WASHINGTON -- The District of Columbia became the sixth jurisdiction in the U.S. to legalize "gay marriage" March 3, but that could change if a plan to rescind the law and have the nation's capital follow California's lead is successful.
The law went into effect after being passed by D.C.'s city council and signed in December by Mayor Adrian Fenty, and the Democratic-controlled Congress chose not to overturn the law during its 30-day period of review.
Opponents of the law, though, hope to take advantage of a section in the D.C. Charter that allows citizens to gather signatures to place the issue on the ballot -- something that opponents have been trying for months to do, only to be thwarted by the D.C. Board of Elections and by various courts, which upheld the board's stance that such an initiative would "authorize discrimination" against homosexuals.
Hope may seem lost for conservatives, but they were heartened March 2 when Supreme Court Chief Justice John Roberts -- while turning back their long-shot emergency appeal to prevent the law from taking effect -- said in a three-page opinion that their "argument has some force." Opponents of the law, he noted, could appeal again to the Supreme Court once the D.C. Court of Appeals hands down a final decision on the "relevant legal questions."
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Conservatives also are emboldened by the fact that it's an election year and that a new Congress may have a more conservative makeup that could challenge the D.C. council on the "gay marriage" law.
The National Organization for Marriage, which helped defeat "gay marriage" in recent months in Maine, New Jersey and New York, says the issue in D.C. is far from settled.
"We're fighting through the courts. We think we will ultimately win and get the chance to use the initiative process to get the people of D.C. a vote," Maggie Gallagher, president of the National Organization for Marriage, told Baptist Press. "... Our fundamental reason for optimism is that the legal arguments on their side are very weak. What they're saying is that the politicians on the D.C. city council can override a right granted in the charter. And I don't think that makes any sense."
The National Organization for Marriage also is putting together questionnaires for politicians running for House seats, asking them their stance on letting D.C. citizens vote.
"We think that one of the top three marriage issues is whether or not you would support giving D.C. citizens the right to vote on marriage," Gallagher said. "We'll continue to push this issue."
California voters in 2008 overturned a "gay marriage" ruling by that state's court, and Maine voters last year reversed a "gay marriage" law that had passed the Democratic state legislature and was signed by the Democratic governor. All 31 states that have considered the issue have sided with traditional marriage. But so far, D.C. citizens have not even been allowed to begin gathering signatures, because the Board of Elections said such a petition would violate the city's Human Rights Act and allow discrimination. Gallagher likens the D.C. Charter to a state constitution and argues that neither the Board of Elections nor the D.C. city council can "unilaterally change" the charter, because both are governed by it.
"It's as if the legislature in California had said, 'You can't pass Prop 8 because we say you can't use the initiative process on gay marriage,'" Gallagher said. "The legislature doesn't have the power to unilaterally change the Constitution."
The D.C. Charter allows for two types of citizen-backed measures: a referendum, which applies only to a bill that has passed the council and has yet to go into effect, and an initiative, which can appear on the ballot at any time.
The appeal to Roberts -- who as chief justice oversees D.C. matters -- pertained to a referendum and noted that if the Supreme Court did not take action, the law would already be in effect and the referendum process would not apply. Roberts noted the dilemma but also observed that the petitioners already were pursuing a ballot initiative and that -- if they lost at the Court of Appeals -- "petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time." The lawsuit was filed by the Alliance Defense Fund and Stand for Marriage D.C.
The Southern Baptist Convention weighed in on the matter in February when Richard Land, president of the Ethics & Religious Liberty Commission, joined two dozen other Christian and conservative leaders in urging Congress to pass legislation requiring a public vote.
"The people whom we represent expect each member of the Senate [and House of Representatives] to take action to permit the people in the District of Columbia the opportunity to vote by referendum on this most important issue of marriage," Land and the others wrote in the Feb. 22 letter.
Religious groups warn that "gay marriage" legalization will negatively impact religious freedom, affecting everything from how church groups operate to what is taught in public schools. After it was legalized in Washington, D.C., Catholic Charities chose not to extend health insurance benefits to new employees or new enrollees -- out of fear that it could be forced by the city to cover a homosexual spouse. It also chose to end its foster care program rather than place children with same-sex couples.
Gallagher noted that numerous nationwide organizations -- many of them faith-based -- are headquartered in D.C.
"Any organization that has a large enough number of employees could hire someone who enters a same-sex marriage, and they would either have to treat that union as a marriage or run afoul of the discrimination laws," she said.