The question before the Board of Elections and Ethics today is whether the law passed last month by the D.C. Council recognizing same-sex marriages performed out of state is the proper subject of a referendum. To wit, the main question is whether the bill is covered under the city’s longstanding human-rights law, under which sexual orientation is a protected class.
But the debate here, in a packed second-floor hearing room at One Judiciary Square, has not stuck to those parameters.
After gaveling the hearing to order this morning, the board heard approximately 90 minutes of testimony from proponents of the referendum. They heard first from Brian Raum, a lawyer for the Alliance Defense Fund, a “legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation.”
Raum, for the most part, stuck to the question at hand, citing two cases supporting his contention that District human rights law does not apply to the marriage-recognition law. One was a New York state decision; the other was the landmark Dean v. D.C. case, which the D.C. Court of Appeals handed down in 1995. That decision, long lamented by gay marriage proponents, ruled that D.C.’s gender-neutral marriage statute in itself did not allow the city to issue gay marriage licenses. That decision Raum sees as proof that marriage is not covered.
“The referendum would not authorize discrimination,” he said. He asked the board to allow the electorate “to decide this critical issue of social policy and not allow the few to decide the issue for the many.”
Raum was followed by Bishop Harry Jackson, the minister who is leading the push against gay marriage in D.C. He began by decrying the disclosure of the fact that he recently moved to the District of Columbia. “My involvement in this process has to do with my love for D.C. and its people,” he said, before describing how he believed how “due process has been circumvented” by the council vote.
Most of his testimony, however, had to do with the propriety of the legislation itself. “I’m not against anybody’s individual rights,” he says. “But I am against changing societal structure….We’re pulling out one of the foundations of the structure.” He was joined by a fellow minister, Dale Wafer, of The Harvest church.
Giving some of the most impassioned testimony was Patrick Walker, senior pastor with New Macedonia Baptist in Ward 7. Again, he stuck to the broader issue of gay marriage itself: “Or culture is evolving, and there is a shifting sand rejecting [God’s] truth in our city.” He also called the push for a referendum “another defining moment in the District of Columbia’s history of self-determination and home rule.”
Also on the list of witnesses was Walter E. Fauntroy, the civil rights leader and former delegate to Congress who is opposing the gay marriage legislation. But he was a no-show.
Then the freak show began. One gentleman, Leroy Swailes, introduced himself as an Oxon Hill resident, though he said, “I still consider that as being D.C.” That earned him some chuckles.
Less funny was when he held up a selection of gay-themed children’s books and said, “This is a pedophile book!” and that “homosexuality means the extermination of the human race” and that ne believes in human rights “but you have to be human—-that means you have to deal with the opposite sex.”
In opposition to the referendum, At-Large Councilmember Phil Mendelson offered testimony defending the council’s procedure on the matter. In what’s likely a first for Mendelson, he seconded Dick Cheney on the matter of gay marriage generally, citing his National Press Club comments last week in support of state-by-state gay marriage legalization.
Brian Flowers, the D.C. Council’s chief attorney, refuted Raum’s interpretation of the Dean case, explaining that much of the basis of the court’s decision has changed since 1995.
Also adding testimony were Phil Pannell, the Ward 8 activist, who nodded toward the civil rights movement; Rick Rosendall of the Gay and Lesbian Activists Alliance; and Jeff Richardson of the Gertrude Stein Democratic Club.
UPDATE, 3:40 P.M.: Sorry for missing details: LL had to cut his piece short to go to the Holocaust Museum.
The board concluded the hearing after about an hour of testimony from the opponents of the referendum; Raum and Jackson were given opportunities to rebut prior testimony; Raum spent most of his time laying out his case why Dean means the Human Rights Act isn’t applicable to marriage.
Throughout the hearing, most of the questioning was done by board member Charles Lowery and board attorney Kenneth McGhie. Board chair Erroll Arthur also chipped in a few queries. If the questioning was any guide, all three men express some skepticism of the proponents’ case that marriage isn;t covered by the human rights laws.
With only two of three members currently seated (a third nominee, Omar Nour, is amid council conformation), the referendum supporters need both Arthur and Lowery to take their side. A 1-1 split, McGhie says, means no referendum.
Time is running out on the referendum supporters: They now have less than a month to collect tens of thousands of legitimate signatures. They can;t do that until the board rules. Arthur declined to say when a decision would be forthcoming, but expect it to be a matter of days, not weeks.
If the board accepts the referendum, a meeting would be convened within days to hammer out the ballot language. If it rejects the referendum, the proponents would have 10 days to petition Superior Court for redress.