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Same-sex marriage (SSM) in Washington, DC

A court case to authorize a plebiscite on
same-sex marriage (SSM): 2009 to 2010

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Still another -- perhaps the last -- attempt to derail same-sex marriage (SSM) in D.C.:

As noted elsewhere in this section, Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, MD, is the head of Stand 4 Marriage DC. Although the name of the organization seems to imply that they favor marriage, their main goal is to prevent same-sex couples from marrying. The group is a coalition of local conservative religious leaders that has repeatedly sought approval for a referendum. That would allow the public to directly vote on marriage equality in the District of Columbia. Their hope is that the public would prevent two District laws from being enforced that:

  • Recognize SSMs that had been legally solemnized elsewhere, and

  • Allow loving, committed same-sex couples to marry in DC.

Stand 4 Marriage DC had appeared on two occasions before the Board of Elections and Ethics to request such a referendum. Both attempts were unsuccessful because of a law: D.C. Code section 1-1001.16(b)(2). It prohibits the Board of Elections and Ethics from accepting any initiative that could result in a form of discrimination that is prohibited under the District of Columbia Human Rights Act. Discrimination based on gender or sexual orientation is one of the forms of discrimination prohibited by that Act. Thus the proposed referendum is illegal.

The group's plebiscite was titled the "Marriage Initiative of 2009." It would have had voters express their opinion on the proposition that "Only marriage between a man and a woman is valid and recognized in the District of Columbia."

Having been twice turned down by the Board, their next option was to launch a lawsuit to have the Board's decision overturned by the D.C. Superior Court.

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Appeal to the Superior Court:

Bishop Jackson and Stand 4 Marriage DC filed a lawsuit on 2009-NOV-18 in the Superior Court to appeal the decision of the Board of Elections and Ethics. It was titled "Jackson v. District of Columbia Board of Elections and Ethics." The Alliance Defense Fund, a fundamentalist Christian legal defense group joined with attorneys from Stand4MarriageDC to pursue the case.

Senior Legal Counsel Austin R. Nimocks of the Alliance Defense Fund said:

"The people of D.C. have a right to vote on the definition of marriage. ... The D.C. Charter guarantees the people the right to vote, and the council cannot amend the charter for any reason, much less to deny citizens the right to vote. ADF will defend the right of the residents of our nation’s capitol to participate in a legitimate democratic process in the district." 1

The D.C. Charter is the constitution of the District of Columbia.

During early 2010-JAN, 39 members of Congress filed a brief with the court in support of the appeal.

On 2010-JAN-14, Judge Judith N. Macaluso of Superior Court ruled in favor of the Board of Elections and Ethics. She noted that a successful plebiscite to disallow same-sex marriage would discriminate against lesbians, gays, and bisexuals on the basis of their sexual orientation. This is a prohibited form of discrimination under the DC Human Rights Act. Thus, Section 1-1001.16(b)(2) of the D.C. Code applies, and forbids the Board from authorizing this type of plebiscite.

Judge Macaluso concluded that the Board had "properly rejected the proposed initiative." She also rejected the plaintiffs' arguments that same-sex marriage should be illegal in Washington DC because of the 1995 Dean v. District of Columbia decision by the D.C. Court of Appeals. In that case, the court had ruled that the city did not have to recognize SSMs because the DC government had previously shown its intent to oppose such marriages. However, times change. By passing two bills on SSM and having both signed into law by the mayor, the government has recently shown very convincing support for marriage equality that includes same-sex couples.

Judge Macaluso wrote:

"These clear manifestations of intent to alter the traditional definition of marriage did not exist when Dean was decided. Dean expressly relied upon the absence of such indications in concluding that the Council intended to retain the definition of marriage as occurring only between a man and a woman. Under these circumstances, Dean's holding is no longer controlling."

Council member David A. Catania (I-At Large) was the sponsor of the D.C. Council's bill to legalize SSMs, The mayor signed that bill into law during 2009-DEC. Catania called the Superior Court decision:

"... thorough and far-reaching. ... The ruling, which addressed the substantive legal issues before the court, sustains the District's tradition of treating all citizens equally under the law."

Brian Brown, executive director of the National Organization for Marriage (NOM) -- a group that opposes same-sex marriage -- said:

"Had gay-marriage opponents been able to hold a Prop. 8-style referendum in D.C., Washington would likely have followed the national trend and banned same-sex marriage." 2

Brown was referring to the California Proposition 8 in which a slim majority of voters defeated same-sex marriage in that state.

On 2010-JAN-14, Bishop Jackson and his attorneys announced that they would appeal the Superior Court's decision to the D.C. Court of Appeals. They noted that if their referendum passed, same-sex couples would would not be allowed to marry, and thus be discriminated against. However the laws in question were written during the late 1970s before same-sex marriage was a major topic of discussion. Thus, they argued that these laws should not apply in this situation. They felt that their referendum should proceed.

Jackson said:

"We are fighting for justice and defending the rights of the people of the District of Columbia. We have always anticipated that our quest for voting rights on the issue of marriage would end up in our higher appeals court, and today's ruling confirms that is where the issue is headed." 3

Many lesbians, gays, bisexuals, and civil rights promoters have suggested that it is a strange form of justice to have the public vote to terminate the marriages of loving, committed same-sex couples and prevent other such couples from marrying, solely because of the gender of the spouses.

As a result of the Superior Court decision, Bishop Jackson and Stand 4 Marriage DC had run out of time in their attempt to prevent same-sex couples from marrying in D.C. Licenses were made available to couples in early 2010-MAR. This did not allow sufficient time for the D.C. Court of Appeals to act.

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The lawsuit goes to the D.C. Court of Appeals:

Bishop Harry Jackson and seven other D.C. voters appealed the Superior Court ruling to the D.C. Court of Appeals. This court is the equivalent of a state's supreme court.

Oral argument were heard on 2010-MAY-04. According to the Washington Post's D.C. Wire:

"It was one of the first times all nine judges sat for an initial argument."

"Lawyers arguing against allowing ... [SSM] marriages argued that D.C. voters should have been allowed to vote on the issue. Attorneys for the District, however, argued that D.C. Council acted within District laws in voting on and eventually passing the legislation."

"Several dozen supporters of Jackson's bid dressed in white and held a rally after the hearing in support of marriages between a man and a woman. Several supporters of same-sex marriage also attended the hearing wearing T-shirts reading 'I Do'."

"About 1,400 same-sex couples have applied for marriages since the ceremonies were legalized [on 2010-] MAR-03, according to a court official." 4,5

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Peter J. Smith, "Appeal filed to give D.C. voters right to vote on gay marriage law," Life Site News, 2010-FEB-09, at: http://www.lifesitenews.com/
  2. Thaddeus M. Baklinski, "Judge says public vote on D.C. gay marriage law would violate human rights act," Life Site News, 2010-JAN-15, at: http://www.lifesitenews.com/
  3. Tim Craig, "D.C. judge rules against marriage referendum," Washington Post, 2010-JAN-15, at: http://www.washingtonpost.com
  4. Keith L. Alexander, "D.C. Court of Appeals hears arguments for and against same-sex marriage," D.C. Wire, 2010-MAY-04, at: http://voices.washingtonpost.com/
  5. A 92 minute audio file of the hearings in Harry Jackson et al. v. District of Columbia Board of Elections and Ethics is online at: http://glaa.org/ This is an MP3 file.

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Copyright © 2010 & 2011 by Ontario Consultants on Religious Tolerance
First posting: 2010-FEB-03
Latest update: 2011-JAN-21
Author: B.A. Robinson
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