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Same-sex marriage foes vow court fight
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By Tim Craig
Washington Post Staff Writer
Tuesday, October 27, 2009

Opponents of same-sex marriage are preparing to turn to the courts if the D.C. Board of Elections and Ethics denies their request for a ballot initiative next year on whether marriage should be limited to one man and one woman.

On a day in which hundreds of residents spoke out on the issue, same-sex marriage opponents said they are preparing a multi-prong legal strategy to tie up the issue in the courts for months.

In addition to fighting for a public vote on same-sex marriage in the District, the opponents say they will argue in court that the federal Defense of Marriage Act banning gay marriage applies to the city. Several national conservative organizations plan to support the effort, guaranteeing that local opponents have the money and publicity to wage a vigorous battle.

"This is the whole ballgame right here," said Brian Brown, executive director of the National Organization for Marriage, which has been at the center of the battle over same-sex marriage in California and other states. "We will go to the higher courts. . . . The other side better be careful what they wish for."

The prospect of a legal battle over whether the District should legalize same-sex marriage comes as the D.C. Council began considering a bill that says any two people may marry "regardless of gender."

More than 100 people showed up Monday night for a legislative hearing on the bill, which was co-sponsored by 10 of council's 13 members.

Several same-sex couples broke into tears as they talked about the prospect of being allowed to get married. Marisa Levy went to the hearing to support her gay brother.

"Pass this bill and finally make my brother's partner of 15 years my brother-in-law," Levy said.

Residents opposed to the bill, which the council will likely pass by Christmas, offered equally emotional testimony. At times, they began shouting at council members.

"I am just outraged at this hearing. I think it's a joke," Kathryn Pearson-West of Northeast said. "This is a mockery for democracy."

Earlier, the elections board heard nearly five hours of testimony on the request by Stand4MarriageDC to put an initiative on the ballot next year stating that "only marriage between a man and a woman is valid and recognized in the District of Columbia."

The elections board has to decide whether the initiative would violate the rights of the city's gay and lesbian residents. D.C. law prohibits a vote on a matter covered by the 1977 Human Rights Act, which outlaws discrimination against gays, lesbians and other minority groups.

The board denied a referendum this year on a council bill recognizing same-sex marriages performed in other states, saying in an opinion it "would authorize discrimination."

Despite that earlier ruling, referendum supporters argued strenuously at Monday's hearing that the Human Rights Act should not be used to prevent a public vote on whether marriage laws should be rewritten, equating their demand with the city's drive for voting rights.

"We have a city council who has made it clear their goal is to put this issue before themselves, not the community, not the taxpayers, not the citizens," said Carolyn Steptoe, an advisory neighborhood commissioner in Ward 5. "They want to put it before themselves even as they complain their voting rights [in Congress] are being denied."

Gay rights activists countered that the elections board has little choice but to reject the request.

"You are required to uphold the law," Mark Levine, an attorney who was representing the Gertrude Stein Democratic Club, told board members. "Even if you believe God should strike down gay people, you have an obligation to follow the law."

Attorneys for several local and national same-sex marriage opponents are laying the groundwork for a legal challenge if the board blocks their request for an initiative.

Cleta Mitchell, an attorney for Stand4MarriageDC, told the board that the city is still governed by a 1995 appellate court decision saying the District need not recognize same-sex marriage.

In Dean v. the District of Columbia, the D.C. Court of Appeals ruled that the Human Rights Act did not apply because family law covers a husband and a wife.

"Until the appellate court specifically overturns Dean, that is still the law," Mitchell said. "The Human Rights Act does not void the marriage statute, and that is what this board would be saying if they deny us our petition rights."

Same-sex marriage supporters counter that the Dean decision no longer applies because the D.C. Council has made many laws gender-neutral since 1995.

Vincent P. McCarthy, senior counsel for the American Center for Law and Justice, said he is prepared to argue in court that the District must abide by the Defense of Marriage Act, which Congress approved in 1996.

"The federal government has jurisdiction over the District of Columbia, so DOMA covers the District of Columbia," McCarthy said.

Peter Rosenstein of the Campaign for All D.C. Families, which supports same-sex marriage, said his group is prepared for a legal battle. Rosenstein said he's confident a court will rule the federal act will not apply because the District was given the ability to make its own laws as part of Home Rule.

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