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Same-sex marriage (SSM) in Washington, DC

The board's ruling on the first petition
for an initiative.   Reactions.   Lawsuit.

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The story so far:

bullet2009-MAY-05: The City Council passed the "Jury and Marriage Amendment Act of 2009" (JAMA). This law recognizing same-sex marriages (SSMs) that had been solemnized elsewhere.
bullet2009-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 If successful it would have repealed the law.
bullet2009-JUN-10: The Board held hearings on the request.

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2009-JUN-15: The Board's ruling:

The District of Columbia's Board of Elections and Ethics rejected their request to hold an initiative. The board wrote that they were prevented by law from authorizing the initiative:

"The referendum instructs that '[a] NO vote will continue the current law of recognizing only marriage between persons of the opposite sex. Notwithstanding the incorrect statement of existing law, it is clear that the Referendum's Proposers would, in contravention of the HRA [Human Rights Amendment], strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the Council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation. Because the Referendum would authorize discrimination prohibited by the HRA, it is not a proper subject for referendum, and may not be accepted by the Board. 1

In a footnote, the Board stated:

"The Proposers and supporters of the Referendum have requested that the Board accept the Referendum and thereby allow voters to be heard, for what they say would be the first time, regarding the desirability of the Act among the electorate. The Board, as an entity responsible for ensuring the integrity of a very critical aspect of the democratic process, is particularly sensitive to issues of fairness and due process. However, the Board must also act in a manner which adheres to its statutory obligations."

What the Board has basically said is that basic human rights cannot be submitted to the public for a vote. Rights are rights and they apply to everyone. Unless someone changes the laws governing initiatives, the experience in California and Maine -- where very slim majorities of the public overturned marriage equality -- will not come to Washington DC.

If the referendum had been accepted, public opinion surveys indicate that most of the public would vote "YES," would reject the referendum and thus preserve the law recognizing SSMs performed outside of the District. If the referendum had passed, it would almost certainly have triggered a lawsuit arguing that the referendum conflicted with the HRA.

Still, proposers of the referendum would certainly receive much support and acclaim from that part of the public who were opposed to SSM. Only time will tell whether they were on the right side of history.

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Reaction to the Board's decision:

Those critical of the decision complained that the Board deprived the public of the opportunity to deprive recognition of the marriages of same-sex married couples.

bulletThe D.C. Catholic Conference, of the Roman Catholic Archdiocese of Washington stated:

"Today's announcement by the DC Board of Elections and Ethics to deny a referendum on this issue has once again disenfranchised the residents of our city. The DC Catholic Conference is deeply disappointed by the decision to deny voters a voice. ..."

"As part of an organization that serves thousands of children and families throughout this city, it would be our hope that residents be given an opportunity to be heard on an issue with widespread implications for children and families. The DC Catholic Conference will continue to strongly advocate for the long-standing and proper definition of marriage as the union between one man and one woman." 2

The Catholic Conference may have missed the irony in their statement. They appear to have overlooked the fact that the purpose of the referendum was to disenfranchise same-sex couples of the right to have their marriages recognized in DC. As noted below, many civil rights advocates believe that fundamental human rights -- like the right to marry a person that one loves and is committed to -- should not be subject to the tyranny of the majority of voters.

bulletMike DeBonis, blogger at the Washington City Paper wrote:

"Pastor Patrick J. Walker of the New Macedonia Baptist Church, one of the proponents, says he is 'deeply saddened and disappointed' by the board decision. 'Simply put, I feel as a citizen of the District of Columbia, once again we've been disenfranchised. Our right to vote has been taken away, no different than what's happened on Capitol Hill....Now we're doing it ourselves'."

"Walker took particular issue with the board's reading of Dean: 'We just don't believe that in 1995, if it wasn't a human rights violation then, just 15 years ago, how can it be a human rights violation now? The only thing different is a few persons' perception'." 2

Pastor Walker may not be aware that at the time of the incident that triggered Dean, same-sex marriage did not exist anywhere in the U.S. The court's ruling was based on the status of SSM at that time. At the time of Walker's statement it existed in all 10 provinces and 3 territories in Canada and 6 states in the U.S. There were, and are, also almost 20,000 married same-sex couples in California.

bulletDeBonis also recorded responses from individuals supporting the Board's decision. They emphasized the human rights aspect of the decision:
bulletDavid Catania, sponsor of the bill, wrote:

"At the time of its passage, the District's Human Rights Act was one of the most comprehensive statements on equality in the world. For over 30 years, we have endeavored to perfect and expand our understanding of equality. ... In my opinion, there is no question that the proposed referendum would have the effect of continuing discrimination. As such, I am pleased with the Board's decision that the proposed referendum is incompatible with District law."

bulletBoard chair Errol R. Arthur, chairperson of the Board, wrote:

"We understand the sensitivity of this matter and appreciate the large number of citizens and civic organizations who gave input during this process. After giving this matter very careful consideration, the Board feels that our statutory obligation to reject this referendum is clear."

bulletPhil Mendelson, who introduced the marriage-recognition bil, wrote:

"I completely agree with today's decision of the Board of Elections and Ethics. As I and many others stated when we testified in front of the Board last week, civil rights should not be subject to a referendum. I applaud this decision, as it was based firmly in the tradition of the District's own progressive Human Rights Act. Recognizing marriages lawfully entered into in other jurisdictions is logical and just. It is unacceptable for government to sanction discrimination on the basis of one's sexual orientation." 2

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Court petition:

Petitioners to the Board of Elections and Ethics filed a petition with the District of Columbia Superior Court. They sought a writ "in the nature of mandamus" to compel the board to overturn its decision and accept the proposed anti-SSM referendum. 3

The court considered the petition. They concluded that the 1995 case "Dean v. District of Columbia" which held that the Human Rights Act (HRA) did not apply to marriage, is no longer controlling. They determined that if the initiative were approved by the voters, it would violate the HRA.

Since the petitioners' initiative had been refused by the Board, and the writ was refused by the Superior Court, there was nothing to impede the implementation of JAMA on 2009-JUL-07. Loving, committed same-sex DC couples could marry in other jurisdictions, return to DC and have their marriages recognized.

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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/
  3. "Civil Action #2009 CA 008613 B," Superior Court of the District of Columbia, 210-JAN-14, at: http://www.dccourts.gov/

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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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