Courting Inequality

Marriage opposition takes the fight to D.C. Superior Court

As expected, the faction fighting against marriage equality in the District, led by Bishop Harry Jackson of the Hope Christian Church in Beltsville, Md., filed suit Wednesday, Nov. 18, against the D.C. Board of Elections and Ethics (BOEE) a day after that body rejected an initiative from Jackson’s group to put the definition of marriage to popular vote of D.C. residents. The BOEE rejected the initiative on the grounds that it would violate D.C. law by allowing residents to vote on one group’s civil rights, in this gay people’s right to civil marriage.

The suit asks the D.C. Superior Court to allow the initiative on the grounds that the City Council never had the authority to restrict voters’ ability to vote on any issue not restricted by the Home Rule Charter, which would mean any issue that aside from appropriations, the suit claims. Further, the petitioners ask that the court state that the initiative, which would ask voters to approve or not a statement that only marriages between one man and one woman are valid in the District, does not violate the city’s Human Rights Act (HRA), which prohibits discrimination based upon sexual orientation, in that marriage “falls outside the intended scope of the HRA.”

“It means that basically what they’re trying to do is get rid of the Human Rights Act,” says Mark Levine, the well-known attorney who works with Gertrude Stein Democratic Club. “They know they’ve lost the argument, so now they’re going for the whole enchilada. … It would take the District back 30 years.”

But it might take years to get there, if ever.

“Whoever loses the current case in court is going to appeal,” says Bob Summersgill, the longtime activist who has had a hand in crafting some of the District laws that are among the most progressive in the country when it comes to protecting LGBT people. “And the loser of that will appeal.”

At the end of the day, Summersgill adds, a drawn-out court battle could be a good thing for proponents of marriage equality, in that younger people are more statistically more likely to favor equality for gays.

“Lawsuits and appeals and all of that tend to take time and that’s a good thing for us,” he says, offering that he believes it’s very unlikely there will be a marriage initiative on the ballot in 2010. “Younger people are much more favorable to marriage equality, and every year more young people enter the voting rolls.”

Regardless of how long it may take for the question to be answered in court, Summersgill says this particular tack is the savviest one Jackson’s attorneys could follow.

“It’s the smartest thing they could’ve done,” he says. “Facts are against them. The law is against them. They’re trying to get around the law, and that’s smart. It’s something we’d been aware of as a potential argument from the bad guys.”

The “bad guys” joining Jackson in the suit against the BOEE are ANC 5A Commissioner Robert “Bob” King; Walter E. Fauntroy, pastor at D.C.’s New Bethel Baptist Church; Bishop James Silver of D.C.’s Bible Way Temple; Anthony Evans, of D.C.’s Mount Zion Baptist Church; Dale Wafer; Melvin Dupree; and Howard Butler. They are represented by Cleta Mitchell of Foley & Lardner LLP in D.C., along with attorneys from the Alliance Defense Fund (ADF). With its primary office in Scottsdale, Ariz., ADF works to “keep the door open for the spread of the Gospel through the legal defense and advocacy of religious freedom, the sanctity of human life, and traditional family values,” with a self-reported annual budget of roughly $38 million.

Currently, the District recognizes legal marriages between members of the same sex performed elsewhere, but does not grant marriage licenses to same-sex couples. Legislation introduced by Councilmember David Catania (I-At Large), who is gay, that would allow for such licenses is set for its first Council vote Dec. 1.

Though the stage is being set for what could be a long court fight, the tenacious Levine is ready to put his legal acumen to work for the sake of marriage equality.

“I’m ready to go to battle in court,” he says, though adding that he won’t expect the fight to be effortless. “I don’t want to make a prediction, because anything can happen in a court of law. It’s our job to expect the unexpected and prepare for the worst.”

Follow Will O'Bryan on Twitter @wobryan.

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