Same-sex marriage opponents Rev. Anthony Evans, left, and Bishop Harry Jackson talk Tuesday outside the D.C. Court of Appeals. A case before the court could force the city to put its same-sex marriage law before voters in a ballot initiative. (Washington Blade photo by Michael Key)

In what legal observers called an unusual development, the full nine-judge D.C. Court of Appeals heard oral arguments Monday for a lawsuit seeking to force the city to put its same-sex marriage law before voters in a ballot initiative.

At issue is whether a 1970s amendment to the D.C. City Charter that allows voters to pass or repeal laws through an initiative or referendum can legally include a provision banning such ballot measures if they would take away rights from minorities.

The City Council added the provision to the charter amendment at the request of gay activists. The effort by same-sex marriage opponents to challenge the provision represents the first time it has been seriously questioned in more than 30 years.

All but two of the judges asked pointed questions that appeared to challenge the legal arguments presented by the lawyers on both sides of the case, taking on the role of devil’s advocate.

“The court asked a variety of probing questions, as they should have,” said Thomas Williamson, an attorney with Covington & Burling, which filed a friend of the court brief on the side of the D.C. government in defense of the law restricting ballot measures.

“But it seemed that a consistent theme in their questions was a sensitivity to the importance of protecting civil rights of a vulnerable minority, which is really what this case is about here — the right of same-sex couples to enjoy marriage and have the same status for their marriage as all other citizens of the District,” Williamson said.

Five of the nine judges, including Chief Judge Eric Washington, were appointed by President George W. Bush. President Bill Clinton appointed the remaining four.

Williamson and local gay rights attorney Mark Levine said it’s unusual for the Court of Appeals to hear a case for the first time en banc, or with all of its judges, instead of its usual practice of assigning a three-judge panel to hear a case.

One significant outcome of an en banc case is that the full court has the authority to overturn previous decisions it handed down either en banc or through a three-judge panel if the previous rulings would interfere with its intentions in a current case. Williamson said one possible ruling the court might overturn in the current case over the D.C. same-sex marriage law is the 1990s case known as Dean v. the District of Columbia.

In that case, the appeals court rejected a claim by a gay male couple that the city’s existing marriage law allowed for the issuance of marriage licenses to same-sex couples because of the Human Rights Act’s ban on discrimination based on gender and sexual orientation. At that time, the court ruled that the marriage law restricting marriages to opposite-sex couples took precedence over the Human Rights Law.

In recent years, gay rights attorneys and D.C. government officials have argued that the Dean decision was no longer relevant because the City Council had since made sweeping changes to the marriage law, providing extensive rights, including marriage, for same-sex couples.

Austin Nimocks, legal counsel for the Alliance Defense Fund, a Christian litigation group, argued the case Tuesday for Bishop Harry Jackson and other local opponents of same-sex marriage who filed the lawsuit seeking a ballot measure to overturn the gay marriage law.

Jackson initially filed his lawsuit before the D.C. Superior Court last fall, after the D.C. Board of Elections & Ethics rejected his application for a voter initiative calling for defining marriage in D.C. as the union between one man and one woman. The board ruled that the initiative would violate the provision added to the referendum and initiative law that bans such ballot measures if they would result in discrimination prohibited by the Human Rights Act.

The effect of the initiative, if approved by voters, would be to repeal the same-sex marriage law that the City Council passed and Mayor Adrian Fenty signed in December. The law took effect March 3 after it cleared a required 30 legislative day review by Congress.

Jackson then filed suit seeking to overturn the election board’s decision. In January, Superior Court Judge Judith Macaluso upheld the election board’s decision, saying the law cited by the city to ban such ballot measures was valid.

Tuesday’s hearing before the D.C. Court of Appeals came about after Jackson and his supporters appealed Macaluso’s ruling.

Nimocks sidestepped reporters’ questions about the appeals court judge’s comments, including those who challenged his arguments. He said after the hearing that his side is correct in claiming the 30-year-old provision in the D.C. Charter barring certain ballot measures violates the full District of Columbia Charter.

The city’s charter is considered to be equivalent to a state constitution, and legal experts say all laws enacted by the City Council and signed by the mayor must be consistent with any restrictions or limits set by the charter.

Nimocks argued before the court Tuesday that the charter amendment that created the city’s voter initiative and referendum system sets just one restriction on such ballet measures: a ban on voters directly deciding on matters related city funding or taxes.

He said the charter amendment, which the City Council passed and Congress approved, doesn’t allow further restrictions that would prevent a ballot measure seeking to curtail minority rights.

“The people have a right to vote that’s guaranteed by the District of Columbia Charter,” he said. “And the City Council cannot amend the charter. They cannot do anything to undermine the people’s right to vote.”

In his written brief, Nimocks also argued that the Dean case was still a factor that the appeals court should consider.

Todd Kim, the D.C. Solicitor General who argued on behalf of the city, told the court the charter amendment establishing the initiative and referendum system gives the City Council authority to make some changes in the system to carry out its “purpose.”

Kim noted that the Council wrote the charter amendment and that part of the purpose in creating it was to place certain restrictions consistent with longstanding city policy, including policies related to rights of minorities. The D.C. Human Rights Act, which was in place at that time, included a ban on discrimination based on sexual orientation, Kim said, indicating the city’s overall policy and purpose was to protect the rights of gays and lesbians along with other minorities.

