and Mendelson, along with other Council members attending the hearings, also expressed opposition to proposals along the lines of the Alexander amendment, which some witnesses called a “religious conscience” exemption.

“I think the chairman worked diligently to make sure there was no gap or hole in the legislation with regard to protections for any sort of religious institution,” McCoy said in discussing the religious exemptions that remain in the bill.

“The work that he did makes sure there are no challenges in the future that would be harmful to the passage of the legislation or the perception of the legislation,” McCoy said.

Bob Summersgill, a gay activist who has coordinated efforts on behalf of D.C. domestic partnership and same-sex marriage legislation, agreed.

“There’s no chance that the bill won’t pass the Council,” he said. “It’s very likely the vote will be 11-2” in favor of the bill.

Summersgill predicted the Democratic controlled Congress would not overturn or block the bill from becoming law during a required 30-day legislative congressional review period following approval of the legislation by the City Council.

But he said gay rights opponents in Congress might attempt to “do something” against the legislation next summer, when the city’s budget comes up for congressional review.

“If they’re going to hurt us,” Summersgill said, “that’s where they’ll do it.”

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