Tuesday, November 17, 2009

D.C. Board of Elections Rules Against Public Vote on Marriage Rights

Just as they did back in June, D.C. Board of Elections ruled against marriage equality opponents and denied their request for a Proposition 8-style ballot initiative that would have restricted marriage between one man and one woman in an attempt to undo the D.C. City Council's marriage equality bill.

In June Bishop Harry Jackson and the National Organization for Marriage (NOM) went to the board to request an initiative on the bill that allowed the District to recognize same-sex marriages legally performed outside its borders. This was their attempt to thwart the bill by having a public vote. They were ruled against. They appealed to DC Superior Court but the judge also ruled against them, saying such an initiative would violate the District's Human Rights Act which bars discrimination based on sexual orientation.

D.C.'s marriage equality recognition bill passed.

The same day public testimony was heard by the D.C. City Council on the marriage bill on October 26, Jackson and NOM again testified in front of the board, requesting an initiative on the bill that would legalize same-sex marriage in the capital, again hoping that the public would vote against it.

The Human Rights Act was also the reasoning behind the board's decision today, saying that denying same-sex couples the rights and benefits afforded to married couples simply because of their orientation is discrimination.
The District of Columbia Board of Elections and Ethics today released a memorandum opinion on the “Marriage Initiative of 2009”, which would establish that “only marriage between a man and a woman is valid or recognized in the District of Columbia.” A public hearing on the proposed initiative was held on October 26, 2009.

Under current law, the District recognizes as valid same-sex marriages performed in other jurisdictions. The Board concludes that that Marriage Initiative of 2009 would, if passed, strip same-sex couples who have entered into such marriages of rights afforded to them by that recognition. Accordingly, the Board orders in its memorandum that the Initiative be received but not accepted under D.C. Code section 1-1001.16(b)(2), which prohibits the Board from accepting an initiative that authorizes discrimination prohibited under the District of Columbia Human Rights Act.

“We have considered all of the testimony presented to the Board and understand the desire to place this question on the ballot,” said Board Chairman Errol R. Arthur. “However, the laws of the District of Columbia preclude us from allowing this initiative to move forward.”
It's a shame that this stripping of rights by a tyrannical majority rule continues throughout the rest of the country.

D.C. City Council will hold a preliminary vote on the marriage bill on December 1 with a final vote before the end of the year. It is expected to pass as 10 out of the 13 council members are co-sponsors.

The last hurdle before final passage is the U.S. Congress, which will have 30 Congressional days to intervene. Though they did not interfere with the recognition bill, it may not be so easy this time with the Democrats experiencing more and more pressure from the Catholic Church (health care anyone?) who has threatened to end all charitable work in the District if marriage equality passes.

Rev. Cedric Harmon, a D.C. resident and a representative of D.C. Clergy United for Marriage Equality, said in response to today's decision, "It is shameful when religious leaders fail to uphold the Christian teachings of our faith by trying to institutionalize a second-class citizenship on our neighbors. People of faith have worked for generations to achieve social justice for all people — regardless of race, creed, class, religion, gender, or sexual orientation. We serve our entire flock, and there is no justification under God that we should discriminate against any of God’s children."


  1. As usual, UTF has better coverage than any other blog.

    However, there is an error and an important omission from this post.

    When DC recognized out-of-state marriages, opponents filed suit in DC Superior Court, not federal court. This is significant because any appeal goes to the DC Court of Appeals, and not the federal appellate court.

    When they lost in the DC Superior Court, they made a tactical decision not to appeal at that time. This time, they will appeal. And the DC Court of Appeals will not be bound by any legal conclusions of the Board of Elections or the DC Superior Court. The key issue will be whether the Court of Appeals will agree that a 1995 decision (that the Human Rights Act did not mandate SSM) does not control here. If they agree, then we win and it stays off the ballot. If they insist that the 1995 decision does control, then SSM is outside the scope of the Human Rights Act and thus is open to a ballot referendum.

    This appeal is really the one and only thing that realistically could kill SSM in DC. Everyone is focused on Congress, but the real fight is in the DC Court of Appeals.

  2. You are correct. I checked my original reporting on the appeal, and I had it right. But for some reason, I typed federal this time around. Must have been today's other breaking story about the GLAD federal suit that I had on my mind. Thank you for pointing this out.

    I don't think Congress will get involved, just like last time. They've already mentioned they have no intention to interfere. However, the Catholic Bishops were able to influence the Democrats on the Stupak Amendment to health care reform. I know they'll try to do the same on this. Though I doubt they'll have the same success.

  3. There is very little chance that Congress would act. It would require a majority vote in both houses and the signature of Obama. Although it is hard to get Congress to do what we want them to, it is fairly easy to persuade them not to proactively vote against us. So I think this is no threat.

    But the DC Court of Appeals is a genuine threat, since there is that bad 1995 decision from that same court on the books. There is almost no blog focus on this inevitable clash at the appellate court.

    There is a very good argument as to why the 1995 decision is no longer controlling, but it is entirely possible that the DC Court could reject that argument. If it does, then this goes on the ballot and you can be sure it will be as nasty as anything we've seen to date.