DC's gay marriage law survives court challenge

The District of Columbia Court of Appeals effectively upheld gay marriage in the nation's capital by legitimizing the city's decision to block a popular vote on the issue.

In a 5-4 decision published Thursday, the court agreed that Washington's Board of Elections and Ethics had the right to deny an initiative measure on the city's recently passed law legalizing same-sex marriage.

Opponents of the law, led by area pastors, were confident that the majority of Washingtonians would have voted against gay marriage if given the chance.

They argued that residents of the District “are … entitled to voice their views through their votes on this important issue” – just like the voters in 31 states where gay marriage has been on the ballot. Every time the question of same-sex marriage has been put to voters, they have voted against it.

But that could have conflicted with the District’s 1973 “Human Rights Law,” which declares that “[e]very individual shall have an equal opportunity to participate … in all aspects of life.”

The question, according the court, was whether such an initiative measure “would authorize or have the effect of authorizing discrimination on a basis prohibited by the Human Rights Act.”

“We have no difficulty concluding that the proposed initiative would do so,” the court majority wrote.

While the decision was close, even the four-judge minority (which questioned the basis on which the DC Board of Elections rejected the initiative) agreed that the referendum could have been discriminatory.

Gay rights groups applauded the decision.

“The court’s ruling today is a significant victory for justice, the rule of law and the protection of all DC residents against discrimination,” said Joe Solmonese, president of the Human Rights Campaign, in a statement.

While the ruling – which could be taken up by the US Supreme Court – addresses a signature issue in today’s political culture wars, it also relates to DC’s unique position under the scrutiny of Congress.

The 81-page ruling is set in the context of the history of Home Rule in the DC, over which Congress retains considerable power.

Republicans and some conservative Democrats in Congress are trying to exert congressional authority over the District in this matter with a bill called the "DC Defense of Marriage Act." The bill would define marriage in DC as the “union of one man and one woman.”

“The ideal institution for raising children is family, it is moms and dads,” Rep. Jim Jordan (R) of Ohio said at a rally announcing the bill in May. “This is the national capital of the greatest country in the world, and this is a fight worth getting into, defending that key institution.”

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