Gay-marriage opponents sue to force referendum in D.C.

By Tim Craig and Keith L. Alexander
Washington Post Staff Writers
Thursday, November 19, 2009

The decision by the D.C. Board of Elections and Ethics to block a ballot initiative to ban same-sex marriage reverberated on Capitol Hill and in the courts Wednesday as the battle continued over whether voters should have a say in the debate.

Bishop Harry Jackson, represented by lawyers from a conservative legal organization, filed suit in D.C. Superior Court to reverse the elections board's decision. The board ruled Tuesday that the proposed initiative on whether to define marriage as being between a man and a woman violates the city's Human Rights Act because it would be discriminatory toward gay men and lesbians.

In the 15-page filing, Jackson and his seven co-petitioners argue that the city's ordinances gives residents the same lawmaking power as the council, except for appropriations.

"The people of D.C. have a right to vote on the definition of marriage," said Austin R. Nimocks, senior legal counsel for the Alliance Defense Fund, the conservative legal group representing Jackson. "The D.C. Charter guarantees the people the right to vote, and the council cannot amend the charter for any reason, much less to deny citizens the right to vote."

Meanwhile, Mayor Adrian M. Fenty (D) and Council Chairman Vincent C. Gray (D) were forced to defend the elections board's decision on Capitol Hill.

At a hearing on proposed changes to the city's Home Rule Act, two Republicans on the Oversight and Government Reform Committee grilled Fenty and Gray about why the District will not allow a public vote.

Rep. Jason Chaffetz (Utah), the ranking member of the subcommittee that has oversight over District laws, noted that voters in 31 states have rejected same-sex marriage. "I'm disappointed the people are not getting an opportunity to vote on this issue," Chaffetz said.

Fenty responded that he stands by the board's opinion, which said city code prohibits a public vote on a matter protected under the Human Rights Act.

"The voters of the District of Columbia have elected a fabulous council to make those decisions," Fenty said.

Later, Rep. Brian P. Bilbray noted that his home state of California allowed its residents to vote on that state's same-sex marriage law, which they overturned. He then asked Fenty what he should tell his constituents about the District's decision not to give its residents the same right.

"What you can say," Fenty responded, "is the people of the District of Columbia have a different set of laws."

The lawsuit might be opponents' last chance to stall the District's drive toward legalizing same-sex marriage. The council is scheduled to take the first of two votes on the legislation Dec. 1. Fenty has pledged to sign the measure.

It would then have to survive congressional review. But Chaffetz said Wednesday that he does not see how same-sex marriage opponents will be able to derail the bill in Congress.

"Democrats have the House and the Senate and the presidency," Chaffetz said. "I'm going to try to fight back, but procedurally, they've got us pretty well wrapped up."

Fenty is also optimistic that the bill will become law.

"For how well this bill was drafted, I think this bill will survive," Fenty said.

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