Federal Intrusions and the Gay Communityby Rick Rosendall, President
Gay and Lesbian Activists Alliance of Washington, D.C.
(Originally published in Guild Practitioner, 1997 Convention Issue)
In its dealings with the federal government, the District of Columbia has learned a most painful lesson: what is right and just is not always what is specified in the United States Constitution. Article I, § 8 of the Constitution states:
- The Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States....
This language provides the basis for the colonial grip in which the District is held by Congress. It is reinforced by a key provision of the Home Rule Act:
- Notwithstanding any other provision of this Act, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council. [D.C. Code Ann. § 1-206 (1987).]
Defenders of democracy have urged Congress to respect the spirit of home rule by refraining from preempting or overruling the District's elected Council except in cases involving a clear federal interest. Indeed, with some notable exceptions (some of which will be described below), prior to the creation of the financial control board two years ago, Congress seldom exercised its authority to overturn District laws. When Congress has chosen to impose its judgment in place of the District's own, the principle targets have been equal protection for gay citizens and public funding of abortions for poor women. The District has proven all too convenient a political playground for social policy initiatives of the intolerant right, whose congressional adherents do not have to answer to District voters.
Sodomy Repeal and the Unicameral Veto
In 1981, the D.C. Council repealed the District's felony sodomy law as part of the Sexual Assault Reform Act, which was then signed by the Mayor. In reaction to this, the Moral Majority launched a bigoted campaign of disinformation, suggesting that the law would lead to bestiality in the streets of the nation's capital; in Congress, Rep. Philip Crane (R-IL), a right-wing former presidential candidate, launched an effort to overturn the law. On October 1, 1981 during the congressional review period specified in the Home Rule Act for Council-passed legislation the U.S. House of Representatives overturned the D.C. Sexual Assault Reform Act, using the one-house veto authorized in the Home Rule Act.
On June 23, 1983, by a 7-2 decision, the Supreme Court in a separate case affirmed a Court of Appeals ruling that the unicameral veto "violates the constitutional doctrine of separation of powers." [Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983)] Subsequently, both houses of Congress as a "housekeeping" measure reaffirmed the actions previously taken unicamerally, and the President gave his signature. Nevertheless, the ruling in INS v. Chadha, by affirming the applicability of Art. I, § 7 of the Constitution to such cases, made it more difficult for Congress to overturn District legislation. Unfortunately, political realities in the District (including the refusal of Ward 8 Councilmember Wilhelmina Rolark to move on sodomy repeal legislation, and the refusal of her colleagues to push on the matter due to the previous defeat in Congress) prevented the District from repealing the sodomy law until 1993. That year (following Marion Barry's 1992 defeat of Rolark in Ward 8), new repeal legislation survived the congressional review period. D.C. remains the only jurisdiction in the metropolitan area in which consensual acts of sodomy between adults in private are not a crime. [The Maryland Court of Special Appeals (the state's highest court), in its May 19, 1988 decision in Schochet v. State of Maryland (541 A.2d 183 (1988)), giving deference to the Supreme Court's 1996 Hardwick decision, invalidated Maryland's two sodomy statutes (27-553 and 27-554) for heterosexual sex, thereby adding Maryland to the list of states that criminalize only same-sex sodomy.]
During the 1980s, GLAA succeeded in persuading the D.C. Council to deny bond issues and street closings to Georgetown University, which was violating the D.C. Human Rights Law by denying equal treatment to gay student groups. After losing to the gay students in the D.C. Court of Appeals, the University settled with the students and began receiving its long-sought bond issues and street closings. Then Congress decided to step in. The following account is from the December 13, 1988 opinion by U.S. District Judge Royce C. Lamberth in Clarke v. United States:
- Congress enacted the Armstrong Amendment in response to the decision of the D.C. Court of Appeals in Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C. 1987) (en banc). In that case, a majority of the court construed the D.C. Human Rights Act to require that Georgetown University provide facilities and services to gay student groups equivalent to those provided to other student groups, although the court held that Georgetown need not officially recognize such groups. The court found that requiring such services did not violate the free exercise rights of Georgetown University, which is affiliated with the Roman Catholic religion. (Clarke v. United States, 705 F.Supp. 605 (D.D.C. 1988))
Plaintiffs in Clarke v. United States that is, all thirteen members of the D.C. Council, led by then-Chairman David A. Clarke challenged the constitutionality of the "Nation's Capital Religious Liberty and Academic Freedom Act," also known as the "Armstrong Amendment," which was enacted October 1, 1988 by Congress as part of the 1989 D.C. Appropriations Act. The Armstrong Amendment reads as follows:
- Sec. 145(a) This section may be cited as the 'Nation's Capital Religious Liberty and Academic Freedom Act.'
