Washington Blade - November 19, 2004
Lou Chibbaro Jr. can be reached at lchibbaro@washblade.com.

The 109th Congress, which is set to convene in January, will almost certainly see another vote on a constitutional amendment to ban same-sex marriage, according to both supporters and opponents of a marriage amendment.

"Thank goodness our founders required a two-thirds majority to pass a constitutional amendment," said Rep. Tammy Baldwin (D-Wis.), one of three openly gay members of the House. "I think they will still fall short of a two-thirds majority needed to pass a marriage amendment."

The Federal Marriage Amendment, a proposed constitutional ban on gay marriage, was defeated earlier this year in separate votes in the House and Senate. Backers of the measure vowed to bring it up again next year.

Most Capitol Hill observers agree with Baldwin's assessment that another effort to pass a constitutional ban on gay marriage will likely fail in the 109th Congress.

But gay rights supporters, including gay Rep. Barney Frank (D-Mass.), said a court decision overturning or weakening the 1996 Defense of Marriage Act could dramatically boost support for a marriage amendment and possibly lead to its passage.

At least four separate lawsuits challenging the constitutionality of DOMA are currently pending in federal courts.

All bets are off, according to Frank and other gay-supportive lawmakers, in the unlikely event that the U.S. Supreme Court overturns the Defense of Marriage Act, known as DOMA. Frank said he doubts the Supreme Court would issue such a ruling anytime soon.

DOMA defines marriage under federal law as the union only between a man and a woman and gives states the authority to refuse to recognize same-sex marriages issued in other states. Most members of the House and Senate who voted against a proposed constitutional ban on gay marriage earlier this year cited DOMA as their main reason for rejecting the anti-gay marriage amendment.

"Their biggest argument was we should leave this up to the states," said Don Stewart, communications director for Sen. John Cornyn (R-Texas), a lead supporter of a federal marriage amendment.

Steward said Cornyn and other supporters of the amendment believe the court challenges by same-sex couples to DOMA, as well as pending challenges to state laws banning same-sex marriage, are glaring examples of the "invalidity" of the argument that the matter should be left to states.

He said Cornyn feels a constitutional ban on same-sex marriage is needed to fend off efforts that could succeed in overturning state laws banning same-sex marriage and forcing states to recognize same-sex marriages issued in Massachusetts. According to Steward, court challenges to DOMA and state marriage bans would boost support for the federal amendment, even if these challenges eventually fail.

Steward said Cornyn plans to hold more hearings next year on the amendment in his role as chair of the Senate Judiciary Subcommittee on the Constitution.

ENDA to get trans spotlight

While the proposed marriage amendment is expected to capture the spotlight among gay rights issues on Capitol Hill, a flap among gay activists over the Employment Non-Discrimination Act is also expected to draw some media attention.

The act, known as ENDA, calls for banning employment discrimination based on sexual orientation in the private sector workplace. The legislation has been stalled in Congress for more than 10 years. Other versions of a gay civil rights bill similar to ENDA have languished in committee since the 1970s.

Earlier this year, the Human Rights Campaign, the nation's largest gay political group, raised eyebrows on Capitol Hill by declaring it would no longer support ENDA unless its sponsors agreed to add a clause banning discrimination on the basis of "gender identity and expression." The term is aimed at banning discrimination against transgendered persons.

While hailed by transgender rights activists and some gay leaders, HRC's action drew criticism from others who predict far fewer members of Congress would sign on to co-sponsor a trans-inclusive ENDA.

Senator Edward Kennedy (D-Mass.), the lead sponsor of ENDA, has yet to disclose whether he would introduce a version of ENDA in the 109th Congress with the transgender clause sought by HRC.

Kennedy's chief spokesperson, David Smith, who worked as HRC's communications director before joining Kennedy's staff last year, said he could not reach Kennedy's chief legislative aide as the Blade went to press to determine Kennedy's position on the issue.

Jason Kello, a spokesperson for Rep. Mark Foley (R-Fla.), one of the lead Republican co-sponsors of ENDA in the House, said Folely would not add transgender language to any ENDA version he reintroduces next year.

"The best thing we can say is the bill as it stands now has enough obstacles in its way," Kello said. "Adding something new to weigh it down further won't be helpful to moving it."

