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June 30, 2009

Judge Retchin rules against proposed referendum

Washington City Paper reports that D.C. Superior Court Judge Judith Retchin today ruled that the proposed referendum on the Jury and Marriage Amendment Act of 2009 may not proceed, handing a defeat to Bishop Harry Jackson and a group of other anti-gay ministers. As City Paper says:

In particular, Retchin found that the landmark 1995 Dean v. District decision does not apply to the issue of recognizing out-of-state marriages: ‘Dean does not support Petitioners’ position because Dean involved a different factual scenario and presented a different legal question than is before the Court.... Since 1995, when Dean was decided, there have been many significant changes in the District’s marriage law. As the District points out, seven of the eight gender-specific provisions in the marriage statute cited by Dean have been amended to make them gender-neutral.... Moreover, since Dean, the DCHRA has been strengthened to afford more protection against discrimination. The DCHRA now proscribes discrimination based upon a person’s “perceived or actual” membership in a protected category.’

Retchin also points out that now there are legal same-sex marriages in a number of jurisdictions, as there were not in 1995.

There are some choice passages in Retchin's opinion:

At bottom, the harm about which Petitioners complain is not based on a denial of the right to referendum. Rather, they simply disagree with legislation enacted by our duly-elected Council. A citizen's disagreement with constitutionally sound legislation, whether based on political, religious or moral views, does not rise to the level of an actionable harm.... Petitioners' remedy is to pursue an initiative or to seek redress through the political process by lobbying the Council and by exercising their right to vote....

The Court questions whether it has the authority to stay the effective date of the JMA. To do so may encroach on the well-defined role of the Council and Congress.... Although Congress has provided explicitly that any law enacted by the District shall become effective within 30 days absent Congressional disapproval, Petitioners ask this Court to interfere with the Congressionally mandated legislative framework here. It is not in the public interest for courts to determine, on a case-by-case basis, the time permitted for the referendum process particularly where, as here, the legislature already has prescribed a strict and explicit time period fo all referenda.

Retchin also denied a motion by attorney Aaron Flynn and his partner Christopher Boutlier to intervene in the case, just as she previously denied a motion by Mark Levine to intervene on behalf of the Gertrude Stein Democratic Club. But her ruling is a strong and broad one, agreeing with the arguments made by Kenneth McGhie, General Counsel for the Board of Elections and Ethics, and by Peter Nickles, Attorney General for the District of Columbia.

GLAA thanks Judge Retchin and all who assisted in this fight. We will now have to prepare to deal with any efforts in Congress to add an anti-gay provision to the D.C. Appropriations bill later this summer, and with an expected initiative effort down the road. But the law is on our side, the facts are on our side, our city's elected officials are overwhelmingly on our side, and the wind is at our backs.

Update: The Washington Blade reports.

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