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The Board of Elections and Ethics has ruled that a referendum on recognizing gay marriages is not allowed.
Reads the order [PDF], signed by both board chair Errol Arthur and member Charles Lowery Jr.:
[I]t is clear that the Referendum’s Proposers would, in contravention of the [Human Rights Act], strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere….Because the Referendum would authorize discrimination prohibited by the [Human Rights Act], it is not a proper subject for referendum, and may not be accepted by the Board.
More to come.
UPDATE, 4:50 P.M.: The order highlights this section of the Human Rights Act: “it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived…sexual orientation.”
In a twist of the knife, the order notes that when the referendum and initiative laws were introduced to the council in 1978, it was Councilmember Marion Barry who added the amendment barring laws concerning human-rights matters. Barry, of course, was the only vote against the gay marriage recognition law last month.
UPDATE, 5:05 P.M.: The order makes much of the fact that “contrary to times past, there can be, and is, such a thing as a valid same-sex marriage.” From there, the order argues that a “broad policy of recognition” demands that the District recognize those marriages.
But if that’s the case, why would the council even have to legislate?
The board recognizes the importance of the recognition law in that “it unequivocally declares that the District is a jurisdiction that affords full faith and credit to valid same-sex marriages” and that it is in keeping with a series of council actions to eradicate legal distinctions between heterosexual and homosexual couples. Finally, the new law “effectively adds discrimination against same-sex couples who have entered into valid marriages in other jurisdictions to the list of acts of discrimination prohibited under the [Human Rights Act].”
This is what the order has to say about the landmark Dean v. District case, decided by the D.C. Court of Appeals in 1995 and likely to figure heavily in any future court challenge: ‘[T]here is now, unlike in 1995 when Dean was decided, such a thing as a valid same-sex marriage….Simply stated, the [recent marriage recognition law] means that the HRA now requires the District government and all public accommodations, inter alia, to refrain from discriminating against same-sex couples who are validly married elsewhere unless the marriage is otherwise prohibited in the District.’ Thus, the board rules, Dean is “not controlling.’
UPDATE, 5:15 P.M.: Next steps for the referendum proponents? They have 10 days to petition a Superior Court judge for a writ of mandamus blocking the board’s decision, which is given expedited review. In an interview last Wednesday, referendum leader Bishop Harry Jackson vowed to appeal an adverse decision in court.
Pastor Patrick J. Walker of the New Macedonia Baptist Church, one of the proponents, says he is “deeply saddened and disappointed” by the board decision. “Simply put, I feel as a citizen of the District of Columbia, once again we’ve been disenfranchised. Our right to vote has been taken away, no different than what’s happened on Capitol Hill….Now we’re doing it ourselves.”
Walker took particular issue with the board’s reading of Dean: “We just don’t believe that in 1995, if it wasn’t a human rights violation then, just 15 years ago, how can it be a human rights violation now? The only thing different is a few persons’ perception.”
UPDATE, 5:35 P.M.: Phil Mendelson, who introduced the marriage-recognition legislation, responds in a statement:
I completely agree with today’s decision of the Board of Elections and Ethics. As I and many others stated when we testified in front of the Board last week, civil rights should not be subject to a referendum. I applaud this decision, as it was based firmly in the tradition of the District’s own progressive Human Rights Act. Recognizing marriages lawfully entered into in other jurisdictions is logical and just. It is unacceptable for government to sanction discrimination on the basis of one’s sexual orientation.
UPDATE, 6:05 P.M.: Board chair Arthur says in a statement, “We understand the sensitivity of this matter and appreciate the large number of citizens and civic organizations who gave input during this process. After giving this matter very careful consideration, the Board feels that our statutory obligation to reject this referendum is clear.”
UPDATE, 6:10 P.M.: David Catania, too:
At the time of its passage, the District’s Human Rights Act was one of the most comprehensive statements on equality in the world. For over 30 years, we have endeavored to perfect and expand our understanding of equality….In my opinion, there is no question that the proposed referendum would have the effect of continuing discrimination. As such, I am pleased with the Board’s decision that the proposed referendum is incompatible with District law.
UPDATE, 9:45 P.M.: Here’s a statement of the D.C. Catholic Conference, the activist arm of the Archdiocese of Washington:
Today’s announcement by the DC Board of Elections and Ethics to deny a referendum on this issue has once again disenfranchised the residents of our city. The DC Catholic Conference is deeply disappointed by the decision to deny voters a voice….
As part of an organization that serves thousands of children and families throughout this city, it would be our hope that residents be given an opportunity to be heard on an issue with widespread implications for children and families. The DC Catholic Conference will continue to strongly advocate for the long-standing and proper definition of marriage as the union between one man and one woman.