WAPO reports that the authors of the recent Gay Marriage Referendum are taking their cause to court, asking judges to overturn the Board of Elections and Ethics’ Monday decision to block the proposal. The Board ruled that the Referendum, designed to annul the City Council’s decision to recognize same-sex marriages performed elsewhere, was in violation of the city’s Human Rights Act, which prohibits discrimination based on sexual orientation. The Board stated that the proposal would extend or deny rights to legally married couples based strictly on their sexual orientation, thereby making it illegal. The Plaintiffs argue that Dean v. District, a 1995 court case which ruled the denying marriage to same-sex couples did not violate the HRA, validates their proposal. An expedited hearing has been requested.
Do referendum proponents have a case? Well, yes and no. On the one hand, DC’s legal precedent is lacking, making the Board of Elections’ decision shaky. The Board based its decision on recent legislation, primarily on the “Jury and Marriage Act,” the very item that the referendum sought to countermand. The problem is that, technically, this act is still under Congressional review and has yet to become law. It does reflect the City Council’s will, but it’s not part of the legal code, yet, making it a very weak authority. Similarly, Dean v. District, the one piece of precedent that actually speaks to gay marriage, ruled that prohibition did not violate the HRA.
On the other hand, the decision in Dean, as the board noted, was based on the fact that legal gay marriages did not exist in 1995. In 2009, they do. This, coupled with the neutering of gender specific language in DC family law, suggests that factoring gender into legal decisions does constitute discrimination.
From my perspective, it’s a toss up. I don’t think that the Board of Election’s decision was particularly well reasoned, but they didn’t have much to go on. Even if the court overturns the ruling and the referendum passes, it would simply keep the law in its current state, which is to recognize legal, consensual, monogamous, non-incestuous marriages performed in other jurisdictions. This, presumably, includes same-sex marriages as they are not expressly prohibited. Regardless of the decision, this court case appears to be exercise in futility.
For more on the Board’s decision, see my post from Tuesday