The board's ruling on the first petition
for an initiative. Reactions. Lawsuit.
The story so far:
2009-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.
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 If successful it would have repealed the law.
2009-JUN-10: The Board held hearings on the request.
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.
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.
The 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."
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.
Mike 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'."
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
DeBonis also recorded responses from individuals supporting the Board's
decision. They emphasized the human rights aspect of the decision:
David 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."
Board 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."
Phil 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
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
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
The following information sources were used to prepare and update the above
essay. The hyperlink is not necessarily still active today.