Last week, a Washington, D.C. election board rejected a ballot initiative to overturn the city council's recent vote in favor of same-sex marriage. A coalition of traditional marriage supporters quickly sprang into action, appealing the board's decision in the district Superior Court to keep their petition alive. If they succeed -- a ruling could come as early as today -- the brunt of their work is ahead of them: they must collect 30,000 signatures (5 percent of the D.C. voting population) by a rapidly approaching deadline. If they fail, the nation's capital will begin to recognize same-sex marriage after July 6.
The D.C. election board cited a decades-old human rights law to declare unequivocally that a popular vote on marriage is tantamount to a breach of civil rights, a conclusion that many lawmakers and courts have hinted at, but few have spelled out. According to the board, the 1977 Human Rights Act requires that "the initiative and referendum process would never be used to interfere with basic civil and human rights."
Supporters of same-sex marriage -- and even some nominal opponents -- are not shy about invoking civil-rights language. Speaking of the federal Defense of Marriage Act, President Obama recently declared, "It's discriminatory, it interferes with states' rights, and it's time we overturned it." New York Gov. David Paterson has branded his bill redefining marriage as a civil-rights struggle as well.
A number of D.C. residents, particularly within the black community, believe that this framing of the issue obscures some crucial social questions. Bishop Harry Jackson, senior pastor of Hope Christian Church, filed the referendum petition and has objected strongly to the characterization of marriage as a civil rights issue. "Marriage is not a civil right in my view, because historically society has sought to put boundaries around it," he told TAS.
For example, he said, near relatives have always been prohibited from engaging in marriage unions, because of the detrimental effect such unions might have on society. Likewise, relationships involving more than two partners, such as polygamy or polyamory, have never been granted recognition by the government even though advocates of such lifestyles have pursued it.
"I think that the sociological problems of this are what make it not a civil right," Jackson said. "If you change the definition of marriage, you have to change the definition of family. If you change the definition of family, you have to change the definition of parenting and its ramifications." This raises critical questions, he said, because of the paucity of data points and time-tested study proving the legitimacy of gay marriage as an appropriate parenting alternative, for one thing, and societal norm, for another.
Moreover, a number of petition signers find that the term "civil rights," like "marriage," loses value when it loses a certain vital degree of specificity. Dale Wafer, a signer of the D.C. marriage petition and pastor of the Harvest Church, said that as an African American, he found the term "highly offensive" when applied to a group of people who enjoy social and political influence and may even lay claim to a broad cross-section of the benefits to which a marriage would entitle them, a situation far different from that of African Americans who endured disenfranchisement and physical threats and abuse during the civil rights movement of the 1960s. Wafer indicated other issues that should take precedence in this debate, including morality and long-term social outcomes.
Even some thoughtful supporters of same-sex marriage believe there is more to the issue than civil rights. Jonathan Rauch wrote in the New Republic three years ago, "Advocates who say that gay marriage is just a matter of civil rights are wrong. It certainly is a civil rights issue, just as it is a moral issue; but it is not only a civil rights or moral issue. It is also a family policy issue -- the most important family policy issue now facing the country."
Unlike Rauch, however, most supporters of traditional marriage do not believe same-sex marriage will be good for children. Jackson maintains that his coalition will pursue "what is best for kids, not merely admissible." The debate is far from over, so why exclude the voters?
Alliance Defense Fund attorney Brian Raum told TAS that Washington, D.C. demonstrates the disconnect between voters and government officials on the marriage question. With California's Proposition 8 and over a dozen similar ballot initiatives, the people have repeatedly affirmed the idea that marriage is between a man and a woman (though polls in a few states have recorded pluralities in favor of same-sex marriage). Based on this history, Raum said it is important to let the initiative process go forward.
"The referendum and initiative process in D.C. and other places is designed to keep the legislature in check," Raum said. "When the courts or the legislature do something outside the will of the people, the referendum process enables them to step in."
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