Oct 30, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

The D.C. Board of Election & Ethics heard a flood of support Monday for a proposed voter initiative to ban same-sex marriage in the city, with far more people speaking for than against the idea.

Those who signed up to ask officials to approve the voter initiative outnumbered — more than 80 to 10 — those slated to speak against placing such an initiative on the ballot.

The board called the hearing to help it decide whether a ballot measure proposed in September by same-sex marriage opponents, titled the Marriage Initiative of 2009, is allowed under the city’s election law.

Nearly 100 witnesses signed up to testify at the hearing, which was called to order less than six hours before the D.C. City Council held a separate hearing on a bill introduced by Council member David Catania to allow same-sex marriages to be performed in the District.

“We made the decision to focus on the City Council hearing [Monday] afternoon,” said Michael Crawford, chair of same-sex marriage advocacy group D.C. for Marriage. “We felt that the Board of Elections would most likely rule as it did in June, that a ballot measure attempting to ban marriage equality for same-sex couples couldn’t be held.”

In its ruling in June, the board said the city’s election law governing initiatives and referenda would not allow a referendum to overturn a separate law the City Council passed in May that recognizes same-sex marriages from other jurisdictions. The board held that such a referendum would violate the city’s Human Rights Act, which bans discrimination based on sexual orientation.

A D.C. Superior Court judge upheld the board’s ruling after same-sex marriage opponents appealed the board’s ruling to the court.

But Bishop Harry Jackson of Hope Christian Church in Maryland and a team of lawyers from Alliance Defense Fund, a conservative legal alliance, told board officials Monday that they made a mistake in their June ruling.

Alliance Defense Fund attorneys Cleta Mitchell and Austin Nimocks reiterated arguments made in June — that the board misinterpreted the election law and that existing city law requires the board to approve a marriage initiative for the ballot in 2010.

“Clearly, the people still have the right to legislate on this through an initiative,” Mitchell said. “The Human Rights Act doesn’t nullify the marriage law. The two have coincided for more than 30 years.”

Among other things, Mitchell and Nimocks argued that a 1995 D.C. Court of Appeals ruling in the case Dean v. District of Columbia held that the city’s denial at that time of a marriage license to a same-sex couple did not violate the D.C. Human Rights Act, and that the Dean ruling still applies today.

The two attorneys said Dean takes precedent over the election law’s requirement that initiatives and referendum comply with the Human Rights Act.

But gay rights attorney Mark Levine, working on behalf of the Gertrude Stein Democratic Club, wrote in a legal brief he submitted to the board that the Dean decision has been effectively overturned by legislative action taken by the City Council.