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Same-sex marriage (SSM) in Washington, DC

Initiative to repeal "JAMA" act.

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First of two petitions to conduct a referendum:

The "Jury and Marriage Amendment Act of 2009" (JAMA) was passed by the City Council of the District of Columbia (DC) on 2009-MAY-05 and came into effect on JUL-06 of that year. It added a section to the DC bylaws that recognizes same-sex marriages (SSMs) that had been legally performed in other jurisdictions, whether in Canada, some European countries, Massachusetts, etc.

As noted previously, there was heavy opposition to SSM among both black and evangelical pastors and congregations in the Washington DC and surrounding areas to marriage equality as granted by this law. The Roman Catholic Church was also actively opposed.

The District of Columbia -- as well as 24 states -- have initiative and/or referendum processes that allow citizens to force a public vote to repeal or take no action on a district or state law.

On 2009-MAY-27, Rev. Harry R. Jackson, Jr., Rev. Walter E. Fauntroy, Rev. Dale E. Wafer, Melvin Dupree, Sandra B. Harris, Dr. Patricia Johnson, and Bobby Perkins, Sr. filed a petition with the District of Columbia Board of Elections and Ethics, asking that the act be submitted to the public in a referendum.

They proposed the following referendum:

"The D.C. Council approved 'The Jury and Marriage Amendment Act of 2009.' The Act would recognize as valid a marriage legally entered into in another jurisdiction and between 2 persons of the same-sex.

The 'Referendum Concerning the Jury and Marriage Amendment Act of 2009)' will allow voters of the District of Columbia the opportunity to decide whether the District of Columbia will recognize as valid a marriage legally entered into in another jurisdiction between 2 persons of the same-sex. A 'No' vote on the referendum will continue the current law of recognizing only marriage between persons of the opposite sex."

The referendum contains a curious error. It states that the current law prohibits SSM, where as the current law has recognizes SSMs performed elsewhere. The phrase "continue the current law" should have read "restore the previous law."

The Board held a hearing on 2009-JUN-10. They received written and oral submissions from about 75 individuals and groups.

Fortunately or unfortunately -- depending upon your point of view -- Title IV of the District of Columbia Home Rule Act prohibits the Board from authorizing a referendum if "The measure authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2." The latter reference is to the District of Columbia's Human Rights Act (HRA) which was enacted in 1977. So there was no chance that the initiative could be approved legally.

The HRA's stated purpose is to:

"... secure an end in the District of Columbia to discrimination for any reason other than individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business."

The HRA states:

"It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, or place of residence or business of any individual:
(1) To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations."

The HRA was amended in 2002 to state that:

"Except as otherwise provided for by District law or when otherwise lawfully and reasonably permitted, it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual's actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business."

According to the Board's ruling on the petition to hold a referendum:

"When the enabling legislation required to implement the Charter Amendments Act was being considered by the Council, there was an extensive debate as to whether to exclude laws concerning human rights from the initiative and referenda processes. Ultimately, those in favor of the human rights exclusion were victorious; the Council approved an amendment -- offered by Councilmember Marion Barry -- to the Charter Amendment Act's enabling legislation that reflected the Council's intent that 'the initiative and referendum process would never be used to interfere with basic civil and human rights.'

"The amendment in its earliest form, provided that initiative and referendum petitions must be rejected if they
authorize, or would have the effect of authorizing, discrimination for any reason other than individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business."

It could be argued that to refuse to recognizing same-sex couples' marriages that were legally solemnized elsewhere would violate the HRA in three ways:

bulletReligious and social conservatives generally define sexual orientation in terms of behavior. However, following the definition that is in is most commonly used, homosexuals are persons who are only sexually attracted to members of the same sex. A lesbian or gay person follow God's injunction in Genesis 2:18 that "It is not good for the man to be alone" (NIV) could enter into a same-sex marriage in Massachusetts, Canada, etc. Refusal by DC of recognizing such a union could be considered discrimination by DC on the basis of sexual orientation.
 
bulletA woman who wishes to marry another woman is free do do so in many countries and states, assuming certain age, genetic, and other considerations are met. If DC recognized opposite-sex marriages of one woman and one man performed out-of-district, but refused to recognize SSMs by two women performed elsewhere, this could be considered discrimination on the basis of gender.
 
bulletSimilarly, refusal by DC to recognize a legal out-of-district marriage between two men could be considered discrimination on the basis of gender.

