Rights of Passage: Polls show Catania?s gay marriage legislation would be strongly endorsed by D.C. voters. Credit: Darrow Montgomery

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It’s a good thing that the people of Topeka, Kan., never got to vote on where little Linda Brown went to school in the early 1950s. If given the opportunity, they would have voted in support of her segregated education. But when that very question came before the Supreme Court in 1954, the panel handed down the famous Brown v. Board of Education decision, which desegregated public education in the United States.

Civil rights, it’s said, should never be left to the masses. They’re too prejudiced, too prone to trample the disadvantaged.

That principle of American democracy has made an appearance of late in D.C. politics, in connection with same-sex marriage. This past spring, the D.C. Council voted to recognize out-of-state gay marriages, and At-Large Councilmember David A. Catania told LL last week that he plans “very soon” to introduce a bill authorizing full marriage rights.

In response, anti-gay-marriage forces have taken to advocating for a ballot initiative on the matter. They’re hoping for a 2010 repeat of last year’s California drama, in which a majority of voters rebuffed that state’s Supreme Court decision legalizing same-sex marriages. Out-of-town forces are already massing, eager to turn the nation’s capital into a high-profile battleground, with the lead carpetbagger, suburbanite Bishop Harry Jackson, deploying quasi-apocalyptic rhetoric to describe the issues at stake.

That has prompted the civil-rights protestations of marriage-equality activists, fearful of a long, divisive, potentially violent campaign.

Though LL loves the Constitution and deplores majoritarian tyrannies, he has been wondering: Maybe there is one instance where you put civil rights up to a vote. And that circumstance is when civil rights would win. In a blowout.

At least two polls support this prediction: An early July survey [PDF] of wards 1, 3, and 6 sponsored by leading local business types found that 76 percent of the 1,835 registered Democrats polled would support a council bill to legalize gay marriage. And, yes, those are three particularly white and liberal wards, but a lesser-known poll—done in the spring at the behest of the Human Rights Campaign, a national gay-rights advocacy group—indicated strong citywide support. According to sources who have seen the poll results, around 65 percent of respondents across all eight wards support legal gay marriage.

In other words, it would be a landslide.

Now, it’s probably not going to happen. For one thing, precedent has been set. When Jackson et al. tried to force a referendum on the marriage-recognition bill earlier this year, that prompted the Board of Elections and Ethics to rule that questions of same-sex marriage were matters covered by the city’s Human Rights Act and thus ineligible for the ballot. A challenge to that decision ended up in the hands of Superior Court Judge Judith E. Retchin, who ruled quite broadly that the referendum would indeed be discriminatory.

So when the new initiative comes again to the BOEE, the board will essentially have a cut-and-paste job in denying its suitability for the ballot.

The issue is almost certain to end up, however, in the D.C. Court of Appeals. With time running out, the anti-gay-marriage forces chose not to proceed with a hasty appeal of Retchin’s decision—probably smart, since a sloppy argument to that body might well have removed from their legal arsenal their best weapon: the 1995 Dean v. District case [PDF]. That decision held, among other things, that because traditional man-and-woman marriage was embedded throughout city law, the Human Rights Act could not be construed to apply to gay marriage.

Dean might not be long for the law books. In the ensuing 14 years, there have been plenty of developments that probably mean its demise: For one thing, the appeals court has changed. None of the judges that sat on the panel that decided that case are still active, and eight of the court’s nine judges have turned over since the decision was handed down. (Five of them, however, are George W. Bush appointees.) More crucially, gay activists have spent the time since Dean dismantling the rationale behind the decision. The D.C. Council has made virtually every other reference in city law to human couplings gender-neutral rather than “husband and wife.” Retchin’s ruling, in fact, held that Dean is no longer applicable.

There is another possibility: Since the D.C. Human Rights Act is a creation of the D.C. Council, the council is free to carve out an exception for a gay marriage initiative. And that’s the hope of one small coalition of community activists led by Ward 5 advisory neighborhood commissioner Bob King—have the council authorize the vote, obviating the need for any legal challenges and saving the time and expense of gathering signatures.

