Yesterday I was present in a crowded room full of reporters, gay marriage supporters, and anti-marriage equality activists to hear testimony to the DC Board of Elections and Ethics pertaining to the proposed referendum on recognizing out-of-state gay marriages in the District. Opponents of gay marriage hope a referendum will result in overturning a recently passed DC law recognizing gay marriages performed out of state. At issue is DC's comprehensive human rights law, which says that laws that would have the purpose or effect of discriminating against people based on "race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business." Yeah, all that.
Proponents of the referendum included Bishop Harry Jackson, often the religious right's point man on such issues in communities of color, as well as Brian Raum, a lawyer for the Alliance Defense Fund, a Christian legal group founded by James Dobson, among others. Local leaders for the anti-gay marriage side like Rev. Patrick Walker were also present. Gay marriage opponents made a number of arguments: They raised the specter of children being exposed to homosexuality, argued that District voters were disenfranchised by the City Council, and made the usual religious arguments against gay marriage.
The problem for the anti-equality side is that none of those things are at issue. The Board is considering a very narrow question: Would banning recognition of same-sex marriages discriminate against same-sex couples? Jackson and Walker argued that since laws against polygamy aren't considered discriminatory, laws against gay marriage shouldn't be either. Most of the gay marriage opponents were respectful, going out of their way to greet and converse with gay marriage supporters -- but they should have vetted the witness list. One individual, wearing a priest collar and a t-shirt comparing gays to animals, testified that gays were "inhuman" and "pedophiles," and referred to gay families as "anti-Christ families." That pretty much threw the whole "non-discrimination" argument out the window.
Testimony on both sides was punctuated by dueling applause from gay marriage supporters and opponents. But despite the emotional testimony from both camps, the real argument was taking place between the lawyers: Raum argued the anti-marriage equality position based on a 1995 case, Dean v. District of Columbia, in which a DC Court ruled that the city wasn't discriminating against a same-sex couple by denying them marriage licenses. But Mark Levine, (lawyer and radio host) who was there on behalf of the Gertrude Stein Club, argued that the court at the time was exercising judicial restraint by simply saying that only the City Council, rather than the courts, could legalize same-sex marriage. Levine also points out that it made sense for the court to rule that restricting marriage in 1995 wasn't discrimination, because there were no gay couples to discriminate against. So while the referendum might have been legal prior to other states accepting gay marriage, it no longer would be.
There are only two voting members currently on the board, and they suggested a decision could be made by early next week. It's hard to guess how they'll rule: On the one hand there is political pressure from a vocal segment of the District that is opposed to gay marriage -- on the other, the Board is considering whether the proposed law would discriminate against same-sex couples, not on whether citizens of the District were disenfranchised. So you have a reversed dynamic from California: In DC, the law appears to be on the side of marriage equality.
Richard Rosendall, a lawyer for the GLAA, dismissed the idea that District residents were disenfranchised. "They talk as if when our democratically elected 13 member DC Council enacts legislation they don’t like somehow it’s anti-American in the case of gay people seeking equal marriage rights, and only in that instance," Rosendall said. “This isn’t ancient Athens, we’re somewhat bigger than ancient Athens.”
I'm not sure what the appeals process was in ancient Athens. But there will be a long, lengthy one no matter how the board ultimately rules.
-- A. Serwer
