Gay marriage in DC cannot be put to a vote, court rules

D.C.'s highest court has ruled against opponents of the city's same sex-marriage law, saying they cannot ask voters to overturn it.

Opponents had wanted to challenge a law that went into effect in Washington in March allowing same-sex couples to wed. They attempted to get approval to put an initiative on the ballot asking city voters to define marriage in the city as between one man and one woman. But city officials balked, saying the initiative authorized discrimination and that putting it on the ballot would violate a district human rights law.

On Thursday, the D.C. Court of Appeals ruled 5-4 that officials had the authority to keep the measure off the ballot and acted appropriately in barring it. The decision upheld a lower court's ruling.

An attorney for the group asking for the initiative, Austin Nimocks of the Alliance Defense Fund, said in a statement that the decision means district residents "are being denied their most fundamental freedom — the right to vote." Nimocks said the group is considering an appeal to the U.S. Supreme Court.

City officials and gay rights groups cheered the decision. The city's attorney general, Peter Nickles, wrote in a statement that the ruling is a "great victory for the city," and Mayor Adrian Fenty said the decision "proves that discrimination of any kind will not be tolerated in the district."

Writing in an 81-page ruling, the five judges in the majority said the D.C. Council had the authority to pass a law barring initiatives from the ballot if they conflict with a city human rights law. Four other judges disagreed, saying the council exceeded its authority when it put restrictions on ballot measures. They wrote that even if the anti-gay marriage measure went on the ballot it would not necessarily become law.

"Even if we assume that the people at large are more likely to discriminate against minorities than are their elected representatives," the judges wrote, "there are numerous checks and balances in place to protect against the tyranny of the majority."

The judges wrote that the proposal could be defeated by voters, struck down by Congress or amended or repealed by the D.C. Council if it became law. Courts could also nullify "any measure that is unconstitutional," the judges wrote.

Although the judges disagreed on whether the measure was properly restricted from going on the ballot, they were unanimous that the proposed initiative would authorize discrimination. It would deny, the dissenting justices wrote, "gay and lesbian residents ... the ability to participate fully in an important aspect of life in the District."