He also noted that Congress approved the charter amendment through its normal 30 legislative day review, further solidifying its status as a valid law.

In another development that pleased gay activists attending Tuesday’s appeals court hearing, Judge Phyllis Thompson, a Bush appointee, pointed out that D.C. voters approved a statehood constitution in the early 1980s that included a provision banning initiatives and referenda that would take away rights of minorities, including gays.

Thompson appeared to be challenging Nimocks’ arguments that voters should have the right to decide on the gay marriage law by noting that D.C. voters approved the ban on ballot measures seeking to take away rights for gays and others.

Legal experts have said the statehood constitution passed by voters had no legal standing because D.C. statehood — which many D.C. residents favored in the 1980s — could not come about without approval by Congress. Congress never took the proposal seriously.

But Levine and Williamson said Thompson’s decision to raise the issued shows that she, and possibly a number of her colleagues on the appeals court, are sympathetic to the city law banning ballot measure that would take away rights, including the right of same-sex couples to marry in D.C.

“Marriage equality has already brought critical rights and responsibilities to hundreds of same-sex couples, yet outside forces are determined to undo our progress,” said Aisha Mills, president of the Campaign for All D.C. Families, one of the local groups that lobbied for a same-sex marriage law.

“As the courts have uniformly recognized in upholding D.C.’s comprehensive anti-discrimination laws, no one should have to have their marriages — or any of their civil rights — put to a public vote,” she said.

Jackson was among more than a hundred spectators to attend Tuesday’s appeals court hearing. The spectators appeared to be equally divided between same-sex marriage opponents and supporters, with many of the city’s prominent LGBT activists in attendance.

In addition to Washington and Thompson, the appeals court members include Judges Vanessa Ruiz, Inez Smith Reid and Stephen Glickman, who are Clinton appointees, and Judges John Kramer, John Fisher, Anna Blackbourne-Rigsby and Kathryn Oberly, who are Bush appointees.

Court observers say a decision on the marriage case could come anytime between the next several months and more than a year. The losing party could appeal the case to the U.S. Supreme Court, but many legal observers believe the high court would be unlikely to take the case.

Of course, there were such calls for same-sex marriage years before a young and powerful group called the Human Rights Campaign helped to make this a nationwide issue. I wish I could say that these efforts are what have brought us to this day in which same-sex couples can legally register for marriage licenses in the District of Columbia.

I wish I could say that Harry Hay, Barbara Gittings, Frank Kameny and others laid the foundations for such a possibility.

I wish I could say that it was the tireless advocacy of GLAA’s Bob Summersgill, Craig Howell, Barrett Brick, Kevin Davis and Rick Rosendall, working with the support of the Gertrude Stein Democratic Club’s Kurt Vorndran, Bradley Lewis, and Mario Acosta and the support of the DC Coalition’s Carlene Cheatam, Phillip Pannell and Sterling Washington to agree with the strategic decision to incrementally bring these rights.

I wish I could say it was the Foundation for All DC Families’ Peter Rosenstein, Cornelius Baker, Andy Litsky and Steve Gorman, who quietly raised the funds to conduct a poll on the issue five years ago. Or the late Wanda Alston, who organized the community to defeat a proposed ballot referendum back in 2004. I will always fondly remember Wanda’s passion at that first meeting in the 16th Street church basement.

I wish I could say it was because of our LGBT business owners like Deacon Maccubbin, Eric Little, Ed Bailey, Babak Movahedi, David Franco, Eric Hirschfield and David Lewis who generously offered their venues and financial backing.

I wish I could say it was the local Democratic Party, the Statehood Green Party, the leadership of the local Republican Party or the numerous ANC’s and neighborhood associations that endorsed and lobbied for marriage equality.

I wish I could say it was the product of former D.C. Council Chair Arrington Dixon, who first proposed such legislation more than 30 years ago or Council members Phil Mendelson and David Catania who worked together to create today’s bill or Council Chair Vincent Gray for his stewardship or Mayor Fenty for his signature. Or the nearly 300 people who came to testify at the longest Council hearing ever held in the District of Columbia.

I wish I could say it was because of the thousands upon thousands of DC LGBT voters and our straight allies who helped elect these progressive politicians.

I wish I could say it was because of the commitment from new leaders like Jeffrey Richardson, Chris Dyer, David Mariner, Brian Watson, Paquita Wiggins and Tim Mahoney or DC for Marriage’s Michael Crawford, Lane Hudson, Hilary Treat, Donald Hitchcock, Rev. Christine Wiley, Rev. Rainey Cheeks, Rev. Monique Ellison and Nick McCoy who educated our residents and faith communities.

I wish I could say it was because of the men, women and couples who simply have had the courage to come out to their friends, families and workplaces in their daily lives — an individual act that means more than all those listed above.

I can’t say these things because, unfortunately, the residents of the District of Columbia are beholden to the will of Congress. If the D.C. government had true legislative autonomy, marriage equality would have become law in this progressive city years ago. I strongly believe that any earlier attempt to enact full marriage equality these past 17 years would have backfired and a Republican-controlled Congress, with support of Blue Dog Democrats, would have imposed a forever binding Defense of Marriage Act upon the District. In hindsight, I am glad we waited.

