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DC court rejects anti-marriage referendum
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DC court rejects anti-marriage referendum

by Mike Andrew - SGN Staff Writer

A DC superior court judge ruled on January 14 that opponents of the city's new same-sex marriage law do not have a right to hold a referendum on the issue.

In her ruling, Judge Judith N. Macaluso said that the DC Board of Elections and Ethics 'properly rejected the proposed initiative' because of the Human Rights Act.

The board twice rejected a proposed referendum or initiative on same-sex marriage because city law prohibits a public vote on any matter covered by the Human Rights Act. That law outlaws discrimination against Gay men and Lesbians, and other minority groups.

"[I]t is clear that a community cannot by initiative authorize discrimination as a matter of government policy," Macaluso wrote.

Bishop Harry Jackson of Hope Christian Church, an outspoken opponent of marriage equality, had appealed the board's ruling in superior court.

Judge Macaluso also rejected arguments that same-sex marriage should be illegal in the District because of the 1995 Dean v. District of Columbia decision.

In that case, the Court of Appeals ruled that the city did not have to recognize same-sex marriage because the intent of the government opposing such marriages was clear. Now, Macaluso ruled, the intent of the government in favor of allowing two men or two women to marry is clear.

"These clear manifestations of intent to alter the traditional definition of marriage did not exist when Dean was decided," the judge wrote. "Dean expressly relied upon the absence of such indications in concluding that the Council intended to retain the definition of marriage as occurring only between a man and a woman. Under these circumstances, Dean's holding is no longer controlling."

As required by law, the DC City Council passed the new same-sex marriage law twice, on December 1 and December 15, 2009. It was signed by Mayor Adrian Fenty on December 18.

Congress has 30 days from the beginning of its 2010 session to overturn the new law if it chooses to do so. If Congress does not overturn it, and if anti-marriage forces cannot get the courts to allow a referendum, the law will stand.

Thirty-nine Republican members of Congress filed an amicus brief in support of Jackson's appeal, arguing that the elections board overstepped its authority in denying a public vote on the definition of marriage.

Congressional Republicans have little prospect of overturning the new law however, since Democrats, who make up the majority in both houses, have shown no interest in intervening.

City officials say that absent Congressional intervention, marriage licenses will be available to same-sex couples around the first week of March.

Jackson is thought likely to appeal Macaluso's ruling to an appellate court.

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