The Case for a Gay Marriage Vote Why liberals should support a D.C. ballot initiative

Rights of Passage: Polls show Catania’s gay marriage legislation would be strongly endorsed by D.C. voters.
Darrow Montgomery

It’s a good thing that the people of Topeka, Kan., never got to vote on where little Linda Brown went to school in the early 1950s. If given the opportunity, they would have voted in support of her segregated education. But when that very question came before the Supreme Court in 1954, the panel handed down the famous Brown v. Board of Education decision, which desegregated public education in the United States.

Civil rights, it’s said, should never be left to the masses. They’re too prejudiced, too prone to trample the disadvantaged.

That principle of American democracy has made an appearance of late in D.C. politics, in connection with same-sex marriage. This past spring, the D.C. Council voted to recognize out-of-state gay marriages, and At-Large Councilmember David A. Catania told LL last week that he plans “very soon” to introduce a bill authorizing full marriage rights.

In response, anti-gay-marriage forces have taken to advocating for a ballot initiative on the matter. They’re hoping for a 2010 repeat of last year’s California drama, in which a majority of voters rebuffed that state’s Supreme Court decision legalizing same-sex marriages. Out-of-town forces are already massing, eager to turn the nation’s capital into a high-profile battleground, with the lead carpetbagger, suburbanite Bishop Harry Jackson, deploying quasi-apocalyptic rhetoric to describe the issues at stake.

That has prompted the civil-rights protestations of marriage-equality activists, fearful of a long, divisive, potentially violent campaign.

Though LL loves the Constitution and deplores majoritarian tyrannies, he has been wondering: Maybe there is one instance where you put civil rights up to a vote. And that circumstance is when civil rights would win. In a blowout.

At least two polls support this prediction: An early July survey [PDF] of wards 1, 3, and 6 sponsored by leading local business types found that 76 percent of the 1,835 registered Democrats polled would support a council bill to legalize gay marriage. And, yes, those are three particularly white and liberal wards, but a lesser-known poll—done in the spring at the behest of the Human Rights Campaign, a national gay-rights advocacy group—indicated strong citywide support. According to sources who have seen the poll results, around 65 percent of respondents across all eight wards support legal gay marriage.

In other words, it would be a landslide.

Now, it’s probably not going to happen. For one thing, precedent has been set. When Jackson et al. tried to force a referendum on the marriage-recognition bill earlier this year, that prompted the Board of Elections and Ethics to rule that questions of same-sex marriage were matters covered by the city’s Human Rights Act and thus ineligible for the ballot. A challenge to that decision ended up in the hands of Superior Court Judge Judith E. Retchin, who ruled quite broadly that the referendum would indeed be discriminatory.

So when the new initiative comes again to the BOEE, the board will essentially have a cut-and-paste job in denying its suitability for the ballot.

The issue is almost certain to end up, however, in the D.C. Court of Appeals. With time running out, the anti-gay-marriage forces chose not to proceed with a hasty appeal of Retchin’s decision—probably smart, since a sloppy argument to that body might well have removed from their legal arsenal their best weapon: the 1995 Dean v. District case [PDF]. That decision held, among other things, that because traditional man-and-woman marriage was embedded throughout city law, the Human Rights Act could not be construed to apply to gay marriage.

Dean might not be long for the law books. In the ensuing 14 years, there have been plenty of developments that probably mean its demise: For one thing, the appeals court has changed. None of the judges that sat on the panel that decided that case are still active, and eight of the court’s nine judges have turned over since the decision was handed down. (Five of them, however, are George W. Bush appointees.) More crucially, gay activists have spent the time since Dean dismantling the rationale behind the decision. The D.C. Council has made virtually every other reference in city law to human couplings gender-neutral rather than “husband and wife.” Retchin’s ruling, in fact, held that Dean is no longer applicable.

There is another possibility: Since the D.C. Human Rights Act is a creation of the D.C. Council, the council is free to carve out an exception for a gay marriage initiative. And that’s the hope of one small coalition of community activists led by Ward 5 advisory neighborhood commissioner Bob King—have the council authorize the vote, obviating the need for any legal challenges and saving the time and expense of gathering signatures.

But that, too, is almost certain not to happen. Seven votes would be near impossible to get, and a veto-proof nine votes is out of the question. Best-case scenario for initiative advocates: Ward 5 Councilmember Harry Thomas Jr., on the hot seat with an election a year off, convinces Chairman Vincent C. Gray and at-largers Michael Brown and Kwame Brown to join him, Yvette Alexander, and Marion Barry. It’s hard to see where the seventh vote would come from.