What I can say is that when Osama bin Laden unleashed his hate upon our nation’s shores, our President George W. Bush used the attack to declare war against Iraq. This initially popular war gradually lost favor with the American public and opened the door for a young senator named Barack Obama.

I can say thank you President Obama for your unifying message of change and hope that not only propelled you into office but helped to create the unprecedented “super majority” in Congress for the Democratic Party.

I can say I’m thankful for the convergence of these events, and within this two-year window, that enabled the leadership of our community and the District government to work with Del. Eleanor Holmes Norton, Speaker Nancy Pelosi, Sen. Harry Reid and many congressional staffers — gay and straight alike — to offset congressional intervention.

This is why it is more important than ever for us to continue to advocate for D.C. voting rights and statehood. We need a full voting member in the Congress of the United States. We need Eleanor Holmes Norton to serve as a full voting member who can devote her talents to legislative pursuits and not have to serve in the role of sentry guarding against potential congressional intervention that at any time could overturn D.C. marriage equality or any other progressive legislation passed in the District of Columbia.

We must not let a new Congress negate this historic law!

I ask you to join me in sending a big thank you to our District and congressional leaders and many other community advocates whose names I have not mentioned and I encourage you to continue to speak out for equality.

Today we celebrate! Tomorrow we continue the struggle.

David Meadows is former president of the Gertrude Stein Democratic Club and a member of the D.C. Democratic State Committee.

(Video by Steve Fox)

Washington, D.C., became the nation’s sixth jurisdiction to allow same-sex marriage Wednesday when it opened its marriage license application process to gay and lesbian couples.

More than one dozen couples lined up outside the D.C. Superior Court building — some arriving even before sunrise — to become the first same-sex pairs to obtain their applications to wed. Couples alternately smiled and wept as emotion swept the crowd.

“Love has won out over fear,” said Rev. Dennis Wiley, co-pastor at Covenant Baptist Church and co-chair of DC Clergy United for Marriage Equality. “Equality has won out over prejudice. Faith has won out over despair.”

Because of a mandatory waiting period, couples that applied for marriage licenses Wednesday won’t be able to marry until March 9.

But the Human Rights Campaign, National Gay & Lesbian Task Force and other advocacy groups that have long sought same-sex marriage rights in the nation’s capital applauded Wednesday’s enactment of the Religious Freedom & Civil Marriage Equality Act of 2009.

“This law is an important step toward equal dignity, equal respect and equal rights for all residents of our nation’s capital,” said Joe Solmonese, HRC’s president. “Today represents a hard-fought victory for D.C. residents and a poignant reminder — here in the home of our federal government and most cherished national monuments — of the historic progress being made toward ensuring equality for all across the nation.”

Solmonese and Rea Carey, the Task Force’s executive director, thanked D.C. Mayor Adrian Fenty and D.C. City Council members who supported the same-sex marriage effort for their commitment to equality.

More than 100 same-sex couples applied for D.C. marriage licenses during the first hours they were available. (Photo by Joe Tresh)

“This is a profoundly moving moment for many D.C. same-sex couples and their families,” Carey said. “To finally be able to share and celebrate one’s love and commitment both publicly and legally is a lifelong dream for many.”

Couples applied for their marriage licenses one day after U.S. Supreme Court Justice John Roberts denied a request that Washington’s same-sex marriage law be prevented from taking effect, a move that would have given opponents more time to organize a voter referendum to overturn the law.

Roberts, who ruled on the matter on behalf of the court, issued a three-page decision saying Bishop Harry Jackson of Hope Christian Church and others opposed to the marriage law failed to show in their request that they could win the case on its merits, or that allowing the law to take effect would cause them irreparable harm.

Roberts said the opponents’ argument that the D.C. Board of Elections & Ethics acted improperly by denying the referendum request on groups that it would violate the city’s Human Rights Act “has some force.”

“Without addressing the merits of the petitioners’ underlying claim, however, I conclude that a stay is not warranted,” he wrote.

Roberts cited past rulings of the Supreme Court that have said it’s the court’s practice to “defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.” The D.C. Superior Court and Court of Appeals previously ruled against Jackson’s request for a stay of the same-sex marriage law.

“As the courts have uniformly recognized in upholding D.C.’s broad anti-discrimination laws,” Solmonese said, “no one should have to have their marriages — or any of their civil rights — put to a public vote.”

D.C. court officials were quick to welcome the more then 100 same-sex couples that arrived before noon Wednesday to seek a marriage license.

Leah Gurowitz, a court spokesperson, described the courthouse halls as being festive as clerks processed about 20 to 25 couples each hour. She said the couples took to congratulating each other after completing the marriage application process.

“As each couple walks out of the Marriage Bureau — and there’s a long line — everybody claps and cheers,” she said. “People have been very festive.”

Gurowitz said 101 same-sex couples checked in before 11:30 a.m. Wednesday. She noted that so many couples came to the courthouse that additional markers indicating each couple’s position in line were printed.

“It is a line and it’s going to take an hour or two, or for some people three,” she said. “We’re just going as quickly as we can.”

D.C. Superior Court Chief Judge Lee Satterfield, who oversees the court’s Marriage Bureau, said the influx of marriage license applications was far above average. The court normally gets about 10 to 12 applications each day.

To help reduce wait time and ensure the application process goes smoothly, Satterfield said there are several things same-sex couples can do before they arrive at the courthouse.

