Gay marriage opponents have filed papers with the city’s election board proposing two more ballot measures to overturn a same-sex marriage law the D.C. City Council passed and Mayor Adrian Fenty signed in December.
Bishop Harry Jackson, the Beltsville, Md., minister who is leading efforts to oppose same-sex marriage in the District, filed papers Wednesday calling for a voter referendum to block the Religious Freedom & Civil Marriage Equality Amendment Act from becoming law.
And in a separate development that went largely unnoticed, Ward 8 resident Joyce Little filed papers with the Board of Elections & Ethics on Dec. 23 calling for a voter initiative that seeks to overturn the same-sex marriage bill by banning same-sex marriage in the city.
“The purpose of this initiative is to allow the citizens of the District of Columbia to vote to preserve traditional marriage as between one man and one woman,” Little wrote in a summary statement submitted to the election board.
The election board scheduled a Feb. 16 public hearing for Little’s initiative. Board General Counsel Kenneth McGhie said the board was in the process of scheduling another hearing sometime this month for Jackson’s referendum proposal.
In a related development, two U.S. senators and 37 members of the House of Representatives — all Republicans — filed a friend-of-the-court brief this week in support of an older lawsuit from Jackson that seeks to force the city to hold a voter initiative on the gay marriage question. Jackson filed the lawsuit last year after the election board ruled that a ballot measure seeking to ban gay marriage would violate the city’s Human Rights Act and therefore not allowable.
The GOP lawmakers’ brief was countered by another friend of the court, or amicus, brief filed by three D.C. same-sex couples that were married in other states and another same-sex couple that hopes to marry in the District later this year. Also signing on to the couples’ brief were the local same-sex marriage advocacy groups D.C. Clergy United and Campaign for All D.C. Families.
Attorneys for same-sex marriage supporters and opponents argued on behalf of their respective motions and briefs at a hearing Wednesday before Superior Court Judge Judith Macaluso, who is expected to issue a ruling on Jackson’s lawsuit in the next few weeks.
The two new ballot measure proposals, including the ones filed in December by Little and this week by Jackson, come on the heels of decisions last year by the election board rejecting an earlier initiative and referendum proposal — both introduced by Jackson and his backers. A D.C. Superior Court judge last spring upheld the board’s ruling rejecting the referendum.
Macaluso is deliberating over Jackson’s lawsuit seeking to overturn the board’s decision to disallow his earlier initiative proposal.
Most legal observers expect the election board to reject the initiative filed this week by Little. Little could not be reached to determine whether she plans to appeal in court any board decision denying her request for the initiative.
“If they keep coming back and the courts continue to rule against them, at some point the courts will throw these cases out in summary judgment,” said gay activist Peter Rosenstein, who is a board member of the Campaign for All D.C. Families. “You can’t keep going back to the courts with the same case.”
But Jackson and Ward 5 Advisory Neighborhood Commissioner Robert King have vowed to do just that, saying they believe a higher-level court will eventually force the city to hold a referendum or initiative that brings the subject of gay marriage before the city’s voters.
Marriage bill goes to Hill
Meanwhile, the City Council’s Office of Legislative Affairs sent the same-sex marriage bill passed by the Council and signed by Fenty to Congress on Jan. 5 to arrange for a required congressional review of the law, according to office staffer Ebony Henry.
Henry said her office’s decision to wait more than two weeks after Fenty signed the bill Dec. 18 to send it to Capitol Hill was due to the office’s normal processing of bills that get sent to Congress for their required congressional review of 30 legislative days.
The clock for the congressional review is expected to start ticking next week, when the House begins its 2010 legislative session.
Capitol Hill observers initially thought the congressional review would be completed sometime in March, but some are now speculating the review could be concluded as early as February.
“Nobody knows for sure because it all depends on how many days we’re in session in any given week,” said one Capitol Hill staffer, who spoke on condition of not being identified.
Little, who filed papers in December for an initiative to overturn the city’s same-sex marriage law, filed a motion in federal court the same month seeking an injuction to block the City Council from voting on the same-sex marraige bill at its regularly scheduled legislative session. U.S. District Court Judge Colleen Kollar-Kotolly denied the motion Dec. 15, the same day the Council passed the bill, saying Little failed to provide evidence to support her claim that allowing the Council to vote on the marraige bill would cause the city and gay marraige opponents “irreparable harm.”
Little did not issue a public announcement about her motion for the injunction, and most local activists and Council members were unaware that she had made an apparently unprecedented attempt to ask a court to stop the Council from voting on a bill.
One issue is ‘home rule’ scope
U.S. Sens. James Inhoff (R-Oak.) and Roger Wilkins (R-Miss.) joined 37 conservative GOP House members, most of whom are vocal opponents of LGBT rights, in filing the amicus brief in support of the lawsuit by Jackson to force the city into holding a voter initiative on gay marriage.
“Under the United States Constitution, they serve as members of the ultimate legislative authority for the District of Columbia and the very body which delegated to the District its limited legislative power under home rule,” the amicus brief states.
D.C. home rule advocates, including LGBT groups that have pushed for full voting rights for D.C. in Congress, are likely to interpret the brief as a signal by the GOP lawmakers that they will seek to overturn the same-sex marriage law sometime in the future if Jackson loses his court fight. Congress retains authority to overturn any D.C. law at any time.
Most political observers believe the city’s same-sex marriage law will be protected as long as Democrats retain control of Congress, but they caution that the law could be in jeopardy if Republicans gain control in the future.
The same-sex couples who filed the amicus brief opposing Jackson’s lawsuit include city residents Trevor Blake and Jeff Krehely; Amy Hinze-Pifer and Rebecca Hinze-Pifer; Vincent Micone and Thomas Metzger; and Reginald Stanley and Rocky Galloway.
The nationally known law firm Covington & Burling is providing pro-bono legal representation for the same-sex couples in the case.