Rejection of Washington DC Marriage Referendum Challenged With Legal Suit

On Wednesday attorneys representing Christian Bishop Harry Jackson and seven other D.C. voters filed a suit against a decision by the District of Columbia Board of Elections and Ethics, which ruled that the Marriage Initiative of 2009, a referendum that would have allowed D.C. voters to vote on whether marriage would be recognized solely between one man and one woman, could not be permitted because it violated the D.C. Human Rights Act.

“The people of D.C. have a right to vote on the definition of marriage,” said Senior Legal Counsel Austin R. Nimocks of the Alliance Defense Fund, a group that helps defend religious liberty through legal action, whose attorneys are representing Jackson along with attorneys from Stand4MarriageDC.

He continued: “The D.C. Charter guarantees the people the right to vote, and the council cannot amend the charter for any reason, much less to deny citizens the right to vote. ADF will defend the right of the residents of our nation’s capitol to participate in a legitimate democratic process in the district.”

On September 1st, Stand4MarriageDC, headed by Jackson, had filed a petition that would allow DC citizens to vote on the following proposition: “Only marriage between a man and a woman is valid and recognized in the District of Columbia.”  Last Tuesday, however, the two-person D.C. Board of Elections and Ethics (DCBOEE) ruled that the proposed ballot “authorizes or would authorize discrimination proscribed by the HRA [the Human Rights Act]  and is therefore not a proper subject for initiative.”

The same day that the ballot was shot down the D.C. City Council scheduled a December 1st vote on the “Religious Freedom and Civil Marriage Equality Amendment Act of 2009,” which would legalize homosexual “marriages” within the District of Columbia.  The measure is expected to pass easily.

The DCBOEE’s rejection of the action is not unexpected.  On June 15th, they rejected a similar referendum initiative that would have permitted voters to decide whether same-sex “marriages” from outside the District of Columbia would be recognized.

“We always believed we’d have to take it to Superior Court,” Jackson said after receiving a copy of the DCBOEE’s ruling. “We believe the board has a wrong interpretation of the Human Rights Act.”

The DC Human Rights Act of 1997 prohibits discrimination for “sexual orientation, [and] gender identity or expression” in a variety of areas, but never mentions marriage.  One section of the D.C. Code requires that ballot initiatives not violate this provision.

The petition to the D.C. Superior Court against the DCBOEE’s ruling, therefore, seeks a declaration that “the Initiative does not violate the HRA, because this Court and the Court of Appeals have consistently held that the regulation of the marital relationship falls outside the intended scope of the HRA.”

Furthermore, the petition argues against even the principle that the DCBOEE could reject the initiative for violating the HRA.  According to the petition, the section of the DC Code requiring the law be in accord with the HRA was “imposed by the [D.C.] Council on the people’s right of initiative [and] is an impermissible requirement not authorized by the Charter Amendment Act.”

The D.C. Charter acts as a constitution for the city of Washington.

“The Home Rule Charter tells us that we should have the same rights as the DC Board of Elections and as the DC City Council,” Jackson contends.  “In other words, if they can vote on something, we can vote on something.  If they can initiate a law, we should be able to initiate a law, as what is done in Maine and California.”

Not all members of the D.C. government agree with him.  D.C. Mayor Adrian Fenty, who supports same-sex marriage, said that he thought D.C. had a “fabulous council” to make decisions that D.C. citizens may not.

Wendy Wright, President of Concerned Women for America, criticized such an attitude: “The D.C. Council reeks of rank hypocrisy.  For years they have demanded that D.C. citizens should have the right to vote for congressional representation, which is in direct contradiction to the Constitution. Yet now they are denying D.C. citizens the right to vote on marriage, an institution so fundamental to America’s well-being that territories were not allowed to become states unless they kept marriage between one man and one woman.”

She continued: “D.C. officials are proving, once again, why they need congressional oversight.  They need to be reminded that citizens are not serfs.”

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