“For instance, come with a complete application,” he said. “We loaded the application on our web site: dccourts.gov. You can go into the Superior Court section, or actually, there’s a link on the front page for folk to go right to the Marriage Bureau section and get the application so they complete it.

“I think it’s important that folk — some of the things we see happen to folk that end up having to come back is that they don’t come down with their identification because the law requires that you have to be 18 years and older.

“And so if there’s one party coming down, they may come down with their own but not with their partner’s — so they have to make sure they have some identification, whether it’s a driver’s license, passport, birth certificate, not just for themselves but the person they’re marrying.”

Satterfield also noted that couples applying for marriage licenses should bring $35 in cash or a money order, plus $10 for the marriage certificate.

Couples planning to return to the courthouse for a civil marriage ceremony should expect to wait at least 10 days before a time is available, Satterfield said. But once scheduled, same-sex couples need not worry that a court official might decline to marry them.

“You know the law, as I understand it in the District of Columbia, does not allow that when it comes to employees of the court,” he said. “It does so for clergy and others. It allows them to decline. It doesn’t allow for our folk to do so.

“While I don’t discuss personnel matters, what I will say is this: We expect to have anyone doing and officiating weddings to be officiating all weddings.”

Staff writer Lou Chibbaro Jr. contributed to this article.

U.S. Supreme Court (DC Agenda photo by Michael Key)

The U.S. Supreme Court denied a request late Tuesday that D.C.’s same-sex marriage law be prevented from taking effect, a move that would have given opponents more time to organize a voter referendum to overturn the law.

Chief Justice John Roberts, who ruled on the matter on behalf of the court, issued a three-page decision saying Bishop Harry Jackson and others opposed to the marraige law could not show that they could win the case on its merits, or that allowing the law to take effect would cause them irreparable harm.

Roberts said the opponents’ argument that the D.C. Board of Elections & Ethics acted improperly by denying the referendum request on grounds that it would violate the city’s Human Rights Act “has some force.”

“Without addressing the merits of the petitioners’ underlying claim, however, I conclude that a stay is not warranted,” he wrote. Roberts cited past rulings of the Supreme Court that have said it’s the court’s practice to “defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”

The D.C. Superior Court and Court of Appeals previously ruled against Jackson’s request for a stay in the gay marriage law.

Roberts also disputed one of Jackson’s claims that D.C. violated its own Home Rule Charter approved by Congress when it restricted the use of referenda and initiatives that take away rights protected by the city’s Human Rights Act. Jackson and his backers have said that policy is invalid because the City Council enacted it as a regular law rather than as an amendment to the City Charter.

“A joint resolution of disapproval by Congress would prevent the act from going into effect, but Congress has chosen not to act,” Roberts wrote. “The challenged provision purporting to exempt certain D.C. Council actions from the referendum process … was itself subject to review by Congress before it went into effect.”

The appeal to the Supreme Court came after the D.C. Superior Court and the D.C. Court of Appeals rejected earlier requests for a court injunction to block the law. Those requests were filed by Jackson, the pastor of a Beltsville, Md., church and other local opponents of same-sex marriage.

Rev. Walter Fauntroy, D.C.’s former delegate to Congress, was among the same-sex marriage opponents that filed the stay request Monday before the Supreme Court.

Gay rights attorney Mark Levine said earlier that an appeal to the Supreme Court to intervene in the matter would have to be based on a claim that allowing same-sex marriages to be performed in the District would violate the opponents’ constitutional rights.

“I don’t believe there’s any constitutional issues involved in this,” he said last week. “But I’m sure Rev. Jackson’s attorneys could come up with something.”

Levine had said the chance that the court would agree with a constitutional claim was highly unlikely.

Due to a mandatory three-business-day waiting period, jubilant same-sex couples — some of whom have been in relationships for more than 20 years — won’t be able to marry until March 9 at the earliest. That’s when the D.C. Superior Court’s Marriage Bureau completes the processing of their marriage licenses.

But for Mills, president of the same-sex marriage advocacy group Campaign for All D.C. Families, March 3 nevertheless represents an historic day.

“The Campaign for All D.C. Families has been working hard for some time to ensure that all residents of the District of Columbia have the opportunity to wed here, and we are excited that it will finally become a reality on March 3,” she said.

Mills’ group and other local LGBT organizations were still finalizing plans this week for a celebration linked to a possible joint appearance by same-sex couples at the courthouse on the morning of the March 3 to fill out their applications for a marriage license.

“We have at least a half-dozen couples expected at the courthouse,” said Cathy Renna of Renna Communications, an LGBT-oriented public relations firm that’s coordinating plans for celebrating the start of the marriage law.

Under court rules, a $35 license application fee plus a $10 fee for a Certificate of Marriage, must be paid by cash or money order to enable couples to submit their applications. All this takes place in Room 4485 of the Moultrie Superior Court Building at 500 Indiana Ave., N.W.

Other groups involved in the same-sex marriage equality effort in D.C. that were expected to participate in a celebration March 3 include the Gay & Lesbian Activists Alliance, D.C. for Marriage, and D.C. Clergy United for Marriage Equality.

District resident Reggie Stanley and partner Rocky Galloway “definitely” plan to be at the courthouse on the morning of March 3 to apply for a marriage license, Stanley said. But Deacon Maccubbin and longtime partner Jim Bennett, owners of the recently closed Lambda Rising Bookstore, weren’t sure this week whether to join other same-sex couples at the courthouse that morning.