In evaluating the petition before it, the board noted that, at the time of their ruling:

bulletSame-sex couples had been legally married and/or may be married in California, Connecticut, Iowa, Maine, Massachusetts, New Hampshire, Vermont, as well as in Belgium. Canada, the Netherlands, Norway, South Africa, Spain and Sweden." Thus, valid same-sex marriages exist in many jurisdictions.
 
bulletBrian Flowers, General Council of the District of Columbia Council, has stated: "Existing District law requires the recognition of marriages that were valid at their place of celebration."
 
bulletCity Council passed the act creating "Sec. 1287a. Recognition of Marriages from Other Jurisdictions" on 2009-MAY-05.
 
bulletIn addition, City Council had taken other actions to eliminate discrimination against same-sex couples by specifically placing them on a par with opposite-sex couples. For example:

"The Domestic Partnership Judicial Determination of Parentage Amendment Act of 2009, a partial aim of which was to 'formally acknowledge that families created by same-sex couples are not distinguishable from any other family currently recognized under District law,' is one example. Council efforts to remove gender-specific references in statutes pertaining to marriage and/or the rights and responsibilities thereof are another."

bulletSome supporters argued that if their referendum was successful, then loving, committed same-sex couples would not really be discriminated against. Same-sex couples who were married in other jurisdictions would still be able to come to DC, take advantage of the District's domestic partnership laws, and obtain the same District benefits and obligations that opposite-sex married couples received. The Board rejected that argument because opposite sex couples married out of the District of Columbia are not required to shed their marital status and enter into a domestic partnership. Thus, same-sex couples should not have to go through that process either.

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Implications of Dean v. District of Columbia:

This case, decided in 1995, involved the Clerk of the Superior Court denying a marriage license to a same-sex couple. The court ruling has been used in arguments both by those who support SSM and who who oppose it. The court reasoned that the intent of the Human Rights Amendment (HRA) was to prohibit sexual orientation discrimination of some but not all kinds. The court reasoned that same-sex marriage was not included in the range of discriminations that the HRA was intended to prevent. That is because, at the time of the refusal of the license, marriage itself had always been defined in the U.S. as a union of one man and one woman. Same-sex marriage was thus impossible.

The court argued that: 

"... had the Council intended to effect such a major definitional change, counter to common understanding, we would expect some mention of it in the [HRA] or at least in its legislative history. ... There is none. ... This is not surprising, however, for by legislative definition -- as we have seen -- 'marriage' requires persons of opposite sexes; there cannot be discrimination against a same-sex marriage if, by independent statutory definition extended to the [HRA], there can be no such thing."

The Board considered the Dean case to be "informative" but not "controlling in this matter." Since the court refusal of a marriage license, SSMs have been legalized in many U.S. states, starting on 2004-MAY-20 in Massachusetts. Thus, Dean is only of historical interest in 2009.

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The story continues

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References used:

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

  1. "Memorandum Opinion and Order," District of Columbia Board of Elections and Ethics, 2009-JUN-15, at: http://www.washingtoncitypaper.com/This is a PDF file.
  2.  Mike DeBonis, "D.C. Gay Marriage Referendum Rejected by Elections Board," Blog, Washington City Paper, 2009-JUN-15, at: http://www.washingtoncitypaper.com/

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Home page > "Hot" topics > Homosexuality > Couples > SSM > Washington DC > here

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Copyright © 2009 & 2010 by Ontario Consultants on Religious Tolerance
First posting: 2009-DEC-12
Latest update: 2010-JAN-18
Author: B.A. Robinson

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