Jun 19, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

The D.C. Board of Elections & Ethics this week denied a petition seeking a voter referendum to overturn a city law recognizing same-sex marriages from other jurisdictions, saying such a referendum would violate the city’s Human Rights Act.

“Based upon the written and oral opinions submitted to the board regarding the propriety of the referendum, as well as its own research and consideration of the matter, the board now concludes that the referendum does not present a proper subject of referendum because it would authorize discrimination prohibited under the Human Rights Act,” the board says in a 12-page decision that was released Monday.

The election board’s action represents a victory for gay rights advocates, who strongly opposed the referendum, and at least a temporary defeat for the pastor of a Prince George’s County, Md., church who emerged as the lead backer of the measure.

Bishop Harry Jackson Jr., pastor of Hope Christian Church, called for a referendum on grounds that marriage in the nation’s capital should be restricted to a union only between a man and a woman.

Jackson and six others who filed the referendum proposal said they would appeal to the courts a decision against them. Under election law procedures, the D.C. Superior Court is authorized to hear an expedited appeal on the matter.

Diana Banister, a spokesperson for Jackson and others who filed the referendum papers, said attorneys filed legal documents appealing the election board decision Wednesday morning. A copy of the appeal couldn’t immediately be obtained.

The board’s ruling against the referendum is being viewed as a near crushing blow to its supporters, even if they win their appeal, because they must still obtain final approval from the board of its wording and gather about 21,000 petition signatures from registered D.C. voters by July 6 in order to get the measure on the ballot.

July 6 is the date when Congress is expected to complete its review of the same-sex marriage recognition law that the Council passed and Mayor Adrian Fenty signed. Under the city law overseeing referenda, all of the requirements for placing a referendum on the ballot, including the petition signatures, must be completed before the end of the congressional review, which takes 30 legislative days.

If referendum requirements are not met by that date, and provided that Congress doesn’t act to block the same-sex marriage measure, it automatically becomes law. The Democratic controlled Congress has so far not taken any steps to block the measure.

The election board’s decision Monday came less than a week after supporters and opponents of same-sex marriage presented their views before a public hearing called by the board to hear arguments on whether a referendum on the subject was legal.

Jackson argued that the issue should not be left to the D.C. City Council, which voted 12-1 in favor of the same-sex marriage recognition measure on May 5. He said District residents should be allowed to decide the issue and predicted the law would be handily defeated if a referendum were held.

D.C. Council member Phil Mendelson (D-At Large), the lead sponsor of the same-sex marriage recognition measure, applauded the election board’s ruling in a statement Monday.

“I completely agree with today’s decision of the Board of Elections & Ethics,” he said. “As I and many others stated when we testified in front of the board last week, civil rights should not be subject to a referendum.

“I applaud this decision, as it was based firmly in the tradition of the District’s own progressive Human Rights Act,” he said. “Recognizing marriages lawfully entered into in other jurisdictions is logical and just.”

In its decision to deny the marriage referendum, the board sounded a note that some might consider ironic when it pointed out that in the late 1970s, when the D.C. Council first approved legislation exempting the Human Rights Act from initiatives and referenda, it was then-Council member Marion Barry who led the effort to do so.

Last month, when the Council approved the same-sex marriage recognition bill, Barry was the lone member to vote against it.

“When the enabling legislation required to implement the [City] Charter Amendments Act was being considered by the Council, there was an extensive debate as to whether to exclude laws concerning human rights from the initiative and referendum process,” the board wrote in its decision.

“Ultimately, those in favor of the human rights exclusion were victorious; the Council approved an amendment — offered by Council member Marion Barry — to the Charter Amendment Act’s enabling legislation that reflected the Council’s intent that ‘the initiative and referendum process would never ...