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Same-sex marriage (SSM) in Washington, DC

A court case to authorize a plebiscite on
same-sex marriage (SSM): 2010 to 2011

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The D.C. Court of Appeals narrowly rejected the appeal:

On 2010-JUL-15, the D.C. Court of Appeals voted narrowly -- 5 to 4 -- that the D.C. Board of Elections and Ethics "... was not obliged to allow initiatives that would have the effect of authorizing discrimination prohibited by the Human Rights Act to be put to voters." 1 The court ruled that they:

"... affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative.  As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA”); (2) the Human Rights Act safeguard is not inconsistent with the Council’s intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council’s legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination;  and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination.  On the last of these points, our court is unanimous." 2

Chief Judge Eric Washington, writing for the minority, stated:

"This court must decide, as a matter of first impression, whether the ... "Human Rights Act limitation" is a valid restriction on the right of initiative. ... [W]e would hold that it is not."

"Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative.  In light of the majority’s holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majority’s conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002." 2

Human Rights Watch, a gay-positive human rights group, was pleased at the ruling. Its President Joe Solomonese said:

"The court's ruling today is a significant victory for justice, the rule of law, and the protection of all D.C. residents against discrimination. ... It's time for the National Organization for Marriage to realize equality is here to stay no matter how much money they want to throw at turning back the clock." 1

In a statement, Solomonese wrote:

"The D.C. Council made a wise decision decades ago that no initiative should be permitted to strip away any individual’s civil rights. The Court unanimously found that the proposed anti-marriage initiative would have the effect of causing discrimination, and in doing so, stood up for the entire D.C. community."

"D.C.’s elected officials and two level of courts have spoken. However, the NOM may very well grasp at straws by appealing the case to the U.S. Supreme Court in a desperate attempt to further their misguided efforts." 3

Penny Nance, Chief Executive Officer of Concerned Women for America (CWA), a fundamentalist Christian group, denounced the ruling. She said that:

"The D.C. Court of Appeals strikes at the heart of democracy with this activist ruling. ... Knowing that whenever the issue of homosexual marriage is left to the voters the people overwhelmingly choose to protect traditional marriage ... a handful of activist judges who want to promote what they see as a desirable policy for our country, have taken matters into their own hands and imposed homosexual marriage by judicial fiat. ... No question, the case should be appealed to the United States Supreme Court." 1

Bishop Jackson said that today is a "sad day." However, he was "encouraged" by the split vote. He said:

"This is a very precedent-setting decision for District citizens because of the issue of whether an initiative can be blocked by District laws. The people have a right to vote on this issue." 1

Austin Nimocks, senior legal counsel for the Alliance Defense Fund said:

"The decision from the District of Columbia Court of Appeals today means that those living in our nation's capital are being denied their most fundamental freedom - the right to vote. We are considering our options to right this wrong, which include asking the Supreme Court of the United States to consider this case." 1

However, some commentators believed that it may not be possible to appeal this particular case to the U.S. Supreme Court as there does not seem to be a federal question involved. The Court of Appeals' ruling may be binding and not subject to appeal.

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What would be the result if a plebiscite were actually held?

While some early initiatives and propositions have passed with large majorities as Nance said, this is not the most recent experience. Proposition 8 in California only passed by 3%; a similar vote in Maine also passed by only 3%. In both cases, anti-SSM groups invested millions in fear-based TV advertisements that successfully swayed public opinion.

According to a paper by Jeffrey Lax and Justin Phillips of Columbia University that they published in the American Political Science Review, a majority of voters in five states supported SSM during 2009. Further, the level of support has been increasing in most states by 5 to 10 percentage points during the previous five years. Unfortunately, Lax and Phillips' paper only dealt with the 50 states. They did not publish data for the District of Columbia.

However, a series of polls conducted by the Washington Post during between 2003-SEP and 2010-JAN indicated that if the plebiscite were held in the District of Columbia, it would fail by a sizeable margin. 4

Washington Post poll on same-sex marriage (SSM)
Date Support for SSM Opposition to SSM No opinion/no answer
2003-SEP
37%
55%
7%
2004-JAN
41
55
4
2004-FEB
39
55
6
2004-MAR
38
59
3
2004-AUG
32
62
5
2005-AUG
39
58
3
2006-JUN
36
58
5
2009-APR
49
46
5
2010-JAN
56
35
9

Many previous polls across the U.S. have shown that there is a large gap between Black and White voters on SSM. However, in Washington D.C., the difference seems to be unusually large. The Washington Post poll showed 83% support and 12% opposition among White voters. Black voters indicated 37% support and 51% opposition.

Another interesting factor was the degree of support and opposition. In their poll for 2010-JAN, results were highly polarized. Most of the voters who responded were either strongly supportive or strongly opposed to SSM:

  • Strongly supportive: 42%
  • Somewhat supportive: 13%
  • Total supportive: 56%

  • No opinion 9%
  • Somewhat opposed: 5%
  • Strongly opposed: 30%
  • Total opposed: 35%.

If social and religious conservatives were successful in obtaining a plebiscite in D.C., they might lose by almost a 2 to 1 margin. That would be a dramatic reversal of the previous 31 plebiscites, initiatives, propositions and state constitutional amendments. They have won all 31, although with gradually diminishing margins.

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Appeal is made to the U.S. Supreme Court who declines to hear case:

Stand 4 Marriage DC, under the leadership of Rev. Harry R. Jackson Jr, and the National Organization for Marriage appealed the case to the U.S. Supreme Court. They and other national groups involved oppose marital equality.

On 2011-JAN-18, the Court announced that it would not hear the case involving a plebiscite on SSMs. The court only takes on a small percentages of cases presented to it. As is its normal policy, It gave no reason when it refused to hear the appeal.

D.C. Council member David A. Catania (I-At Large), the author of the city's same-sex marriage law, said: "This represents the end of the judicial road for opponents. They have a political remedy that I suspect they will pursue."

The "political remedy" would be to have Congress intervene and force the District of Columbia to hold a referendum.

The Washington Post reported:

"Eleanor Holmes Norton (D), the District's nonvoting delegate, said she and Mayor Vincent C. Gray (D) plan to meet next week with [Rep. Jo Ann] Emerson [R-MO] and [Rep Trey] Gowdy [R-SC] to deliver a 'hands-off' message. She also called on District residents to refrain from lobbying the Hill for intervention:

"No self-respecting resident of the District of Columbia would ever want to ask the Congress of the United States to overturn local laws, any more than any Baltimorean or Virginian would ask the Congress to overturn local law," she said.

Brian Brown, executive director of the National Organization for Marriage, said that the city government's "egregious actions" to prevent the plebiscite justifies further intervention. The "egregious actions" were to obey a city law that prohibits plebiscites that restrict civil rights of a minority.

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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. John Jalsevac, "People Have no Right to Vote on Gay 'Marriage' Rules D.C. Appeals Court," Life Site News, 2010-JUL-15, at: http://www.lifesitenews.com/
  2. Chris Geidner, "DC Court of Appeals upholds decision denying marriage initiative," Metro Weekly, 2010-JUL-15, at: http://www.metroweekly.com/
  3. Pete Winn, "D.C. Court of Appeals Bars City Referendum on Same-Sex Marriage; Appeal to Supreme Court Likely," CNS News, 2010-JUL-15, at:http://www.cnsnews.com/
  4. "D.C. Poll," Washington Post, 2010-JAN-31, at: http://www.washingtonpost.com/
  5. Keith L. Alexander, "Same-sex marriage in District narrowly upheld by D.C. Court of Appeals," Washington Post, 2010-JUL-16, at: http://www.washingtonpost.com/

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