By Tim Craig
Washington Post Staff Writer
Thursday, January 7, 2010; B02
Republican congressional leaders have joined local activists in a court fight to allow voters to decide whether same-sex marriage should be legal in the District, underscoring the continued uncertainty surrounding the issue.
Same-sex marriage supporters and opponents faced off in D.C. Superior Court for a hearing Wednesday on whether the city should be required to allow a ballot initiative that would define marriage as being between a man and a woman.
Thirty-nine GOP legislators, including 37 members of the House and two senators, James M. Inhofe (R-Okla.) and Roger Wicker (R-Miss.), have filed an amicus brief supporting a public vote on the issue. The House members include Minority Leader John A. Boehner (Ohio) and Minority Whip Eric Cantor (Va.).
The filing asserts that the D.C. Board of Elections and Ethics exceeded its authority by ruling twice that a public vote would discriminate against gay men and lesbians.
The court challenge comes as the Democrat-controlled Congress begins to consider whether to allow D.C. Council legislation legalizing same-sex marriage to become law. The measure has been signed by Mayor Adrian M. Fenty (D).
"As members of the District's ultimate legislative body, amici are concerned about the extent of the District's delegated legislative authority, the preservation of Congress's constitutional authority, and the interpretation of home rule," the brief states.
Same-sex marriage supporters and some D.C. Republicans expressed outrage over the federal lawmakers' decision to become involved in the court challenge.
Sultan Shakir, a regional field director for the Human Rights Campaign, noted that many House Republicans have long argued against giving District residents full voting rights in Congress.
"It is ironic that nearly all of the 39 representatives and senators that signed the brief have done everything in their power before to deny voting rights to D.C. residents," Shakir said. "I don't know if they have had a sudden change of heart on D.C. voting rights or, more likely, they are just playing politics and once again meddling in home rule."
A spokesman for Cantor did not return calls seeking comment.
The court brief was filed even though several D.C. GOP leaders, including local party Chairman Robert J. Kabel, had asked national Republicans to stay out of the controversy.
"The Republican Party I am a member of is dedicated to allowing local rule and respecting the thoughts of individuals," said Kristopher J. Baumann, a local GOP activist who is also active in the Fraternal Order of Police. "I find it ironic they would come out squarely against the wishes of the local party."
Paul Craney, executive director of the D.C. Republican committee, declined to comment.
Same-sex marriage opponents, however, said their rights are the ones being violated.
In two rulings since June, the election board has said a referendum cannot be held because the 1977 Human Rights Act protects gays and other minority groups from discrimination.
But Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, and other opponents note that the provision of the law in question was crafted in 1977, long before same-sex marriage was an issue.
Council member Mary M. Cheh (D-Ward 3), a constitutional law professor at George Washington University, said she thinks same-sex marriage opponents could prevail in court.
"I certainly don't think it's a frivolous claim," said Cheh, one of 11 council members who voted to legalize same-sex marriage. "I would hope, obviously, it doesn't come out that way . . . but in these kinds of things, there is always an opportunity for people to make arguments."