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July 15, 2010

Court: No Ballot Measure to Ban Same-Sex Marriage in DC

The highest court in the District of Columbia has ruled 5-4 that the ballot initiative to ban same-sex marriage in D.C. may not go to the voters.

Specifically, that the Council was correct to prohibit initiative and referendum which would violate or cause to violate the Human Rights Act; and the Board of Elections and Ethics (BOEE) ruled correctly that the initiative was improper because it would violate the Human Rights Act.

Appellants’ challenge focuses on the validity of Council legislation that requires the Board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act (a requirement that we refer to herein as the “Human Rights Act safeguard”). Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative.

As we go on to explain, we reach this result because

(1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA”);

(2) the Human Rights Act safeguard is not inconsistent with the Council’s intent as conveyed by the language of the CAA;

(3) this court owes substantial deference to the Council’s legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA;

(4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act;

(5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination; and

(6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination.

On the last of these points, our court is unanimous.

[Emphasis and formatting added.]

The D.C. Court of Appeals is the highest court in  D.C. The only appeal is to the U.S. Supreme Court. As there are no constitutional issues involved; the Supreme Court is highly unlikely to take the case. The Court took the unusual step of taking the case en banc [all 9 judges decided the case] without a panel of judges hearing the appeal first.

Harry Jackson brought two referendums in addition to this initiative to the BOEE and lost each time. He appealed each decision and has lost at every turn.

While the Congress could impose a ballot measure or just re-write the law, it is highly unlikely that they will intervene with the current leadership, and would not likely be taken up without an over-whelming Congressional take-over by anti-marriage advocates. THe clock works for us and each day Americans grow increasingly more supportive of same-sex marriage.

This is a very happy day in the District of Columbia.

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