A spokesperson for Rep. Christopher Shays (R-Conn.), the lead sponsor for ENDA in the House, did not return a call by press time. Frank said Shays has indicated he would not agree to add a transgender clause to ENDA. Frank said he was doubtful that HRC would be able to line up any Republicans to co-sponsor an ENDA with a transgender clause.

"I feel it would be a mistake to put that in ENDA," Frank said. "It will lose support. It will make it harder to pass this in the future."

Baldwin said she supports adding transgender language to ENDA, even though she agrees it could lead to a drop-off in support.

"It's clear that the Republican leadership in the House is unwilling to move ENDA forward," Baldwin said, regardless of which version is introduced. "So this will give us a good chance to enlist cosponsors and build broader support over the next four years."

HRC has trans backers

Winnie Stachelberg, HRC's political director, said the group has identified members of Congress willing to co-sponsor an ENDA version with a transgender clause, but she declined to identify them.

"It is premature to go into detail in naming people who will do this," Stachelberg said. "We are having conversations with people."

She said HRC would likely release the names of the ENDA co-sponsors early next year.

Asked if two versions of ENDA may emerge, with one including the transgender clause and the other leaving it out, Stachelberg said such a development is possible.

Mara Kiesling, executive director of the National Center for Transgender Equality, said a trans-inclusive ENDA would promote public education and understanding of the discrimination faced by transgendered persons at a time when Congress is not expected to advance any gay civil rights legislation.

"What are the prospects for passing ENDA? Zero," Keisling said. "As to whether we may lose co-sponsors, we may. But I don't know if that will really matter. There are people who don't come through for us on a number of bills. So we will use this to educate our friends."

Conservatives may take helm of D.C. committees

D.C. gay activists said they were looking with great interest at the possible candidates for chair of the House and Senate appropriations subcommittee for the District of Columbia. In recent years, moderate Republicans gained control of two subcommittees, which decide on D.C.'s annual appropriations bill, and have opposed adding new anti-gay amendments to the city's appropriations measure.

Existing amendments, which Congress has passed each year, include a prohibition on the city's ability to bar the Boy Scouts from discriminating against gays, a prohibition on the city's implementation of a voter initiative legalizing medical marijuana, and a ban on the use of city funds to pay for clean needle exchange programs to curtail the spread of AIDS.

Earlier this year, the House appropriations subcommittee on D.C. persuaded Rep. Jo Ann Davis (R-Va.) to withdraw a bill seeking to ban same-sex marriage in the District, Capitol Hill sources said.

The subcommittee's chair, Rep. Rodney Frelinghuysen (R-N.J.), a moderate who has opposed anti-gay amendments, could be replaced next year by a less supportive lawmaker, some Capitol Hill sources said. A committee spokesperson said a decision on the new chair would be made in January.

"I anticipate a difficult and challenging year ahead for D.C.," said gay Republican activist Carl Schmid, who has lobbied against anti-gay amendments aimed at the D.C. appropriations measure. Schmid said the influx of conservative House members hostile to gay civil rights could lead to another attempt to impose a ban on gay marriage in the District.

HRC said it would continue to push for these additional gay rights related bills, with the hope of gaining more co-sponsors, even though prospects for passing them are remote:

* Local Law Enforcement Enhancement Act: Commonly known as the hate crimes protection act, the bill would authorize the federal government to prosecute anti-gay hate crimes and provide financial assistance to states for prosecution of such crimes.

* Permanent Partners Immigration Act: Seeks to amend an existing immigration law to allow foreigners who are same-sex partners of U.S. citizens to obtain citizenship rights and benefits in the same way that foreigners who are married spouses to U.S. citizens obtain such rights and benefits.

* Early Treatment for HIV Act: Would expand Medicaid to people living with HIV rather than limiting it to those with full-blown AIDS.

* Domestic Partnership Benefits & Obligations Act: Would provide domestic partners of federal government employees the same benefits available to spouses of federal employees.

* Domestic Partner Health Benefits Equity Act: Would change current tax code to exempt employees from being taxed on benefits provided to their domestic partners in the same way that employees are exempt from taxation on those same benefits for their married spouses.

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