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Gay-marriage referendum backers have asked a Superior Court judge this morning to order the city elections board to allow a ballot measure.
The move comes two days after the Board of Elections and Ethics ruled that such a referendum, to overturn a recently passed District law recognizing out-of-state gay marriages, would violate the D.C. Human Right Act and thus would be ineligible to appear on the ballot.
The petition [PDF], filed by Bishop Harry Jackson and six other backers, says the BOEE decision “is erroneous because the determination directly contradicts the D.C. Court of Appeals’ decision in Dean…holding that the current D.C. law limiting marriage to opposite-sex couples does not violate the DC-HRA.”
The petition, while it spends a great deal of space on the legislative process that led to the law, in the end relies heavily on the Dean v. District case, decided in 1995 by the D.C. Court of Appeals. Here’s the meat of their argument:
The Board’s denial of the Referendum directly contradicts Dean. The Court of Appeals in Dean conclusively determined that the refusal to afford same-sex couples the status of “marriage” does not run afoul of the DC-HRA. It is true that the Jury and Marriage Act of 2009, at issue here, purports to addresses only the recognition of same-sex “marriages” from other jurisdictions, rather than, as in Dean, authorizing same-sex “marriages” in D.C. in the first instance. But that is a distinction without a difference. It is illogical to say that, under Dean, limiting the status of “marriage” in D.C. to opposite-sex couples in the first instance is consistent with the DC-HRA, but that denying the very same status to same-sex unions deemed “marriages” in other jurisdictions is not. Either way the issue is the same: whether refusing to afford same-sex couples the status of “marriage” contravenes the DC-HRA. Dean clearly holds it does not.
Note the scare quotes around “same-sex ‘marriage.'”
The lawyers for the referendum proponents—-Steven H. Aden, Austin R. Nimocks, and Brian W. Raum—-are all affiliated with the Alliance Defense Fund, a Christian conservative legal advocacy group founded in 1994 by a group of politically active evangelicals (including Focus of the Family’s James Dobson). Aden is based in D.C., while Raum (who testified at a BOEE hearing) and Nimocks are from Scottsdale, Ariz. (As an aside: It’s clear that these guys are new to the local scene: They issued a summons to “Robert J. Spagnoletti, Corporation Counsel of D.C.” Spagnoletti hasn’t been in government since 2006, and the corp counsel was renamed the attorney general in 2004.)
The case has been assigned to Judge Judith Retchin, with an initial conference scheduled for September. But the petitioners have asked for expedited review, since the law is scheduled to exit congressional review and go into effect on July 6—-putting it out of the reach of referendum. They have also asked for “other declaratory relief and permanent and temporary injunctive relief as may be necessary to ensure that the Referendum is accepted by the Board and that the referendum process moves forward.” It is unclear whether a judge has the power to “stop the clock” on congressional review while the issue is being decided.
Retchin, on the bench since 1992, is a former assistant U.S. attorney who been known in her judicial career for her tough sentencing in criminal matters—-most infamously for ordering the incarceration of paraplegic Jonathan Magbie for marijuana possession. Magbie later died after being sent to D.C. Jail; Retchin took tough criticism from the Washington Post‘s Colbert I. King and others for not checking if the jail was medically equipped to handle Magbie.