“Jim and I haven’t had time to sit down and actually work out how we want to do this — whether we want to be in that first wave or whether we just want to take our time and do it in the old-fashioned way, so to speak,” Maccubbin said.

But regardless of which couples are in the first wave — or which couple is the first to wed in D.C. — Rick Rosendall of GLAA said the shared moment will be special.

“Whichever couples happen to be first in line on March 3, and whoever happens to have the first [wedding] ceremony on March 9,” he said, “it will be a deeply satisfying moment for those of us who have worked to make it possible.”

Local same-sex marriage advocates expressed a sigh of relief Feb. 19 when a Superior Court judge denied a request by their opponents for a court injunction to stop the same-sex marriage law from taking effect.

The opponents, led by Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, Md., said an injunction was needed to give them more time to organize a voter referendum that could overturn the marriage law.

Judge Brian Holeman denied the injunction request on grounds that the court lacked legal authority to block a law approved by the local D.C. government and cleared by Congress through its regular 30 legislative day review, which ends March 3.

Holeman, in a ruling delivered from the bench Feb. 19 and released in writing Monday, also said an underlying lawsuit filed by Jackson seeking to force the city to hold a referendum on the marriage issue did not appear likely to succeed on its merits. He noted the likelihood of the success of Jackson’s lawsuit was a key factor in determining whether to grant an injunction.

Jackson and his attorneys appealed Holeman’s ruling Monday to the D.C. Court of Appeals. Legal observers believe the Appeals Court is likely to uphold Holeman’s decision.

“In my view, the appeals court has no more authority to stop a law passed by the city and cleared by Congress than the lower court,” said Mark Levine, a local gay rights attorney.

Under the city’s election law, Jackson and his backers must complete a series of requirements for a referendum, including obtaining petition signatures from voters, by the time Congress completes March 3 its review of the same-sex marriage law.

Even if the appeals court were to grant him a stay, many observers believe it would be impossible for Jackson to complete the administrative requirements for a referendum by that date.

Jackson is separately appealing a D.C. Board of Elections & Ethics decision denying his application for a voter initiative seeking to ban same-sex marriage in the city. Under the city’s election law, Jackson and his backers have at least six months to complete the petition requirements for an initiative and an unlimited time to challenge the city’s denial of his initiative request through the courts.

The election board has on three occasions denied requests by Jackson and others for ballot measures seeking to overturn the same-sex marriage law. The board has based its denials on grounds that such measures would violate the D.C. Human Rights Act, which bans discrimination based on sexual orientation.

In addition to pushing for ballot measures, same-sex marriage opponents have called on Congress to either overturn the marriage law or force the city to place the issue on the ballot through a referendum or initiative. Most political observers believe Congress won’t intervene on the matter as long as Democrats are in control.

Capitol Hill insiders say all bets are off if Republicans regain control of Congress in the November election or sometime after that. But large numbers of same-sex couples will have married by the time a serious threat to the law surfaces in Congress.

“Everyone will see that the sky hasn’t fallen,” said Michael Crawford, a same-sex marriage activist.

Following a hearing, Judge Brian Holeman issued a preliminary ruling from the bench saying he did not have authority to block a law approved by the city government and cleared by Congress through the normal congressional review process.

Holeman also said he didn’t believe a lawsuit filed by Bishop Harry Jackson seeking to force the city to hold a voter referendum to overturn the marriage law was likely to succeed on the merits. Holeman noted that a key requirement for a court injunction is that the people seeking it can demonstrate a likelihood of winning an underlying case.

“Everyone knows the chances of their winning on the merits are very slim,” said gay rights attorney Mark Levine, who attended the court hearing.

Jackson filed the lawsuit earlier this year after the city’s election board rejected his proposed referendum on grounds that it would violate the D.C. Human Rights Act, which bans discrimination based on sexual orientation.

In Friday’s hearing, Holeman told attorneys for Jackson and for the city, who argued against the injunction, that he would issue a final, written decision on the injunction request Monday.

“I understood this to mean that his written opinion would be the same as his ruling today — to deny the injunction,” Levine said.

He said Jackson’s lawyers indicated they would quickly take their request for an injunction to the D.C. Court of Appeals, possibly as soon as Friday afternoon or Monday. He noted that most court observers believe the appeals court will uphold Holeman’s ruling against an injunction to block the marriage law.

Holeman denied yet another request by Austin Nimocks, one of Jackson’s attorneys, asking him to rule Friday on both the injunction request and on the merits of the case. Instead, Holeman scheduled a separate hearing on the merits of Jackson’s case seeking a voter referendum for Friday, Feb. 27.

“It’s a hearing I think is very likely to be cancelled,” said Levine.

He was referring to the rapidly approaching deadline that Jackson and his supporters face to pull together the numerous requirements of a voter referendum, including petition signatures from voters across the city.

Under the city’s election law, these requirements must be met between the time the D.C. government passes a law that opponents seek to kill through a referendum and the time Congress completes its 30 legislative day review of such a law. Congress is expected to complete its review on the same-sex marriage measure March 3.