The remainder of the council, good lefties all, would never sign on to authorize a gay-marriage vote. And there’s good reasons not to, certainly. A referendum would mean an influx of out-of-town money and hateful rhetoric. Some are wary of exacerbating the city’s racial divisions (the July business poll shows 92 percent support for gay marriage among whites, but only 41 percent support among blacks). Some fear the lead-up would see increased violence against gays and lesbians. And compromising due to political circumstance would make it harder to stand on principle against referenda in other parts of the country.

LL, however, thinks even the council’s lefties have some good reasons to support a gay marriage vote. So here’s his appeal to the rest of the council:

Precedent: The national anti-gay-marriage forces are fond of pointing out that no referendum on legalizing gay marriage has thus far succeeded. The states that have legalized the practice have done so largely through their own courts. (Three states—Maine, New Hampshire, and Vermont—have legalized gay marriage through their legislatures, though Maine voters will revisit the issue this November.) So why not embrace the opportunity to host the first popular vote authorizing marriage equality? With California pushing a repeat marriage referendum off to 2012, and barring developments in Maine, the District has an opportunity to be the first place to have its residents vote gay marriage legal, turning the tide for good in favor of equal marriage rights across the country. Sure, they’ll say D.C.’s a bastion of godless left-wingers, but the retort to that one is easy: It’s the nation’s capital.

Legitimacy: LL understands the imperatives of representative democracy—that we elect lawmakers to govern by proxy for us, giving issues of great complexity and public import the careful attention and deep study the populace at large cannot possibly muster. Gay marriage is not an issue of great complexity, but it is an issue of great division, where it matters going forward whether the losers feel they’ve gotten a fair shake. To deploy one overworn example, the country still hasn’t gotten over the divisions caused by Harry Blackmun’s Roe v. Wade opinion for a 7–2 Supreme Court. To this day, plenty of good liberals feel state-by-state legalization of abortion would have been the preferred course, saving the country from spilled blood and a poisoned political climate. Have the vote, and when gay-marriage opponents lose, they’ll have one less thing to complain about. They’ll still complain, of course—just further out on the margins.

Congress: The District dodged congressional intervention when it decided to legalize other states’ gay marriages. Resolutions aiming to overturn the law languished, and appropriations riders never made it to the House floor. But when gay couples start showing up at the Capitol steps to actually get married, and Fox News cameras are there to cover it, don’t expect the Hill to look the other way. Having a popular vote of D.C. citizens strongly supporting gay marriage would make it a whole lot harder (but not impossible) for Congress to overturn.

Spite: A figure as hypocritical and clownish as Harry Jackson demands a thorough thrashing, so why not give it to him on his own terms? His pathetic appeals to respect the democratic process—while recording a YouTube video for national Christian-right audiences imploring them to contact their congressmen to interfere in it—demand no less than a full popular-vote beatdown.

Journalistic Self-Interest: A referendum, of course, would give LL plenty of excellent column fodder for the next 14 months.


Political Potpourri

Since former parks-and-rec director Clark Ray launched his at-large council campaign last month, he seems to be having some initial trouble differentiating himself from incumbent Phil Mendelson.

Take his stance on gay rights. Mendelson’s been all but perfect on equality issues during his three terms, leaving little daylight for Ray, who is gay. His campaign mastermind, Dupont activist Peter Rosenstein, told Metro Weekly recently, “When people say Phil has been good on GLBT issues, I say of course he has, and Clark will be just as good.”

The “just as good” strategy apparently also extends to campaign signage: Ray’s yard signs have started popping up around town—including at last month’s Columbia Heights Day, where Ray and Mendelson set up tables feet from each other. There LL noticed that Ray’s materials have been done in a shade of royal blue awfully similar to the one Mendo’s used for years. Both candidates’ logos also feature star-shaped cutouts in the sign letters.

“It’s heartening that Phil’s opponent sees Phil as the standard to strive for,” says Mendelson chief of staff Jason Shedlock. “Now if he starts to grow a mustache, things will really start to get weird.”

