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Same-sex marriage (SSM) in Washington, DC

Second initiative rejected by Board.
Court cases launched to force plebescite.

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The story so far:

bullet 2009-MAY-05:The City Council passed the "Jury and Marriage Amendment Act of 2009" (JAMA). This law recognized same-sex marriages (SSMs) solemnized elsewhere.
bullet 2009-MAY-27: Religious and social conservatives file with the District of Columbia's Board of Elections and Ethics their first request to hold an initiative. If successful it would have repealed the law.
bullet 2009-JUN-10: The Board held hearings on the request
bullet 2009-JUN-15: The Board rejected their request. A subsequent lawsuit confirmed the Board's decision.

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Second try for initiative by opponents of same-sex marriage:

On 2009-SEP-01, social and religious conservatives proposed a new initiative to the Board of Elections and Ethics. It would prevent same-sex marriages being registered or recognized in the District of Columbia. It was called the "Marriage Initiative of 2009." It proposed the addition of a section to the D.C. Code § 46-401 that stated: "Only marriage between a man and a woman is valid or recognized in the District of Columbia." This would prevent the issuance of marriage licenses to loving, committed same-sex couples. It would also refuse recognition of SSMs performed elsewhere. A total ban!

This request had no chance of succeeding. The Board had already ruled a few months earlier in the first initiative request that restrictions on SSM violated the District of Columbia's Human Rights Act (HTA), and that legislation prevented the Board from approving such discriminatory initiatives.

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Opponents to same-sex marriage pursue lawsuit:

As expected, on 2009-NOV-17, the Board of Elections and Ethics rejected the second request for a referendum.

One day later, on 2009-NOV-18, the petitioners submitted their "Petition for Review of Agency Decision and for Writ in the Nature of Mandamus" to the Superior Court of the District of Columbia. They maintain that the board's denial was based on a ultra vires act by the District of Columbia Council. i.e. the action went beyond the legislative powers of the Council. Thus the decision is invalid and the initiative should proceed.

On 2010-JAN-06, the American Center for Law and Justice, a fundamentalist Christian legal defense organization that is part of Pat Robertson's Liberty University, filed an amicus brief to the D.C. Superior Court. 2,3,4,5 The brief supports the petitioner's lawsuit. The brief has the support of 39 members of Congress: 37 are members of the House, including House Minority Leader John Boehner (OH) and Minority Whip Eric Cantor (VA.) Two are Senators: James Inhofe (OK) and Roger Wicker (MS). All are Republicans. 1

The main points raised by the amicus brief are:
bullet The District Charter originally had no provision for citizens to request a referendum. The charter was later amended to include this right, as long as the initiative did not concern appropriations.

bullet When the District Council later implemented the the Initiative Referendum and Recall Charter Amendments Act of 1977, they added a second limitation: that any initiative must be rejected by the Board of Elections and Ethics if it: "authorizes, or would have the effect of authorizing, discrimination prohibited under" the Human Rights Act.

bullet The ACLJ suggests that this additional limitation was beyond the legislative authority of the Council, and thus cannot be applied. It would have required an amendment to the DC charter.

bullet A second argument states that the marriage laws predated the Human Rights Act. When the latter was passed, there was no perceived conflict between the Human Rights Act and the marriage laws. It would be absurd to assert that: "... an initiative solidifying the historical and long-standing marriage laws of the District now violates the Human Rights Act." The ACLJ concludes:
"Because only opposite-sex marriage was permitted within the District at the time the Human Rights Act was enacted (and for more than thirty years thereafter), it would be absurd to uphold the ... [board's] decision that the proposed initiative now violates the Human Rights Act."
bullet The ACLJ concludes that the denial of the 2009 petition for a referendum is not valid. They asked the D.C. Superior Court to reverse the board's decision.

"DCwriter1," a reader of the D.C. Wire report 5 commented:

"It never ceases to amaze me the hubris of the signers of this brief. They say the federal government has too much control, but they want to overturn the decision of our democratically elected council. Got to love full-throated cognitive dissonance."