Legal observers have said Jackson has a better — although unlikely — chance of killing the marriage law through a separate process he began earlier this year for a voter initiative. Unlike a referendum, the city’s election law gives up to six months for completing the necessary petition and administrative requirements of placing an initiative on the ballot. However, there is no time limit for Jackson to continue his court appeal seeking to overturn the city and the lower court rulings disqualifying the marriage initiative on grounds that it violates the city’s human rights law.

Similar to their decision on Jackson’s referendum proposal, the D.C. Board of Elections & Ethics and a Superior Court judge have ruled that an initiative seeking to ban same-sex marriage cannot be held because it would violate the city’s Human Rights Act.

Jackson has appealed the board and a Superior Court judge’s rulings disqualifying his initiative proposal to the D.C. Court of Appeals. That court is expected to issue a ruling on the case later this year — after the same-sex marriage law has gone into effect and after gay and lesbian couples beginning marrying.

Nimocks and other attorneys working on Jackson case could not immediately be reached.

Contributions from the High Impact Leadership Coalition and Christian Hope Ministries-High Impact comprise slightly more than half of the $199,530 raised as of Jan. 31 to fight the city’s same-sex marriage law, according to reports filed with the D.C. Office of Campaign Finance.

Nearly all of the $97,338 that reports show were contributed by other donors came from national anti-gay groups, including Focus on the Family, Family Research Council Action, the group’s political arm and the National Organization for Marriage.

The reports show Jackson gave $100 of his own money to two of the three committees he formed to ban same-sex marriage in the District. FRC official Chuck Donavan of Manassas, Va., and NOM executive director Brian Brown of Great Falls, Va., each made individual contributions of $50 to one of the three committees.

“No donations are from D.C. residents, unless you believe Harry Jackson actually lives in D.C.,” said gay activist Bob Summersgill, one of the leaders of the city’s same-sex marriage effort.

Summersgill was referring to allegations that Jackson and his wife continue to live in their home in Silver Spring, Md., and use a rented apartment in Southeast D.C. near the Washington Nationals stadium as an address to maintain D.C. residency.

City records show that Jackson registered to vote in the District for the first time on April 22, shortly before he filed papers for the first of three ballot measures he has proposed to ban same-sex marriage in D.C.

In response to a complaint challenging his city residency, local officials ruled last year that Jackson’s D.C. apartment and his D.C. driver’s license, among other factors, were sufficient proof that he met the requirements for city residency.

Neither Jackson nor a spokesperson for his church returned calls this week seeking comment for this story.

The Office of Campaign Finance reports show that one of the committees established by Jackson, Stand for Marriage D.C. Initiative, sought to place a voter initiative on the ballot that would ban same-sex marriage. The second committee, Stand for Marriage D.C. Referendum, sought a voter referendum on the issue, and the third one, Stand4MarriageDC, sought to prevent the City Council from passing a same-sex marriage bill.

Finance reports show the three committees spent a total of $146,499 as of Jan. 31 in those efforts. According to the reports, the money was partly used to hire two prominent public relations firms to build support for a ballot measure and to retain a law firm to challenge rulings against a ballot measure.

One of the public relations firms, Schubert Flint Public Affairs, worked on the 2008 Proposition 8 campaign in California, which succeeded in banning gay marriage. It also assisted the successful ballot measure campaign in Maine in November, which resulted in overturning that state’s gay marriage law.

Summersgill and other local activists were quick to note that Jackson and his supporters have so far lost on all three fronts, with the D.C. Council passing the Religious Freedom & Civil Marriage Equality Amendment Act of 2009 in December and the D.C. Board of Elections & Ethics and two judges ruling against Jackson’s call for a ballot measure.

The same-sex marriage bill the City Council passed and Mayor Adrian Fenty signed is expected to clear its congressional review and become law the first week of March.

“What’s Harry Jackson getting for his money?” Summersgill asked on the Gay & Lesbian Activists Alliance blog, GLAA Forum. “All of his efforts have been for nothing.”

Jackson and his supporters have argued the campaigns opposing same-sex marriage have galvanized city residents who are said to be outraged that they’ve been unable to directly decide on the issue through a ballot measure.

A Washington Post poll released two weeks ago appears to partially support the claim. While the poll shows that 56 percent of city residents surveyed support legalizing same-sex marriage in the District, it also shows that 59 percent favor allowing voters to decide on the issue through a ballot measure.

Last year, Jackson and his local supporters disputed claims by marriage equality advocates that same-sex marriage opponents are dominated by non-D.C. residents. Jackson and his backers have said a large number of D.C. residents, including many of the city’s black clergy, have joined the campaign to allow the city’s voters to decide directly whether gay marriage should be legal.

LGBT activists have argued, however, that many of the clergy helping Jackson are from the Maryland and Virginia suburbs. They note that more than 100 D.C. clergy members have joined forces to support the same-sex marriage bill.

The election board has ruled three times since last spring that a ballot measure seeking to ban same-sex marriage in the city cannot be held because it would violate the D.C. Human Rights Act, which bans discrimination based on sexual orientation. Two D.C. Superior Court judges have upheld the board’s rulings.

The board considered Tuesday yet another proposed ballot measure — this time an initiative seeking to ban gay marriage proposed by Ward 8 civic activist Joyce Little. It was not immediately clear when the board would rule on the issue.

