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Judge Judith Retchin has ruled [PDF] that a referendum on recognizing out-of-state gay marriages may not proceed.
Retchin was widely expected to ignore the substance of the referendum proponents’ argument—-i.e., that the District’s human rights law does not, in fact, prevent the measure from appearing on the ballot, as the Board of Elections and Ethics ruled earlier this month. Instead, she was expected to rule only on whether she could stop the marriage law from taking effect next week—-an important question, since that would prevent a referendum and render any other legal arguments moot.
But her ruling is broad.
‘Because the Court finds the Board correctly concluded that the proposed referendum would violate the District of Columbia Human Rights Act,’ Retchin writes, ‘and because Petitioners have failed to establish the necessary prerequisites for staying the legislation, the Court denies Petitioners’ requests for relief.’
In particular, Retchin found that the landmark 1995 Dean v. District decision does not apply to the issue of recognizing out-of-state marriages ‘because Dean involved a different factual scenario and presented a different legal question than is before the Court.’
Retchin bought many of the arguments presented by the BOEE and the D.C. Council: ‘Since 1995, when Dean was decided, there have been many significant changes in the District’s marriage law. As the District points out, seven of the eight gender-specific provisions in the marriage statute cited by Dean have been amended to make them gender-neutral….Moreover, since Dean, the DCHRA has been strengthened to afford more protection against discrimination. The DCHRA now proscribes discrimination based upon a person’s “perceived or actual” membership in a protected category.’
Plus there’s this point, perhaps the strongest: ‘The Court in Dean did not consider whether the government could refuse to recognize the legal right of persons to remain married solely because of their sexual orientation. In fact, the Court in Dean could not have addressed this issue because when Dean was decided in 1995, no state had legalized same-sex marriage.’
On the issue of stopping the clock, Retchin decided that such a move was not warranted. For one thing, she bought the BOEE’s argument in ruling that the referendum backers’ 16-day delay in applying for a ballot measure ‘was inexcusable.’ Furthermore, she points out, the backers can always enter the initiative process, which is not subject to the 30-day congressional review timeline like the referendum process is. (But it is, of course, also subject to the D.C. Human Rights Act prohibitions.) And Retchin also expressed doubts that she had the authority to stop the enactment of legislation in any case: ‘To do so may encroach on the well-defined role of the Council and Congress…. It is not in the public interest for courts to determine, on a case-by-case basis, the time permitted for the referendum process particularly where, as here, the legislature already has prescribed a strict and explicit time period for all referenda.’
Writes Retchin, ‘At bottom, the harm about which Petitioners complain is not based on a denial of the right to referendum. Rather, they simply disagree with legislation enacted by our duly-elected Council. A citizen’s disagreement with constitutionally sound legislation, whether based on political, religious or moral views, does not rise to the level of an actionable harm….Petitioners’ remedy is to pursue an initiative or to seek redress through the political process by lobbying the Council and by exercising their right to vote.’
In other words, Retchin says: I’m no activist judge!
Expect a petition to the D.C. Court of Appeals forthwith; this is likely to be the last stand for judicial intervention in gay marriage in the District of Columbia.