Board considers gay marriage referendum

The currently two-member Board of Elections and Ethics — one seat is vacant — heard testimony Wednesday from both sides of the proposed ballot question. The measure would negate a recently adopted city law recognizing thousands of gay marriages performed in other states. Rhetoric from both sides was passionate and in some cases vitriolic toward the opposing viewpoint.

But for board members Charles Lowery and Errol Arthur, the question was clear: Would the referendum violate the city’s Human Rights Act, which bars discrimination based on sexual orientation? If it would, under the law, then the matter does not belong on the ballot.

A decision is likely this week.

Brian Raum, senior counsel for the Alliance Defense Fund and a referendum supporter, focused his attention on Dean v. D.C., a 1995 case that barred the D.C. court clerk from issuing marriage licenses to gay couples. The referendum would not authorize discrimination, Raum said: “This is a public policy issue that the people should decide.”

Brian Flowers, the D.C. Council’s general counsel, said the Dean case holds no bearing: The District is not performing gay marriages, only recognizing outside unions, a tenant of the city’s Home Rule Charter.

Jim Boothby, a former D.C. resident, argued that certain kinds of discrimination are “absolutely and certainly constitutionally valid” — mandating separate bathrooms for men and women, for example, or barring minors from buying cigarettes.

Referendum backers are “basically advocating for a popular vote that will give vent to public homophobia,” argued Philip Pannell, long time D.C. gay activist. At-large D.C. Councilman Phil Mendelson said the issue of gay marriage is “fairness,” that the “right to enter into a relationship, to marry, is a basic personal right.”

“We are talking about a civil right and civil rights should not be subject to referendum,” Mendelson told the board.