By Tim Craig
Washington Post Staff Writer
Thursday, June 11, 2009
The battle over same-sex marriage in the District moved to the city election board yesterday as supporters and opponents packed into a hearing room to debate whether the city should put the issue on the ballot.
The D.C. Board of Elections and Ethics, which currently has two members and one vacancy, will determine whether voters should have a chance in a referendum to block a bill legalizing same-sex marriages performed elsewhere.
The board heard four hours of testimony yesterday and is expected to make a decision Friday or early next week.
Both sides presented legal and political arguments about whether the same-sex marriage issue should be in the hands of voters or the politicians who represent them.
"All we are asking for is a public debate," said the Rev. Dale Wafer, a supporter of the referendum and a minister with the Harvest, a religious community in Northeast Washington. "We are not afraid of a debate. All we want is a public debate."
Philip E. Pannell, a longtime gay rights advocate and Democratic Party activist, accused referendum supporters of "advocating for a popular vote that will give vent to public homophobia."
"Unfortunately, in our society, it is still acceptable in many polite circles to vilify and victimize gay, lesbian, bisexual and transgender people," Pannell testified. "Hopefully, we in the District of Columbia will not have to be subjected to a campaign of misunderstanding, intolerance, fear, bigotry and hatred toward a minority group."
The battle over same-sex marriage pits a coalition of largely African American ministers against the city's politically active gay community.
In making its decision, the election board has to determine whether the proposed referendum would violate a District law that says a ballot initiative cannot violate the city's Human Rights Act.
The act, approved in 1977, prohibits discrimination against gays and lesbians as well as other minority groups.
Council member Phil Mendelson (D-At Large), who sponsored the bill to recognize same-sex marriages performed elsewhere, said the District would be treating gay and straight couples differently if the city recognized some out-of-state marriages but not others.
"What do we do with [same-sex] marriages performed in other states if we allow the referendum and it passes?" Mendelson asked. "A legitimate couple married in another state would be considered less when they came here, and that would be discriminatory."
The council passed the bill in May, and the mayor signed it. It is undergoing congressional review.
Referendum supporters say Mendelson's bill is the first step toward legalizing all gay marriages in the District, an assertion that council members don't dispute. The supporters point to a 1995 court case that denied two men the right to marry in the District.
In Dean v. the District of Columbia, a three-judge panel of the D.C. Court of Appeals ruled that the city's Human Rights Act did not extend the right to marry to same-sex couples. At that time, gay marriage was illegal across the country.
"The District's Human Rights Act was never intended to suggest maintaining marriage between anything other than a man and woman," said Brian Raum, an attorney for the Arizona-based Alliance Defense Fund, who specializes in fighting same-sex marriage.
Raum is representing Bishop Harry Jackson, senior pastor of Hope Christian Church in Beltsville and the main proponent of a referendum.
Gay rights advocates, backed by attorneys for the D.C. Council, countered that the Dean ruling might be obsolete.
In the Dean ruling, the judges cited a D.C. family law that explicitly referred to husband and wife. Since then, the council has revised the code to make such references gender-neutral.
"What could not be discrimination in 1995, based on sexual orientation, can be discrimination today," Mendelson said.
Because of the vacancy on the three-member election board, Errol R. Arthur and Charles Lowery Jr. are the only sitting members. If there is a split decision, the referendum will not be allowed to go forward, although proponents vow to take the issue to court.
During questioning of witnesses, Arthur and Lowery appeared sympathetic to arguments that a referendum might run counter to the Human Rights Act. They stressed that members of the public can submit written testimony until 5 p.m. today.
Both sides are applying pressure.
"We are not going away," referendum supporter Corinthia R. Boone of the International Christian Host Coalition of Washington told the board members yesterday. "Generations will either benefit or suffer from what you do. Please, we are in America. Let the people vote."