DC's gay marriage law survives court challenge

The DC Court of Appeals ruled Thursday that Washington was within its rights to block a popular vote on same-sex marriage because the results could violate its human rights law. The city legalized gay marriage in March.

Jacquelyn Martin/AP
A couple holds roses after they obtained their marriage license March 3, the first day possible for gay couples since the District of Columbia legalized gay marriage in Washington. The DC Court of Appeals ruled Thursday that Washington effectively upheld gay marriage in the nation's capital by legitimizing the city's decision to block a popular vote on same-sex marriage.

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.”

The bill has 30 cosponsors in the House, but it is unlikely to generate enough support to pass.

Meanwhile, federal courts have been getting more involved in gay marriage questions at the state level.

In Massachusetts last week, US District Judge Joseph Tauro ruled that the federal Defense of Marriage Act (DOMA) is unconstitutional because it "plainly encroaches" on the right of states to define marriage. Specifically, Judge Tauro ruled that DOMA unconstitutionally denies married gay couples some federal benefits. Massachusetts legalized gay marriage in 2004.

“This court has determined that it is clearly within the authority of the commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote.

It’s unclear at this point whether the Obama administration will appeal Tauro’s ruling.

In California, both sides of the gay marriage debate are awaiting the decision of US District Judge Vaughn Walker in the case involving Proposition 8 – the 2008 ballot measure restricting the definition of marriage to between a man and a woman. At issue is whether Prop. 8 violates the Equal Protection Clause in the US Constitution.

Five states (New Hampshire, Iowa, Massachusetts, Vermont, and Connecticut) and DC now recognize same-sex marriage. This week Argentina became the 10th country to legalize same-sex marriage.

Opponents of gay marriage vow to continue fighting – in federal courts and at the voting booth.

“Individual states shouldn’t have the right to impose a radical redefinition of marriage on the rest of the country,” Austin Nimocks, senior legal counsel of the Alliance Defense Fund, said in response to Judge Tauro’s decision in Massachusetts.


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