Elections, Ethics and Arguments

The opposition fires its shots at marriage equality

by Will O'Bryan
Published on October 29, 2009, 12:00am | Comments

There were two fronts in the fight for marriage equality Monday, and strategists sent their forces where they would likely have the most impact. Where the City Council has nearly unanimous support for marriage equality, opposition did not marshal its resources. Instead, the majority of those addressing a Council committee hearing were supporters of marriage equality, speaking primarily for the press and any opposition who attended.

The bulk of the opposition, however, fired its shots earlier in the day at a Board of Elections and Ethics (BOEE) hearing, where the board fielded comments about Bishop Harry Jackson Jr.'s proposed Marriage Initiative of 2009. That initiative would ask D.C. voters to accept or reject a definition of marriage as one man and one woman as the only marriage valid in the District. An earlier attempt to push back marriage equality by referendum -- subjecting D.C. legislation to recognize same-sex marriages performed elsewhere to a vote -- was rejected by the BOEE in June, in that the D.C. Human Rights Act (HRA) forbids subjecting the rights of minorities to popular vote.

Cleta Mitchell, an attorney representing Stand4MarriageDC, with which Jackson and the National Organization for Marriage are affiliated, and Austin R. Nimocks, a local attorney for the Alliance Defense Fund, an Arizona-based, "Christ-Centered" legal group, and Jackson got the ball rolling Monday morning at One Judiciary Square.

Mitchell and Nimocks argued that the BOEE in July helped close the door on their court appeal of the referendum effort by arguing that Jackson's group could later pursue the initiative process. What pursuing the process meant, exactly, seems open to interpretation.

"You are legally precluded from switching your position now," Mitchell argued. "Your brief told the court we could pursue an initiative."

BOEE Chair Errol R. Arthur countered that the board was suggesting no deadline extension be granted for the referendum attempt, in that the initiative avenue would still be available after the referendum deadline expired.
That the initiative process is available, however, is no guarantee that the proposed initiative won't meet the same fate as Jackson's referendum.

Arguing that the initiative and referendum are "distinctly different," Mitchell also likened the BOEE's position to Lucy of Peanuts fame offering Charlie Brown the football to kick, only to pull it away at the last moment. Mitchell and Nimocks argued that Dean vs. District of Columbia, in which the D.C. Court of Appeals decided in 1995 that D.C. law did not allow for same-sex marriage licenses, remained valid. However, that decision was based upon gender-specific language that no longer exists in D.C. laws, leaving Mitchell to speculate that if the HRA trumps D.C.'s marriage laws, the District would already be in violation of the HRA by not granting marriage equality.

"That is a preposterous view of the Human Rights Act and its application," she concluded strongly.

While the board's primary interest appeared to be with the legal questions at hand, the board was nonetheless bound to sit through hours of public testimony that hit on everything from Noah's Ark, which was not a "gay love boat," according to Timothy Jackson of Mitchellville, Md.; to Penny Kelso of Lubbock, Texas, referring to herself as "just a normal citizen" who described the U.S. as a country where "men are men and women and women." Notably, though it was not part of Monday's testimony, Kelso already has some measure of "birther" notoriety as one of those accusing President Barack Obama in U.S. District Court of lying about being a natural-born citizen. In a day that offered warnings of God's wrath and the fear that future generations may need to visit museums for an idea of what marriage between one man and one woman once looked like, no claims seemed out of order.

Through the five-hour hearing Oct. 26, about half-an-hour at the end went to the small group challenging the initiative. Among those were Councilmember Phil Mendelson (I-At Large); Brian Flowers, the D.C. Council's general counsel; Bob Summersgill; Rick Rosendall of the Gay and Lesbian Activists Alliance; Mark Levine of the Gertrude Stein Democratic Club; Philip Pannell of the D.C. Coalition of Black Lesbians, Gays, Bisexuals and Transgenders; Nick McCoy of the Human Rights Campaign; and Allen Rose of Dignity Washington.

As of Metro Weekly deadline, the BOEE had not yet decided the matter.'