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Back to Section One | Back to Arts & Entertainment
posted Friday, May 7, 2010 - Volume 38 Issue 19
D.C. Appeals Court hears marriage equality case
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D.C. Appeals Court hears marriage equality case

by Mike Andrew - SGN Staff Writer

On May 3, the D.C. Court of Appeals heard arguments in a lawsuit seeking to force the city to put its new marriage equality law on the ballot for a popular vote.

The suit was filed by Bishop Harry Jackson and other local religious leaders who opposed passage of D.C.'s marriage equality law last December.

The law took effect on March 3 this year.

Jackson and his co-plaintiffs were represented by Austin Nimocks, legal counsel for the Alliance Defense Fund, a Christian law group aligned with former Focus on the Family leader James Dobson.

At issue in the suit is an apparent conflict between two D.C. laws.

A 1970s-era amendment to the D.C. City Charter allows voters to pass or repeal laws through an initiative or referendum.

Jackson claims this amendment gives him the right to get D.C.'s marriage equality law put on the ballot for a vote.

"The people have a right to vote that's guaranteed by the District of Columbia Charter," Nimocks, Jackson's attorney, said. "And the City Council cannot amend the charter. They cannot do anything to undermine the people's right to vote."

On the other hand, D.C.'s Human Rights Act bans discrimination based on gender and sexual orientation, among other characteristics.

A provision was added to the city's referendum and initiative law that bans such ballot measures if they would result in discrimination prohibited by the Human Rights Act.

D.C. Solicitor General Todd Kim, who argued on behalf of the city, told the court that the charter amendment establishing the initiative and referendum system gives the City Council authority to make some changes in the system to carry out its "purpose."

The D.C. Human Rights Act indicated that the city's overall policy and purpose was to protect the rights of Gays and Lesbians along with other minorities, Kim said.

The D.C. Board of Elections and Ethics rejected Jackson's application for an initiative defining marriage as the union of one man with one woman on the grounds that it violated D.C.'s Human Rights Act by depriving LGBT citizens of equal rights.

Jackson then filed suit with the D.C. Superior Court, seeking an order to allow a ballot initiative.

In January, Superior Court Judge Judith Macaluso upheld the Election Board's decision, saying the law cited by the city to ban such ballot measures was valid.

Jackson and his supporters then appealed Macaluso's ruling, resulting in the May 3 hearing before the Appeals Court.

In an unusual step, the full nine-member court heard the oral arguments, rather than the standard three-member panel.

One possible significance of an en banc - or full court - hearing is that the full court has the authority to overturn previous decisions if they would interfere with its intentions in a current case.

Legal observers said one ruling the court might overturn is Dean v. the District of Columbia, a 1995 case which also dealt with same-sex marriages.

In Dean, the appeals court rejected a claim by a Gay couple that the city's Human Rights Act required issuance of marriage licenses to same-sex couples because it banned discrimination based on gender and sexual orientation.

At that time, the court ruled that the marriage law restricting marriages to opposite-sex couples took precedence over the Human Rights Act.

In the current case, seven of the nine judges asked pointed questions that challenged the legal arguments presented by both sides, making it difficult to predict how the judges might rule.

"The court asked a variety of probing questions, as they should have," said Thomas Williamson, an attorney who filed an amicus brief on the side of the D.C. government.

"But it seemed that a consistent theme in their questions was a sensitivity to the importance of protecting civil rights of a vulnerable minority, which is really what this case is about here - the right of same-sex couples to enjoy marriage and have the same status for their marriage as all other citizens of the District," Williamson said.

Five of the nine judges, including Chief Judge Eric Washington, were appointed by President George W. Bush. President Bill Clinton appointed the remaining four.

Observers say a decision on the marriage case could come sometime in the next several months, but may take more than a year.

The losing party could appeal the case to the U.S. Supreme Court, but many legal observers believe the high court would be unlikely to take the case.

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