But that, too, is almost certain not to happen. Seven votes would be near impossible to get, and a veto-proof nine votes is out of the question. Best-case scenario for initiative advocates: Ward 5 Councilmember Harry Thomas Jr., on the hot seat with an election a year off, convinces Chairman Vincent C. Gray and at-largers Michael Brown and Kwame Brown to join him, Yvette Alexander, and Marion Barry. It’s hard to see where the seventh vote would come from.

The remainder of the council, good lefties all, would never sign on to authorize a gay-marriage vote. And there’s good reasons not to, certainly. A referendum would mean an influx of out-of-town money and hateful rhetoric. Some are wary of exacerbating the city’s racial divisions (the July business poll shows 92 percent support for gay marriage among whites, but only 41 percent support among blacks). Some fear the lead-up would see increased violence against gays and lesbians. And compromising due to political circumstance would make it harder to stand on principle against referenda in other parts of the country.

LL, however, thinks even the council’s lefties have some good reasons to support a gay marriage vote. So here’s his appeal to the rest of the council:

Precedent: The national anti-gay-marriage forces are fond of pointing out that no referendum on legalizing gay marriage has thus far succeeded. The states that have legalized the practice have done so largely through their own courts. (Three states—Maine, New Hampshire, and Vermont—have legalized gay marriage through their legislatures, though Maine voters will revisit the issue this November.) So why not embrace the opportunity to host the first popular vote authorizing marriage equality? With California pushing a repeat marriage referendum off to 2012, and barring developments in Maine, the District has an opportunity to be the first place to have its residents vote gay marriage legal, turning the tide for good in favor of equal marriage rights across the country. Sure, they’ll say D.C.’s a bastion of godless left-wingers, but the retort to that one is easy: It’s the nation’s capital.

Legitimacy: LL understands the imperatives of representative democracy—that we elect lawmakers to govern by proxy for us, giving issues of great complexity and public import the careful attention and deep study the populace at large cannot possibly muster. Gay marriage is not an issue of great complexity, but it is an issue of great division, where it matters going forward whether the losers feel they’ve gotten a fair shake. To deploy one overworn example, the country still hasn’t gotten over the divisions caused by Harry Blackmun’s Roe v. Wade opinion for a 7–2 Supreme Court. To this day, plenty of good liberals feel state-by-state legalization of abortion would have been the preferred course, saving the country from spilled blood and a poisoned political climate. Have the vote, and when gay-marriage opponents lose, they’ll have one less thing to complain about. They’ll still complain, of course—just further out on the margins.

Congress: The District dodged congressional intervention when it decided to legalize other states’ gay marriages. Resolutions aiming to overturn the law languished, and appropriations riders never made it to the House floor. But when gay couples start showing up at the Capitol steps to actually get married, and Fox News cameras are there to cover it, don’t expect the Hill to look the other way. Having a popular vote of D.C. citizens strongly supporting gay marriage would make it a whole lot harder (but not impossible) for Congress to overturn.

Spite: A figure as hypocritical and clownish as Harry Jackson demands a thorough thrashing, so why not give it to him on his own terms? His pathetic appeals to respect the democratic process—while recording a YouTube video for national Christian-right audiences imploring them to contact their congressmen to interfere in it—demand no less than a full popular-vote beatdown.

Journalistic Self-Interest: A referendum, of course, would give LL plenty of excellent column fodder for the next 14 months.

Political Potpourri

Since former parks-and-rec director Clark Ray launched his at-large council campaign last month, he seems to be having some initial trouble differentiating himself from incumbent Phil Mendelson.

Take his stance on gay rights. Mendelson’s been all but perfect on equality issues during his three terms, leaving little daylight for Ray, who is gay. His campaign mastermind, Dupont activist Peter Rosenstein, told Metro Weekly recently, “When people say Phil has been good on GLBT issues, I say of course he has, and Clark will be just as good.”

The “just as good” strategy apparently also extends to campaign signage: Ray’s yard signs have started popping up around town—including at last month’s Columbia Heights Day, where Ray and Mendelson set up tables feet from each other. There LL noticed that Ray’s materials have been done in a shade of royal blue awfully similar to the one Mendo’s used for years. Both candidates’ logos also feature star-shaped cutouts in the sign letters.

“It’s heartening that Phil’s opponent sees Phil as the standard to strive for,” says Mendelson chief of staff Jason Shedlock. “Now if he starts to grow a mustache, things will really start to get weird.”

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