Rev. Anthony Evans (DC Agenda photo by Michael Key)

A local minister calling for a voter referendum to ban same-sex marriage in the nation’s capital startled a D.C. Board of Elections & Ethics hearing when he asked the board’s two members if they have “homosexual” family members or friends.

Rev. Anthony Evans, associate pastor of D.C.’s Mount Zion Baptist Church and a same-sex marriage opponent, questioned the board’s objectivity Jan. 27 in its role to decide whether a referendum seeking to ban gay marriage is an appropriate subject for the ballot.

“Deep down in your heart, are you for same-sex marriage?” Evans asked during his testimony. “Are any of your family members or friends homosexuals? Do you have any hatred in your heart towards the church … or towards clergy?”

Evans, who was applauded by some of the hearing’s spectators, called on the two board members to withdraw from the proceedings if they “answered yes to any of these questions.”

Board members Errol Arthur, who serves as chair, and Charles Lowery did not respond to Evans’ questions. The two thanked him for his testimony and called the next witness.

Evans was one of about 50 witnesses who urged the board to allow a marriage referendum to be placed on the ballot. Eighteen witnesses, including LGBT activists, testified against holding a referendum, saying such a ballot measure would violate the city’s human rights law.

The hearing was the third one held by the board during the past seven months to decide whether a ballot measure seeking to ban same-sex marriage could be held. The board ruled against two earlier requests — one for a referendum and the other for an initiative seeking to ban marriage.

D.C. Superior Court judges upheld both board rulings, saying members were correct in determining that a ballot measure seeking to ban same-sex marriage in the city would violate the city’s Human Rights Act. The act, among other things, prohibits discrimination based on sexual orientation.

Rick Rosendall, vice president of the Gay & Lesbian Activists Alliance and one of the witnesses to testify against the proposed referendum, called Evans’ questions to the election board “outrageous” and said they represented an escalating anger and vehemence among same-sex marriage opponents.

“They already lost twice and they’re certainly going to lose again on this one,” Rosendall said. “They’re beginning to sound increasingly shrill and desperate.”

Several witnesses, including D.C. residents Odessia Tolliver and Corinthia Boone, cited biblical passages. They said the excerpts showed that same-sex marriage is immoral and would hurt society and “traditional” culture.

“I teach history,” Boone said. “Every great empire where they dared to redefine marriage as [something other than being exclusively] between a man and a woman declined and no longer exists.”

Among those testifying against the proposed referendum were D.C. Council member Phil Mendelson (D-At Large), who worked with Council member David Catania (I-At Large) to shepherd the Religious Freedom & Civil Marriage Equality Amendment Act of 2009 through the Council.

The bill is undergoing its required congressional review following its approval by the Council in December and Mayor Adrian Fenty’s decision to sign it. It’s expected to become law in early March, with nearly all political observers predicting Congress won’t overturn it.

U.S. Rep. Jason Chaffetz (R-Utah) has introduced a motion to overturn the same-sex marriage bill, but the Democratic-controlled Congress is expected to block his resolution.

Two attorneys opposed to the referendum joined same-sex marriage advocate Bob Summersgill in raising last week what some called a new and novel argument against ballot measures seeking to ban gay marriage in the city.

The three said the proposed referendum, if approved, would violate the D.C. City Charter by preventing the city from obtaining projected tax revenue generated from same-sex weddings. The revenue could total more than $1 million annually.

Brian Flowers, general counsel for the City Council, and Mark Levine, an attorney representing the Gertrude Stein Democratic Club, noted that a provision in the City Charter strictly prohibits initiatives and referenda that would appropriate funds, cut taxes or negatively impact the city’s budget.

To invoke the provision, they cited a report issued in December by the city’s chief financial officer projecting that same-sex weddings would generate millions of dollars a year in revenue for D.C. businesses that specialize in services related to weddings. That revenue, in turn, would result in additional tax revenue for the city, according to the report.

“Another study predicts that more than $50 million over three years would be generated in local tax and fee revenues, potentially creating approximately 700 new jobs,” Flowers said in his testimony before the election board.

Flowers and Levine pointed to a 2004 decision by the D.C. Court of Appeals barring an initiative seeking to ban smoking in restaurants and bars and an appeals court ruling in 1994 rejecting an initiative to prevent the city from booting cars that are illegally parked. In those cases, the court ruled that advocates for a smoking ban and an anti-booting policy could not seek to enact those polices through a ballot measure because the policies would reduce city revenue by curtailing taxes generated by restaurants and bars or fines generated by booting cars.

Some legal observers believe the “revenue” argument may be stronger than the human rights act argument because the revenue-related restriction against ballot measures is written in the City Charter. The human rights law restriction is part of a regular city law passed in 1978 to implement the City Charter’s creation of the initiative and referendum process.

Cleta Mitchell, an attorney representing supporters of the ballot measure to ban same-sex marriage, testified at the election board hearing that the human rights law argument used by marriage equality advocates is flawed. Mitchell and others calling on the board to allow a marriage referendum have argued that the human rights law restriction could only be used if they were embedded in the City Charter.

Two Superior Court judges have rejected that argument, however, and marriage equality activists said they were hopeful that the election board and yet another court ruling would support their view that the ballot measures must be rejected if they would result in discrimination against minorities protected by the Human Rights Act.