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Our Readers Say

I wonder where this poll was taken, it must have only been taken in the small Gay concentrated area of the city, if they believe 76% of DC Residents support Gay marriage they are caught up in a Fantasy. Civil Union may get a pass, even that is conflict of nature to add same sex marriage, is totally an abomanation. What is this world coming too.
I'm suspicious of those poll results. I don't think a gay marriage referendum would be anywhere near a landslide. In fact, my guess is that it would wind up being a very close call because of the far cry from near unanimity on this issue.
Good column. Popular vote on a civil right sets a bad precedent, that's the bottom line, Mike. As for Ray being "just as good" as Mendelson, I highly doubt that. Is Rosenstein losing his marbles? Maybe he's just bored and wants to keep himself busy?
Not on my back, you don't, LL. This is the only issue on which the "let the people decide" chorus have seen fit to demand a plebiscite. I am tired of waiting to receive my birthright of equal justice under the law. As it happens, GLAA has been preparing the way for this moment for decades, and as we anticipate David's marriage equality bill, we have the Human Rights Act on our side, we have justice on our side, and we have history on our side. Bob King can't get many people on board his effort, and couldn't even get the church doors open on one recent Saturday morning for an organizing meeting. The Dean case is already well and truly dead, as the Board of Elections and Judge Retchin demonstrated.
Professional Bigots like Harry Jackson are hoping for a referendum because it will give them more opportunity to be on TV and fund raise, However, the serious political class knows the power of the LGBT community. With around a 20% slice of the electorate (gay people vote at a very high rate) supporting this measure will prove to be political suicide. The LGBT community will will never forget the stand people take on this issue (including you LL). Let's face it, Vincent Gray, Kwame Brown and Michael Brown are smarter than you, LL. They know not to take a political stand that will bar their chances of higher office in DC forever. If you think a unified and dedicated minority doesn't have power, think a bit more about how many gun control laws are passing in this country.
This isn't a liberal case for a gay marriage vote. It is a slow news day case. You are at least honest in admitting the best reason to have an initiative is to fill column space.

The Council won't do this because they are oin favor of equal rights. Initiatives and referendums are ways to go around the duly elected representatives. There is no reason for them to collectively say, "we don't trust our own judgment." That is exactly the same as saying, "Don't vote for me, I don't know what I'm doing."
Clark Ray needs to hit Mendelson where Mendelson is weak: crime.
If you think Mendo is weak on crime, you must be breathing Ray's fumes. The gist of Ray's posturing is that Phil should have rushed through a complex bill rather than getting it right--and to hell with any civil liberties concerns, such as about the ill-considered gang provision. What Ray needs to do most is make the affirmative case for himself, rather than persist in his implausible smears against a popular incumbent.
The Ray candidacy is and always has been about Peter Rosenstein's ego and some ridiculous idea he has of himself as a "kingmaker". Anyone who witnessed Rosenstein's "Linda Blair" moment at the Stein Club mayoral endorsement meeting could legitimately question his sanity but not his complete lack of credibility. Even then Councilmember Fenty, Rosenstein's candidate, was cowering in a corner.

Clark Ray is a nice guy but he is to quote the vernacular "a tool". He was Fenty's tool until getting booted (softly booted no doubt as his current income/employment status is for some reason a closely gaurded secret) for firing a long time Parks and Rec staffer for simply applying the rules to the Fenty clan and getting caught at it.

Progressive allies, such as Phil should be focusing their energies on important issues at this time rather then fending off specious challenges from the parvenu fringe. Clark Ray should step down. Peter Rosenstein should just graciously disappear, his moment is over.
Big K, but I have access to a third poll that LL doesn't even mention, and it was designed and conducted and tabulated and analyzed by people who know a lot more about it than you, and its results point in the same direction as the ones LL mentions. Believe what you like, but this city is more tolerant than you imagine. Some population groups and some areas of the city, to be sure, are less supportive than others. That is inevitable in a diverse city.

In any case, I am wondering if you are familiar with the establishment clause of the First Amendment, which prohibits the establishment of any religion by the state. Your beliefs about gay marriages and gay unions being an "abomanation" (BTW, your spelling is abominable) are not a legitimate basis for public policy, especially for denying a class of citizens equal protection of the law. Thanks to decades of advocacy and organizing, as well as changes in the culture, this corner of the world is one of the world's most tolerant places. Sadly, as your post reminds us, we're not perfect.
I will be all for a vote on same-sex marriage if we can also vote on Marion Barry's marriages and on other civil rights issues. Should Republicans have freedom of speech? Should members of religious groups be allowed to vote? Should women be able to join the police force? Until then, I don't think same-sex marriage or other questions of minority rights should be voted upon.

I am also skeptical about the polls you cite. The biggest correlation between support and opposition to gay rights is level of education. The more educated people are, the more they are in favor of equal rights. Unfortunately, the education system in the District does not give one much confidence in the level of education of our citizenry.
But what if the unelected people in charge with no votes involved don't rule the way you like? Will you still think that the matter shouldn't be left to the masses like in hard-line Islamic regimes such as Iran? You're amazing.
It's white gay males like mean spirited evil bastard David Catania pushing gay marriage in the District of Columbia. Gay marriage is not important to black or Hispanic people. This poll is bullshit! I will never support gay marriage. I can't stand many of these racist eilitist gay white men. They walk around like they are "Gods" gift to the world based on the fact, they are white. White males are afford privileges in the United States not afford to black men or non white men. Fuck white gay males!
Wouldn't the Privileges and Immunities and the Full Faith and Credit clauses in Article IV of the Constitution, requiring the states to recognize the laws of other states, make moot the D.C. Council's vote to respect all marriages performed in the various states? Is D.C. exempt from these clauses because it is not a state? If the United States government itself has to respect these clauses, how the D.C. government not?

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