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February 09, 2010

Proposed Initiative on Preservation of Traditional Marriage One Man One Woman 2009

To:   D.C. Board of Elections and Ethics
One Judiciary Square, 441 4th Street, NW, Suite 270N
Washington, D.C. 20001

From: Bob Summersgill 
Washington, DC 20008

Date: February 9, 2010

Re: Proposed Initiative on Preservation of Traditional Marriage One Man One Woman 2009

Please reject the measure "Preservation of Traditional Marriage One Man One Woman 2009" as it is not in proper legislative form; Would violate the Human Rights Act; and would limit a budget act.

The legislative text in this measure is the statement "To repeal the District of Columbia's 'Religious Freedom and Civil Marriage Equality Act of 2009,'" followed by the text of the "Religious Freedom and Civil Marriage Equality Act of 2009" itself. Were the measure to be approved—and the initiative to become law—it would cause the existing law to be re-enacted. If the initiative failed, the same act would already be law. The outcome would be the same either way as the measure fails to propose new law.

Additionally, sections 5 and 6 are improper. Since the Council has no role in passing an initiative, section 5 is entirely void, inappropriate and improper. Likewise, section 6 discusses the role of the Mayor. The Mayor is not involved in the process, so the section is void, inappropriate and improper.

Since there isn't proper legislative text, the Board should find the measure improper.

The summary statement presents an entirely different intention. According to the summary statement, the measure seeks to discriminate against gay people, as did the previous initiative and the two referendums on this subject in the past eight months. The Board appropriately found in those measures that they to deny marriage and all of its rights and responsibilities to same-sex couples in direct violation of the Human Rights Act. The Board should similarly find that this measure would authorize or have the effect of authorizing discrimination under the Human Rights Act.

Arguments that the law should be different than it is and different than Judge Macaluso has ruled should be rejected as inappropriate. The Board's Memorandum Opinion and Order on the Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 stated "...the Board is without authority to rule that the HRA restriction on the right of referendum is invalid." I believe that is correct and applies equally to the initiative process. That authority appropriately belongs to the courts. All such claims should be rejected as inappropriate to this hearing.

In the same Memorandum Opinion and Order, the Board found that the budget restrictions did not apply to a referendum. This suggests that it does apply to initiatives. As pointed out in the prior hearing, the reports of the OCFO and the Williams Institute of the ACLU Law School found that taxes and fees generated by gay people marrying in the District would amount to approximately one million dollars per year. The Board should find that prohibiting marriage equality would be a direct cost to the District, and therefore the measure is improper for initiative.

Thank you for your consideration.

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