- (b) None of the funds appropriated by this Act shall be obligated or expended after December 31, 1988, if on that date the District of Columbia has not adopted subsection (c) of this section.
- (c) Section 1-2520 of the District of Columbia Code (1981 edition) is amended by adding after subsection (2) the following new subsection:
- "(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition -
- "(A) the use of any fund, service, facility, or benefit; or
- "(B) the granting of any endorsement, approval, or
- to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief." [Pub. L. No. 100-462 (Oct. 1, 1988); text printed at 134 Cong. Rec. S9108 (daily ed. July 8, 1988).]
In ruling for the plaintiffs, Judge Lamberth declared that Congress, while free to legislate directly for the District, may not compel the District's elected legislature to vote in a particular way.
- Congress may at any time exercise its authority as the legislature, but that exercise of authority must be constitutional.... Congress chose to create a legislative body, not an administrative one. Its expressed intent was to create "a system of municipal government similar to that provided in all other cities throughout the United States" and one "responsible and accountable to the voters" (H.R. Rep. No. 482, 93d Cong., 1st Sess. 2 (1973)) with powers to legislate in certain areas specified by Congress. Members of City Council, like any other legislators, have first amendment rights, and the fact that Congress retains the greater authority does not render the speech of Council members unprotected. Indeed, this greater authority merely renders Congress' interest in restricting the Council's speech all the less compelling. Accordingly, the court finds that the Armstrong Amendment places an unjustified burden on the first amendment rights of plaintiffs. The court therefore holds that the "Nation's Capital Religious Liberty and Academic Freedom Act" is unconstitutional. [(Clarke v. United States, 705 F.Supp. 605 (D.D.C. 1988)). This was affirmed by the U.S. Court of Appeals for the D.C. Circuit on Sept. 26, 1989 (886 F.2d 404 (D.C. Cir. 1989)). The court then re-heard the case en banc and vacated the prior opinion on procedural grounds on October 2, 1990, remanding it to Lamberth to be dismissed (915 F.2d 699 (D.C. Cir. 1990)). While Lamberth's argument quoted here is therefore not binding as precedent, the proposition involved which was not specifically addressed by the Circuit Court remains valid as a proposition.]
In the aftermath of this court ruling, Congress directly enacted the changes to Section 1-2520 of the District of Columbia Code that were specified by the Armstrong Amendment. Those changes remain in effect, although no religiously-affiliated educational institution in the District has invoked the Human Rights Law exemptions in question. GLAA has called for the D.C. Council to repeal these congressionally-imposed provisions.
The Armstrong Amendment is not the only case in which congressional demagogues have grossly abused their powers over DC appropriations to pander to the radical religious right and their allies. In every DC appropriations bill since the District passed the Health Care Benefits Expansion Act of 1992 (our domestic partners law), Congress has included language to forbid the District from expending any funds to implement the law. So far in recent years our allies have prevented further depredations, such as attempts to prohibit adoptions by unmarried couples. In blocking such right-wing amendments, we have been helped by lobbying from the Human Rights Campaign and the Log Cabin Republicans, and by the leadership of Sen. Jim Jeffords (R-VT), a moderate who chaired the Senate Appropriations Subcommittee on the District of Columbia in the 104th Congress. Things took a decided turn for the worse in the 105th Congress, when Jeffords was replaced by Sen. Lauch Faircloth (R-NC), and Jeffords' counterpart in the House, Rep. James Walsh (R-NY), was replaced by Rep. Charles Taylor (R-NC). These conservative southerners have been much more aggressive in micromanaging the District and in second-guessing the financial control board that Congress put into place.
Amidst the discussion of various plans for reordering the District's relations with the federal government, we endorse those aspects that would grant the District effective budget autonomy over those agencies remaining under DC government control, without the need for the current system of total Congressional control of the District's entire budget.