High Impact Leadership Coalition and Christian Hope Ministries-High Impact are components of the Beltsville-based Hope Christian Church, where Jackson serves as senior pastor. His wife, Vivian Michelle Jackson, is listed on the church web site as executive pastor.

The church’s web site describes the High Impact Leadership Coalition as a non-profit, tax-exempt group that “exists to protect the moral compass of America and to be an agent of healing to our nation by educating and empowering churches, community and political leaders.”

The web site does not disclose the tax status of Christian Hope Ministries-High Impact, but its listing as an arm of the church suggests that it also has a tax exemption under the Internal Revenue Service 501(c)(3) provision.

IRS rules prohibit tax-exempt religious organizations from engaging in partisan political campaigns on behalf of candidates running for public office. But the rules allow religious groups to become involved in some lobbying for or against proposed laws — including voter initiatives or referenda — as long as the lobbying is not a “substantial” part of their overall activity or expenditure of funds.

Neither Jackson nor a spokesperson for High Impact Leadership Coalition or Christian Hope Ministries group could be reached this week to determine the size of the two groups’ budgets or expenditure of funds. Neither group is listed by the non-profit watchdog organization Guidestar.org as having filed an IRS 990 public disclosure form that is required for most, but not all, tax-exempt organizations.

Without knowing the overall budget of the two groups, it could not be determined whether they are in compliance with or in violation of the IRS rules barring “substantial” lobbying activity by such groups. IRS rules stipulate that any “religious organization that engages in excessive lobbying activity over a four-year period” could lose its tax-exempt status.

Summersgill said he was considering filing a citizen request with the IRS calling for an investigation into the two groups.

It is time to make that office independent. Currently, even with the name change, the person occupying that office is still part of the mayor’s cabinet and answers directly to the mayor. It would be a first step to giving that office the right to control criminal trials in D.C. as well.

This is not a criticism of the work of Peter Nickles, presently occupying the office. In fact the LGBT community appreciates his strong stand in defending the Board of Elections & Ethics decision to declare a referendum or an initiative inappropriate in the case of marriage equality. But we had little idea of where the AG would come down on this issue and what his personal views on marriage equality were. We assumed that the mayor wouldn’t appoint someone who disagrees with him on such a basic issue but stranger things have happened. That is just one reason why we in the LGBT community should care about this office. There are others. Issues of concern include contracts that the city has with Catholic Charities or other religious organizations that may come into question after marriage equality becomes law.

There are issues surrounding the contracting related to HIV/AIDS that the recent articles in the Washington Post pointed out. There is the apparent waste of scarce AIDS funding that could end up in the courts. In this case the contracts were awarded by one mayoral agency and the attorney general’s office, another mayoral agency, will be investigating them. The mayor’s office will be investigating itself. This could lead to whitewashing the issue because there is no way we can be assured that the final report is totally independent and that the result of the AG’s investigation won’t be slanted in order to make the mayor look good.

I am not suggesting that Nickles would do that. But we have no guarantee that some future AG wouldn’t. There are often cases where the AG’s office has to investigate impropriety in another agency and they have to defend decisions of city agencies in court. The current battle with the courts over putting mayoral agencies into receivership is one example.

Another possible conflict has to do with recent contracts that were entered into by the city without proper consultation with the Council. The AG suggested that this was an illegal action by the mayor’s office but then began to defend the contracts done that way. Again the contracting was done by the mayor’s office and is being reviewed by the mayor’s office itself. If this were done by an independently elected AG, the people would have more confidence in the outcome of the investigation. In this case, the AG is actually negotiating with the Council on behalf of the mayor.

A major benefit of the direct election of an attorney general is that we will have the same ability to question them on their views on the issues as we do our other elected officials. We will be able to judge for ourselves their backgrounds and abilities.

One of the fears I hear from those opposed to electing an independent AG is that they will make decisions based on looking at a future run for mayor. Well that is part of our electoral process and it will be up to the people whether they would succeed. We have so few elected positions in the District that one more would be welcome. Decisions now made by the appointed AG are every bit as political but rather than being independent and representing the people they are made by a person appointed by the mayor who owes his job to him.

Yes, AG’s have become governors and even cabinet members, like Janet Napolitano. Or Andrew Cuomo, who began in the cabinet, now is an AG and wants to run for governor in New York. But then in D.C. we have had elected officials become mayor, for example Marion Barry and Adrian Fenty, so what is the difference? The scenario of moving to higher office from the AG’s position isn’t really a problem.

The bigger problem for the people of D.C. is to ensure that we have another independent voice representing our interests. An independent AG elected by the people whose views on the issues of the day are known could be that person.

Peter Rosenstein is a D.C.-based LGBT rights and Democratic Party activist.

(Photo Courtesy of CNN)

A Republican congressman from Utah introduced a resolution of disapproval Wednesday to overturn D.C.’s same-sex marriage bill, which is undergoing a required congressional review of 30 legislative days.

Rep. Jason Chaffetz (R-Utah) said he expects the Democratic controlled Congress to block his resolution, but believes it would serve as a “symbolic” gesture for lawmakers who oppose gay marriage.

“I wish it would come up for a vote because I think traditional marriage would win,” he told the Desert News of Salt Lake City. “But with the Democrats controlling the House, the Senate and the presidency, I can’t imagine that this would make it through the process.”

