Jun 12, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

More than 100 people packed a D.C. Board of Elections & Ethics hearing room Wednesday as supporters and opponents of same-sex marriage presented opposing arguments regarding the validity of a proposed referendum to overturn the city’s same-sex marriage recognition law.

At issue, according to election board chair Errol Arthur, is whether the proposed referendum would cover one or more of eight restricted subject areas that are barred from going before the voters, including a proposal to raise or lower taxes or a proposal that would “unlawfully discriminate” under the D.C. Human Rights Act.

Although most of the 16 witnesses that testified at the hearing touched on the legal aspects of the issue, many of them — including Bishop Harry Jackson Jr., pastor of the Hope Christian Church in Beltsville, Md., and the lead advocate for the referendum — gave impassioned presentations on why they support or oppose the right of gay people to marry.

“They claim you can separate civil marriage and spiritual marriage, but clearly you cannot,” Jackson said at the hearing.

“It should be said that the citizens of the District should be heard on this,” he said, suggesting a voter referendum would be the only fair way to address the subject.

Last month, Jackson and six other people filed papers calling for a referendum to overturn the D.C. Jury & Marriage Amendment Act of 2009. The act, among other things, would allow the city to recognize same-sex marriages performed in other states and countries.

The D.C. Council passed the act, 12-1, and Mayor Adrian Fenty signed the measure, sending it to Capitol Hill, where it’s undergoing a required congressional review of 30 legislative days.

Under the city’s election law, opponents of the measure have until the completion of the congressional review — believed to be July 6 — to obtain approval of the referendum’s wording through the election board and to gather about 21,000 petition signatures to place to place it on the ballot in a special election.

Wednesday’s hearing represented an opportunity for referendum supporters to make their case.

“The issue before the board today is not whether same-sex marriage is good or bad, but whether this issue should be decided by the people and not just by the few,” said Brian Raum, senior counsel for the Alliance Defense Fund, a conservative legal group that represents same-sex marriage opponents across the country.

“It’s simply not the case that this would violate the Human Rights Act,” said Raum, who argued that a 1995 D.C. Court of Appeals decision, Dean v. D.C., held that same-sex marriage is not permitted under the city’s marriage statutes and is not a right granted under the Human Rights Act.

But several witnesses opposing the referendum, including Brian Flowers, an attorney representing the D.C. City Council, and Council member Phil Mendelson (D-At Large), the author of the same-sex marriage recognition law, argued that the Council has made extensive changes to the city’s marriage and family statutes since 1995, when the Dean decision was handed down.

“Seven of the eight sections of the law cited in the Dean case have been repealed by the Council,” Flowers said.

Flowers also noted that the Dean decision, which was considered a setback for same-sex marriage advocates at the time, asserted that the city’s marriage law was not intended to allow same-sex marriages because it distinguished between men and women, even though it did not specifically ban same-sex marriage.

“Because there are no longer gender-specific provisions in the marriage law, the Dean decision does not trump the Human Rights Act,” Flowers said.

Gay rights attorney Mark Levine, who testified on behalf of the Gertrude Stein Democratic Club, the city’s largest gay political organization, said the Dean decision was no longer relevant because it referred to a city marriage law that no longer exists.

Longtime gay activists Phil Pannell, a Ward 8 civic activist and Democratic Party leader, and Rick Rosendall, vice president of the Gay and Lesbian Activists Alliance, testified that the civil and human rights of LGBT people should not be a subject for popular vote.

Both said the city’s election law bars the subject of same-sex marriage rights from being placed on the ballot as a referendum.

Pannell said that as an African American, he’s aware that most of the nation’s historic advances in civil rights for blacks came about by court decisions and laws passed by Congress and the states.

“An overarching concern of any D.C. resident who believes in fairness, equality, freedom and justice should be the fundamental question of having the civil and human rights of minorities subjected to plebiscite in a ...