Late Monday afternoon, the District of Columbia's Board of Elections and Ethics determined that a proposed referendum to repeal the city council's decision to recognize same-sex marriages performed in other jurisdictions violated the city's Human Rights Act. The District's Democratic establishment has scrambled to squelch the possibility of a popular vote on same-sex marriage in this majority-black jurisdiction, with the two members of the election board following the advice of the District's attorney general, the general counsel of the city council, and at least two councilmen who submitted public testimony.

The bill recognizing same-sex marriages performed outside the District was approved by a 12-1 vote of the city council and was signed by Mayor Adrian Fenty on May 6. Notorious Ward 8 councilman Marion Barry cast the lone dissenting vote in deference to the beliefs of his constituents in southeast Washington. If the U.S. Congress doesn't act, the bill will become law on July 6.

A group of black ministers, upset by the absence of public debate in advance of the bill's passage, brought a proposed referendum to the District's Board of Elections and Ethics on May 27. Last Wednesday, the board held a four-hour public hearing on the matter to determine whether or not the proposed referendum was a "proper subject" for a referendum. According to the law of the District, some subjects are improper for initiatives and referenda, such as proposals that would allocate funds or violate the Human Rights Act of 1977. At issue was whether or not the proposed referendum violated the Human Rights Act.

The Human Rights Act, which was amended in 2002 to apply to the actions of the District government, states in part:

It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, or place of residence or business of any individual: To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations.

In 1977, of course, the District neither allowed same-sex marriages to be performed nor allowed those performed in outside jurisdictions to be recognized. There is also precedent in the District's courts that specifically rejects the notion that the Human Rights Act protects a right for persons of the same sex to marry one another. In Dean v. District of Columbia (1995), the D.C. Court of Appeals (the equivalent of a state supreme court) determined that two men were not entitled to a marriage license by virtue of the Human Rights Act. "We cannot conclude that the council ever intended to change the ordinary meaning of the word 'marriage' simply by enacting the Human Rights Act," the court decided. Moreover, the Dean court argued that the council that passed the Human Rights Act didn't even "intend the Act to prohibit every discriminatory practice," namely "gender-discriminatory actuarial pricing practices of insurance companies."

The board of elections determined that Dean doesn't apply because, "there is now, unlike in 1995 when Dean was decided, such a thing as valid same-sex marriage." Apparently, the board of elections believes that the Human Rights Act should be interpreted according to evolving views on what constitutes unlawful discrimination, which is exactly what the Dean court argued against. Indeed, it's not even necessary to show that the Human Rights Act was not intended to end the long-standing practice of denying civil marriage to parties other than one man and one woman. Even today, the city council has yet to authorize the city government to grant marriage licenses to same-sex couples. If it's not a violation of the Human Rights Act for the city council to deny marriage equality to still unmarried couples in its own jurisdiction, it shouldn't be too much of a stretch to argue that it wouldn't violate the Human Rights Act for the District's voters to deny marriage equality to same-sex couples that were validly married in other states. Since the D.C. Court of Appeals has in the past decided that the people's right of referendum should be "liberally construed," it would have been appropriate for the board of elections to defer to the people on this matter.

Interestingly, the board of elections decided that it "must refuse to accept initiative and referendum measures that would thwart legislative efforts to eradicate unlawful discrimination." This felt responsibility to protect legislative efforts to eradicate unlawful discrimination from being "thwarted" is an apparently unwritten responsibility, as no citation is offered for it and such a responsibility cannot be found in the laws governing the referendum process. Rather than determine if the referendum violates the Human Rights Act as interpreted by the courts or as understood by the council that passed it, the board of elections decided that the mere intention of the city's legislature to eradicate a newly discovered form of unlawful discrimination is enough to change the meaning of the Human Rights Act. That is, since the city council passed a bill with anti-discrimination intentions, it is therefore shielded from a popular referendum because of the Human Rights Act. It should be said that the new same-sex marriage bill isn't even law--Congress has until July 6 to veto it--but even that didn't stop the elections board from attempting to base their interpretation of older D.C. laws, in part, on bills that haven't finished going through the process of congressional review.

Opponents of same-sex marriage in the District plan to appeal the decision of the board of elections. Tim Tracey of the Alliance Defense Fund, the organization representing the group of black ministers, told me last night that his group will file an appeal with the Superior Court of D.C. today or tomorrow. If that doesn't work out, and if Washingtonians are less than enthusiastic about gay marriage, voters may finally decide at the next election that their city councilmen haven't been representing them very well.

Kevin Vance is a Collegiate Network fellow and editorial assistant at National Affairs.

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