Last Wednesday several DC voters filed a lawsuit (PDF) asking the DC Superior Court to allow DC residents to vote on whether same-sex marriages from other jurisdictions should be recognized in the District. The lawsuit followed a ruling from the DC Board of Elections and Ethics that DC residents should not be allowed to vote on whether same-sex marriages performed in other jurisdictions should be recognized in DC.
In May, the DC Council passed legislation that would recognize same-sex marriages performed in other jurisdictions. Individuals who support marriage as the union of husband and wife argued that the DC Council should have sought more public input before pushing through such controversial legislation. To give DC residents a greater say in the marriage policy of the District, several DC voters proposed that the District hold a referendum on the question and allow DC residents to vote.
That referendum proposal was shot down recently by two unelected bureaucrats sitting on the DC Board of Elections and Ethics, the DC agency charged with deciding whether a proposed referendum presents a proper subject for the referendum process. The two-member panel reasoned that allowing DC residents to vote on whether to recognize same-sex marriages performed in other jurisdictions would authorize or have the effect of authorizing discrimination in violation of the District’s Human Rights Act, which treats sexual orientation as a protected class in the District. A 1995 DC Court of Appeals decision had concluded that the Human Rights Act did not create a right to same-sex marriage, but the Board concluded that certain changes in DC law meant that case did not control the outcome of the Board’s decision. Because the DC Code does not permit a referendum that would authorize or have the effect of authorizing discrimination in violation of the Human Rights Act, the Board ruled that DC voters could not vote on whether to recognize same-sex marriages from other jurisdictions.
The lawsuit filed last week asks the DC Superior Court to review the Board’s ruling and to issue a “writ in the nature of mandamus” that would compel the Board to accept the referendum proposal. If the court rules in favor of the plaintiffs, proponents of the referendum would then be required to circulate a petition and secure the signatures of five percent of the registered voters in the District, including five percent of the registered voters in at least five of the eight wards. Once a petition was submitted by proponents and accepted by the Board, no further action could be taken on the legislation until after a referendum was held. If a majority of voters participating in the referendum disapproved of the legislation recognizing same-sex marriages performed in other jurisdictions, the legislation would be deemed to be rejected and the DC Council would be prohibited from taking any action with regard to that matter for one year.
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Plaintiffs in the lawsuit include Bishop Harry R. Jackson and several other DC voters. The plaintiffs are represented by attorneys with the Alliance Defense Fund, a public-interest legal organization dedicated to defending certain principles including religious liberty and marriage as the union of husband and wife.
According to Brian Raum, Senior Legal Counsel with the Alliance Defense Fund, “Marriage didn’t violate the Human Rights Act when the HRA passed 32 years ago, and it doesn’t now. That is simply a political argument meant to prevent the people from voting.” Raum states that “[m]arriage pre-existed the Human Rights Act by centuries in the district. They have co-existed for a generation without conflict . . . . The HRA has never required the redefinition of marriage or the recognition of non-marriages. Opponents of the referendum have twisted a law to impose their agenda without the people’s consent.”
Bishop Jackson, who is the senior pastor of Hope Christian Church in Beltsville and one of the DC voters named as a plaintiff in the suit, stated, “We are not going to sit by and allow an unelected board of bureaucrats to deny voters their rightful say on this issue and, by their action, allow the institution of marriage and the entire structure of our society to be radically redefined.” Reverend Walter E. Fauntroy, another of the plaintiffs in the lawsuit, described the decision of the Board of Elections and Ethics as “an insult to every voter in the District of Columbia” and said it “must be legally challenged, as we are doing.”
The DC Council’s decision to recognize same-sex marriages performed in other jurisdictions is widely regarded as a “first step” toward allowing same-sex marriages to be performed in the District. According to the Chicago Tribune, “Some council members have said the legislation is the first step toward eventually allowing gay marriage in Washington.” And the Washington Post predicts that the decision by the DC Board of Elections and Ethics to deny DC residents an opportunity to vote on whether to recognize same-sex marriages performed in other jurisdictions “will probably embolden the D.C. Council to take up a separate proposal this year to allow same-sex marriages to be performed in the District. David A. Catania (I-At Large) said he plans to introduce the legislation in the fall.”