"That being said, I say bring on a referendum. The District's gay community is successful, articulate, and knows how to organize. It would be good for the country to see stand up for our rights. Most of us come from somewhere else in the country. A plebiscite upholding marriage equality in the nation's capitol could have some positive trickle-down effects."

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2010-JAN-14: Superior court dismisses case:

Judge Judith N. Macaluso of the Superior Court of the District of Columbia rejected the plaintiffs' request. 6 The main points of the ruling are:

bullet The District Charter was created in 1973 without any provision for voters' initiatives. The Charter Amendments Act (CAA) created this right in 1978. Since it was an amendment, it was necessary for the Council to pass an enabling act, for the voters to approve it, and for the Congress to review it. This process was successfully followed and the following text was added to the CAA:
" 'Initiative' means the process by which the electors of the District of Columbia may propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval."
bullet At the same time, the CAA directed the council to "to adopt such acts as are necessary to carry out the purpose of this subpart [on initiatives, referendums, and recalls] within 180 days of the effective date."

bullet The Council did this by creating the Initiative, Referendum and Recall Procedures Act (IPA). Having been authorized to do this by the CAA, this only required a simple act of Council.

bullet Judge Macaluso of the Superior Court wrote: "In the Committee Report on the bill that became the IPA, this intention was expressed in strong terms: The ... initiative process may not be used to place the Government in the posture of affirmatively condoning discrimination..."

bullet The IPA authorizes the Board to refuse an initiative for any one of 5 reasons, one of which is: "The measure authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2." Title 2 is the Human Rights Act.

bullet Thus, the Board had no option but to reject the "Marriage Initiative of 2009" just as they would have to reject any initiative that would discriminate on the basis of race, gender, sexual orientation, etc.

Judge Macaluso wrote:

" The Human Rights Act provides, in pertinent part, that 'It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived ... sexual orientation [or] gender identity ... of any individual. ... Under current law, same-sex individuals in the District of Columbia who were validly married in other states are considered validly married in the District of Columbia. ... The proposed initiative would invalidate D.C. Code ... by establishing that 'only marriage between a man and a woman is valid or recognized in the District of Columbia.' If enacted, the initiative would deprive only same-sex individuals of the legal status, rights, and privileges they enjoy as married persons. Such an initiative patently 'authorizes or would have the effect of authorizing discrimination based upon ... actual or perceived ... sexual orientation [or] gender identity.' The Board properly rejected the proposed initiative on this ground. ..."

"The fact that the proposed initiative, if passed, would violate the Human Rights Act provides an independent basis for upholding the Board’s decision: the initiative runs afoul of an implied exclusion barring provisions that violates the state’s law."

There are additional considerations evaluated by the court that can be read in Judge Macaluso's ruling. 6

She ordered that the "Petitioners' Motion for Summary Judgment" and their request for a writ in the nature of mandamus was to be denied. She furthered that the "District of Columbia's Motion to Dismiss, or in the Alternative, for Summary Judgment" was granted.

Brian Brown, the executive director of the National Organization for Marriage -- a group opposed to marriage equality -- commented:

"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." He did not support his belief with polling data.  7

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2010-FEB-19: Still another court case denies referendum:

Two fundamentalist Christian news services, One News Now and CitizenLink reported on still another unsuccessful court challenge attempting to have a plebescite on same-sex marriage authorized in Washington DC. For some reason, neither source mentioned the name of the judge or the name of the court. It was Judge Brian F. Holeman of D.C. Superior Court. He said:

"My tentative ruling is that the court is persuaded by the District, with regard to the absence of authority of the court, to utilize power to usurp the legislative process.''

Judge Holeman will follow up with a written ruling later.

Citizenlink reports that a survey by the Washington Post indicates 59% of D.C. adult residents favor the holding of a referendum.

