Some observers have said the proposed constitution, as currently written, would effectively repeal a clause in a 1978 law amending the D.C. City Charter to prohibit ballot measures that would take away nondiscrimination protections, including protections for LGBT people.
The law, which has been on the books for 38 years, empowers the city’s Board of Elections to refuse a ballot measure if the measure “authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2 [the D.C. Human Rights Act].”
The draft constitution calls for retaining all existing city laws at the time D.C. converts from a city to a state except for those that are “modified” by the constitution. Since the draft constitution modifies the city’s existing law establishing a voter initiative and referendum process, sources familiar with the constitution have said the more limited wording in the constitution would prevail.
The D.C. City Council passed the Initiative, Referendum and Recall Procedures Act of 1978 at the request of LGBT rights activists, including the late gay rights leader Frank Kameny. Kameny argued that the law was needed to prevent a situation in D.C. that occurred in Dade County, Fla., a short timer earlier in which voters overturned a gay rights law at the urging of singer and Florida orange juice promoter Anita Bryant. The city of Miami is located in Dade County.
In 2010 the statute was successfully invoked by the city to prevent anti-gay advocates led by Bishop Harry Jackson to place the city’s newly passed same-sex marriage law on the ballot in a referendum calling for its repeal. The law banning discriminatory ballot measures was upheld by the D.C. Court of Appeals and the U.S. Supreme Court after Jackson and a team of conservative lawyers challenged its validity in a lawsuit.
The question of whether the proposed constitution includes a ban on discriminatory ballot measures comes at a time when most political observers believe a statehood petition accompanied by the final draft of the constitution would be dead on arrival in the current Republican-controlled Congress.
Bowser and members of the City Council have joined statehood advocates in expressing hope that chances for statehood will improve next near if Democrats retain control of the White House and gain control of Congress in the November election.
In an effort to advance statehood for the city, the D.C. Council in 2014 created the New Columbia Statehood Commission as a body charged with mapping plans to submit a petition to Congress in 2017 applying for statehood for New Columbia, the name chosen for the proposed state. The commission consists of the D.C. mayor, City Council chair, the city’s two shadow senators and its one shadow representative.
In response to an inquiry from the Washington Blade, Beverly Perry, senior advisor to the mayor and a staff advisor to the New Columbia Statehood Commission, which approved the current draft of the constitution, pointed out in an email that the draft includes language that prohibits voter initiatives “that authorize discrimination.”
Perry was referring to Article VI, Section 1a of the draft constitution, which states, “The term ‘initiative’ means the process by which the citizens may propose laws (except laws appropriating funds or authorizing discrimination) and present such proposed laws directly to the voters of the state of New Columbia for their approval or disapproval.”
Perry noted that the language in this section would ban initiatives that propose new laws with anti-LGBT provisions.
But she acknowledged that Section 1b of Article VI in the draft constitution establishes a referendum process for repealing laws that does not include any restrictions on the repeal of anti-discrimination laws such as the D.C. Human Rights Act, which prohibits discrimination against LGBT people and other minorities.
Section 1b states, “The term ‘referendum’ means the process by which the voters of the state of New Columbia may repeal acts of the House of Delegates. This provision shall not apply to emergency acts, acts levying taxes, acts appropriating funds or advisory referenda.”
The draft constitution creates a 13-member House of Delegates as the new state’s legislative body. Upon approval of statehood, the D.C. mayor would automatically become governor of the state and the City Council chair would become speaker of the House of Delegates.
In her statement to the Blade, Perry said, “Pending before the New Columbia Statehood Commission for its consideration are proposals which confirm that referenda may not promote discrimination by repealing anti-discrimination legislation.”
She did not reply to a Blade follow-up question asking whether she and Bowser expect the Statehood Commission to approve the proposals for new language in the constitution banning discriminatory referenda.
D.C. Shadow Sen. Paul Strauss, who is a member of the five-member Statehood Commission, said he believes the commission will approve such a change when it votes on the final version of the constitution later this month.
“This issue was discussed widely by delegates to the convention, and I expect that language banning discriminatory initiatives [and referenda] will be included in the final bill,” Strauss told the Blade.
He was referring to a statehood constitutional convention held June 17-18 in which all city residents were designated as delegates and invited to propose changes in the draft constitution.
“That provision is indeed crucial,” said Rick Rosendall, president of the Gay and Lesbian Activists Alliance, in referring to language in the constitution banning discriminatory ballot measures. “Basic rights should not be subjected to plebiscite,” he said.
Veteran D.C. gay activist Peter Rosenstein, who, along with Rosendall advocated for the city’s marriage equality law in 2009, called on the Statehood Commission to add a nondiscrimination restriction to the referendum process.
“I believe the new constitution must contain language that would ban any ballot measures that would restrict people’s rights,” Rosenstein said. “The ‘human rights’ restriction on initiatives and referendums that exists in the D.C. Charter must be a part of the initiative and stated in the constitution,” he said.
Under plans established by the Statehood Commission earlier this year, the constitution must be completed no later than June 30 to give the D.C. Council enough time to approve it along with a statehood referendum resolution. That resolution, considered an advisory measure, must be submitted to the D.C. Board of Elections by July 8 in order for the constitution and statehood proposal to be placed on the ballot in a referendum for the Nov. 8 general election.
If approved by voters, the statehood proposal and constitution will be presented to the new president and Congress in January 2017, according to plans approved by the Statehood Commission.
Under the U.S. Constitution, Congress has the authority to approve the admission of a new state by a simple majority vote in both the House and the Senate. However, most Capitol Hill observers say a 60 percent majority vote would be needed in the Senate to break a filibuster expected to be waged by opponents regardless of whether the Democrats or Republicans control that chamber.
In a related development, gay activist and mayoral aide Jim Slattery, in his role as a member of the Mayor’s Advisory Committee to the city’s Office of LGBTQ Affairs, called on the Statehood Commission to change the draft constitution to add gender-neutral pronouns throughout the document.
“Our read of the draft revealed a lack of representation and that was that language as currently drafted throughout the constitution does not reflect today’s reality that all gender identities must be specified and respected,” Slattery said in testimony before the June 18 session of the constitutional convention.
“We believe that language matters, and that by saying ‘men or women,’ or ‘his or her(s),’ versus ‘people,’ or ‘they or their(s),’ the commission, while not intending to do so, is reinforcing gender binaries and thus making people who do not fall into one of those categories feel invisible,” he said.
“It is the committee’s desire to ensure all of the District of Columbia’s LGBTQ community not only feel included, but are included. And, as such, we ask that each instance in the draft constitution be amended to reflect that request,” he said.