House Speaker Nancy Pelosi has said she and House Democratic leaders favor allowing D.C. to pass its own laws without congressional interference. A Pelosi spokesperson said the speaker would take steps to prevent Chaffetz’s resolution from reaching the House floor for a vote.

Under the District’s Home Rule Charter, disapproval resolutions must be approved in separate votes in the House and Senate and signed by the president before the end of the congressoional review of a D.C. bill. Gay Democratic activists have said the White House has put out the world that President Obama would not sign such a resolution in the unlikely case that it reaches his desk.

Congressional observers expect the D.C. same-sex marriage bill to become law in the first week of March, when the congressional review is scheduled to be completed.

Chaffetz introduced his resolution on the same day the D.C. Board of Elections & Ethics held a public hearing on a proposed voter referendum seeking to ban same-sex marriage in the city. Most political observers expect the board to disqualify the referendum on grounds that the city’s election law prohibits initiatives or referenda that would violate the city’s Human Rights Act. The act bans discrimination based on sexual orientation and gender identity.

Judge Judith Macaluso ruled that the D.C. Board of Elections & Ethics acted properly in November when it rejected a proposed initiative calling for banning same-sex marriages in the city.

The election board said seeking a gay marriage ban was an impermissible subject for a ballot measure because it would violate the city’s Human Rights Act, which bans discrimination based on sexual orientation.

“Today’s decision affirms the District’s effort to make our city open and inclusive,” said D.C. Mayor Adrian Fenty, who signed a same-sex marriage bill last month shortly after the City Council approved it.

City officials and Capitol Hill observes believe the bill will become law the first week in March, when it’s expected to clear a required congressional review of 30 legislative days.

“Thanks to the Superior Court, this historic legislation is now one crucial step closer to being implemented,“ said D.C. Attorney General Peter Nickles, who filed the city’s court brief opposing the ballot initiative.

“Many District residents have waited decades for full marriage rights,” he said. “Their wait will soon be over.”

The case on which Macaluso ruled, Harry Jackson Jr. v. District of Columbia Board of Elections & Ethics, is named for Bishop Harry Jackson, the Beltsville, Md., minister who is leading efforts to ban same-sex marriage in D.C.

Another Superior Court judge ruled against Jackson last year when he filed papers with the election board for a voter referendum to overturn a separate law that authorized the city to recognize same-sex marriages performed in other jurisdictions.

Similar to Thursday’s ruling, the earlier ruling upheld an election board decision rejecting Jackson’s proposed referendum on grounds that it would violate the city’s Human Rights Act.

Among those who signed on as co-plaintiffs with Jackson in the case decided Thursday were Rev. Walter Fauntroy, the city’s former congressional delegate; Ward 5 Advisory Neighborhood Commissioner Robert King; and Rev. Anthony Evans, a D.C. minister.

Attorneys representing Jackson and the other plaintiffs argued in court papers that the right of citizens to propose initiatives and referenda was established as an amendment to the congressionally approved D.C. City Charter. They noted that the restriction used by the city to disqualify initiatives and referenda that would violate the city’s Human Rights Act was established by a regular law passed by the City Council aimed at implementing the City Charter amendment.

According to Jackson and his attorneys, the Council’s restriction on an initiative or referendum seeking to ban same-sex marriage violates the City Charter, which created the initiative and referenda process without such a restriction.

In her ruling Thursday, Macaluso said the City Charter Amendment in question was passed by the City Council before being ratified by Congress. She said it gave the Council full authority to carry out the initiative and referenda process through implementing legislation.

“The most reasonable interpretation of events is that [the] Council … knew what it intended when it directed itself ‘to adopt such acts as are necessary to carry out the purpose of this [charter amendment ]’and that this intention included protection of minorities from the possibility of discriminatory initiatives,” Macaluso says in her ruling.

“Judge Macaluso applied the law impartially in this case, recognizing the D.C. Council’s right to define the initiative process consistent with the D.C. Charter,” said Tom Williamson, one of a team of attorneys who represented same-sex couples in a friend of the court brief supporting the city’s position in the case.

“The decision upholds the Council’s right to broadly protect human rights for all District residents,” said Williamson, who is with the D.C. law firm Covington & Burling, which is providing pro bono legal counsel to the same-sex couples.

Jackson and his fellow plaintiffs in the case could not be immediately reached for comment. They have said in the past that they would likely appeal a decision against them by Macaluso.

But some legal experts, including Williamson, have said Jackson most likely would not be able to appeal the case beyond the D.C. Court of Appeals to the federal courts, including the Supreme Court, because it doesn’t involve a federal constitutional issue.

Thirty-seven Republican members of the House of Representatives and two GOP U.S. senators had filed a separate friend of the court, or amicus, brief backing Jackson’s position in the case.

The GOP lawmakers are expected to take steps through congressional action later this year to overturn the city’s same-sex marriage bill after it becomes law in March. Same-sex marriage supporters, including national LGBT groups such as the Human Rights Campaign, have said they are hopeful that the Democratic controlled Congress will kill any attempt to overturn the marriage law.

“This second, back-to-back ruling by the D.C. Superior Court is an overwhelming victory for fairness, the rule of law and the protection of all D.C. residents against discrimination,” said Joe Solmonese, HRC’s president. “D.C. has the right to govern itself and make its own laws without the interference of 39 Republican members of Congress more interested in scoring cheap political points than in the everyday lives of D.C. residents.”