Thanks to a recent court decision, unmarried couples may now adopt children jointly in the District. GLAA opposes efforts in Congress, led by Rep. Jay Dickey (R-AR), to outlaw or restrict such adoptions. The true victims of such posturing would be the children who would otherwise enjoy the benefit of having not one but two legally and financially responsible parents. We believe that the overriding criterion in adoption and custody cases should continue to be the best interests of the child not the best interests of congressional ideologues and other outside parties.
D.C. voters rejected the concept of taxpayer-financed vouchers for private schools in a 1981 referendum by a decisive margin of 9-to-1. Nevertheless, under the spurious banner of "populism," several Congressional leaders have tried to ram a voucher program aiding sectarian and other private schools down the throats of District citizens. GLAA opposes public subsidies for private schools, in part because many private schools are run by religious denominations that profess tenets hostile to the equal rights of lesbians and gay men. Diverting public school funds to private schools is merely the latest attempt at undermining public schools, a favorite hobby of bigots since Brown v. Board of Education. Private school vouchers imposed by Congress would be another wanton violation of home rule principles and, we believe, would ultimately be struck down by the courts as a violation of the Establishment Clause of the First Amendment.
Board of Education
We deplore the Control Board's de facto suspension of the District's elected Board of Education until June 2000. The 3-week delay in opening our public schools this year because of mistakes made under the direction of General Becton as well as systemic problems with the District's procurement process merely demonstrates that bumbling and inefficiency did not end with the gutting of the powers of our school board. We do not deny that the School Board acted very foolishly and irresponsibly and brought itself down by its own incompetence; but we believe that the proper solution belongs in the hands of the District's voters, not an outside party subservient to Congress. Neither, for that matter, do we believe that our intractable national problems, badly bungled by a Democratic President and a Republican Congress, should be handed over to the British Parliament to resolve, on the theory that American independence and democracy was a noble experiment that just didn't work out.
No Return to City Commissioners
Earlier this year Senator Faircloth made a proposal, which had also been floated by Control Board Chairman Andrew Brimmer, to strip the Mayor of most effective powers and to turn over most executive powers to a City Manager appointed by and responsible to a permanent Control Board. This plan, which was rightly denounced by Congresswoman Eleanor Holmes Norton, would effectively reinstate the colonial Board of Commissioners system that was both an utter failure and an insult to fundamental democratic values. The present situation, in which most powers have effectively been stripped from a controversial mayor, is not much better from a practical standpoint. Any major changes in the District government should be subjected to the approval of DC voters in a referendum rather than unilaterally imposed by Congress.
Metropolitan Police Department
Along with our allies in the ACLU, NAACP, and others, we firmly oppose a federal takeover of the Metropolitan Police Department. Home rule has had a distinct positive effect on improving relations between the police and the gay and lesbian community; by contrast, a police force directly under the thumb of Congress would quickly lose the confidence of the gay and lesbian community, not to mention that of the general community. Far from increasing long-term prospects for public safety, federalization of our police department would damage community- police relations, undermine the public trust that is crucial to successful law enforcement, and create a dangerous situation in which the police are seen as a hostile occupying force rather than as public servants who are part of the local community and answerable to the citizens and their elected representatives.
The virtual coup against home rule imposed by Congress and approved by President Clinton during the summer made a bad situation even worse. Stripping our elected officials of their duties and responsibilities does not, as we often hear, remove politics as a motivating force in the conduct of the District government. Rather, the District government has now been made beholden to national political interests, which are often distinctly hostile to District residents in general and to gay and lesbian residents in particular.
Dumping democracy in favor of what Sam Smith of The Progressive Review has dubbed "consultocracy" will solve few if any problems and is already leading to new abuses. Defying a long-established national trend towards greater openness in political decision-making, the District's new masters seem addicted to a reign of secrecy for secrecy's sake, which merely protects the guilty from the public wrath they deserve. We, the people of the District of Columbia have to be the saviors of our city, once we learn to demand that our elected officials do their jobs properly. Notwithstanding the built-in flaws of home rule and the damage done by congressional meddling fundamental political health demands that we own up to our city's extensive self-inflicted wounds. Given the reality of our constitutional status, we cannot expect to resist congressional intrusions effectively as long as District voters continue to provide such an inviting target by rewarding incompetence and irresponsibility on the part of their own leaders.