- The Washington Times - Tuesday, June 16, 2009

D.C. elections officials Monday rejected a request to put the issue of same-sex marriage before voters, creating a clearer path for city lawmakers to allow gay couples to be married in the nation’s capital.

The D.C. Council, which passed a bill last month to recognize same-sex marriages performed in other jurisdictions, is poised to consider another bill that would allow such unions to be performed in the District.

On Monday, the two sitting members of the D.C. Board of Elections and Ethics ruled that a proposed referendum on the bill passed by the council would violate the D.C. Human Rights Act (HRA), which bars discrimination based on sexual orientation.

A referendum cannot violate the act under city law.

“It is clear, then, that the board, as ‘the gatekeeper for the initiative process,’ must refuse to accept initiative and referendum measures that would thwart legislative efforts to eradicate unlawful discrimination,” the board’s 12-page opinion states.

Proponents of the referendum pointed to about 30 states in which measures defining marriage as between a man and a woman have been affirmed by voters. California voters in November amended that state’s constitution to define marriage as the union of one man and one woman. In May, the state Supreme Court upheld the measure.

Bishop Harry Jackson of Hope Christian Church in Beltsville, who led the referendum effort in the District, said proponents plan to take the issue to D.C. Superior Court “as soon as possible” and a challenge to the board’s decision is likely in the next few days.

Even if the court reverses the board’s decision, time is expiring for referendum supporters to collect the more than 20,000 valid signatures - or 5 percent of registered voters in the city - before a congressional review period on the bill ends early next month.

“My concern really is the people have not gotten a chance to speak,” Mr. Jackson said. He called the board’s decision an “insult” to voters in the D.C. area.

Debate over same-sex marriage in the District reached a boiling point last month after council members approved an amendment sponsored by Phil Mendelson, at-large Democrat, granting legal recognition to gay couples married in other jurisdictions.

Connecticut, Iowa, Massachusetts, Maine, New Hampshire and Vermont all either currently permit same-sex marriage or are set to permit the unions, the board noted in its decision.

The council’s move was seen as a precursor to members permitting same-sex marriages to be performed in the city through legislation expected later this year. Opponents, however, vowed political retribution and asked the board to bring the council’s action before voters.

In its decision, the board’s two sitting members — Chairman Errol R. Arthur and Charles R. Lowery Jr. — rejected proponents’ argument that striking down the council’s action through a referendum would not discriminate against same-sex couples because of the city’s comprehensive domestic-partnership laws.

“Heterosexual married couples whose marriages originate in other jurisdictions are not required to shed their marital status and find consolation in the fact that there is, in the District, an alternative form of union available,” the ruling states.

The board also noted the city’s efforts to remove gender-specific references in its laws and said a 1995 decision — in which the D.C. Court of Appeals ruled that a court clerk did not violate the HRA in denying a marriage license to a same-sex couple — was not controlling.

“It is clear that the referendums proposers would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation,” the board said.

The council’s bill is expected to become law in early July after a period of congressional review expires. The board’s decision was cheered by Jeffrey Richardson, president of the Gertrude Stein Democratic Club, as progress toward marriage equality.

Michael Crawford, a black gay-rights activist and head of the D.C. for Marriage project, said referendum opponents were “overjoyed” but prepared for further challenges to their cause.

“What we’re focused on is making sure the marriage recognition bill survives the congressional review period, and once that happens we can think about a full marriage bill being introduced later in the year,” Mr. Crawford said.

Mr. Mendelson and council member David A. Catania, at-large independent who is expected to introduce the full gay-marriage bill, also applauded the board.

“It is unacceptable for government to sanction discrimination on the basis of ones sexual orientation,” Mr. Mendelson said.

Mr. Jackson acknowledged that the board’s decision could create momentum for those seeking to legalize gay marriage in the nation’s capital, but that the road to the full measure would be difficult.

“I think it’s a false momentum,” he said, “and I don’t think it makes it any bit easier for them to get a full-blown marriage act passed.”

• Gary Emerling can be reached at gemerling@washingtontimes.com.

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