Austin Nimocks is an attorney for Alliance Defense Fund, a fundamentalist Christian legal defense agency, who is representing Bishop Harry Jackson and others trying to prevent the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 from becoming effective on 2010-MAR-03. Nimocks said:

"The judge gave us a preliminary ruling which he will memorialize in writing, denying the relief that we were requesting, denying stopping the same-sex marriage legislation from going into effect until the citizens have had a right to vote."

He also said:

"A new definition of marriage should not be imposed upon the people of D.C. without their consent, and the majority of D.C. residents agree. The court should support the people's right to vote on this referendum, which would allow them to partake in a legitimate democratic process to decide a critical matter that affects everyone in the district."

He seems to imply that 50% of the voters plus one vote in a referendum should be sufficient to eliminate any minority's human right. If this principle were allowed in Washington DC, then nobody's rights would be safe from elimination by a simplle majority vote.

Bob Summersgill, a gay supporter of SSM, said that the ruling made for a:

''very good day. ... I was expecting this, because you would have to have a really activist judge to create new law that allows them to stay a bill."'

Mark Levine, the pro bono counsel for the Gertrude Stein Democratic Club described the petitioner's request as a:

"'... last-ditch, last-gasp effort by opponents of marriage equality. ... It happened exactly as I expected it would. I was impressed with the judge. I was impressed by the arguments made by our side. I think that [Nimocks] made the best arguments he could for his side, but he will lose. They're asking the D.C. Superior Court to stop legislation in its tracks, which has never been done before in the 30-plus years of 'home rule.' It's a pretty extraordinary thing. They're asking the judge to put his opinion above that of the D.C. Council, and the D.C. mayor, and that of Congress. … He asked specifically, 'Where is the authority for me to do this?' And they couldn't cite any.''

Paul A. Ainsworth is an attorney from Covington and Burling LLP, who represents the pro-SSM group Campaign for DC Families and two same-sex couples who hope to marry in Washington. He said:

''We're pleased with the court's tentative ruling, because we think this is an important victory for our clients and other same-sex couples in the District. ''Every court that has looked at this issue has agreed that this type of ballot measure is inappropriate in the District of Columbia. We don't put the rights of minorities up for vote.''

Nimocks said that the ruling would be appealed. 8,9.10

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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. "Opponents of gay marriage file for referendum," Associated Press, 2010-JAN-06, at: http://www.washingtonexaminer.com/
  2. Jay Sekulow, "Defending Marriage in D.C.," American Center for Law & Justice, 2010-JAN-06, at: http://www.aclj.org/
  3. Text of the American Center for Law and Justice's Amicus Curiae, Civil Action No. 2009 CA 008613 B, Superior Court of the District of Columbia,  2010-JAN-05, at: http://www.aclj.org/ This is a PDF file.
  4. "Kyle," "Robertson's ACLJ Files Anti-DC Marriage Brief On Behalf of 39 GOP Members of Congress,"  People fo rthe American Way, 2010-JAN-06, at: http://www.rightwingwatch.org/
  5. Tim Craig, "GOP Congress members wade into same-sex marriage debate," D.C. Wire, Washington Post, 2009-JAN-06, at: http://voices.washingtonpost.com/
  6. "Civil Action #2009 CA 008613 B," Superior Court of the District of Columbia, 210-JAN-14, at: http://www.dccourts.gov/
  7. Thaddeus M. Baklinski, "Judge Says Public Vote on D.C. Gay Marriage Law Would Violate Human Rights Act," Life Site News, 2010-JAN-15.
  8. "D.C. Voters May Not Have Final Say on Marriage," CitizenLink, 2010-FEB-22, at: http://www.citizenlink.org
  9. Charlie Butts, "DC citizens blocked again on marriage vote," One News Now, 2010-FEB-20, at: http://www.onenewsnow.com/
  10. Yusef Najafi, "Court Sides with City. Judge denies motion to halt marriage-equality law," Metro Weekly, 2010-FEB-19, at: http://metroweekly.com/

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
First posting: 2010-JAN-06
Latest update: 2010-JAN-23
Author: B.A. Robinson

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