DC Elections Board Blocks Marriage Referendum
June 15, 2009,
This post by HRC Assistant General Counsel Darrin Hurwitz.
Moments ago, the D.C. Board of Elections ruled that legislation recognizing same-sex marriages performed in other jurisdictions, passed overwhelmingly last month by the D.C. Council and signed by the mayor, isn’t a proper subject for a public referendum under D.C. law. D.C. law prohibits any referendum that authorizes discrimination or has the effect of authorizing discrimination under the Human Rights Act. Today’s Board decision is an important victory for D.C. residents, for fairness, and for the rule of law here in the nation’s capital.
Let’s recap how we got to this point. In May, the D.C. Council passed by a 12-1 vote legislation clarifying that D.C. law recognizes same-sex marriages performed elsewhere. This means, for example, that a same-sex couple legally married in Massachusetts would have their marriage recognized in D.C., in the same manner as any other couple whose marriage had been performed in Massachusetts or another jurisdiction. Mayor Adrian Fenty signed the legislation, and it is currently under review by Congress until early July.
Enter into the picture Bishop Harry Jackson, Jr. of Maryland and the New Jersey-based National Organization of Marriage, desperately seeking any means to undo the nearly-unanimous decision of D.C’s local elected officials. Any registered D.C. voter may propose a referendum to suspend an act of the D.C. Council until it has been put to a public vote. The Board of Elections then is charged by law with determining whether the referendum is eligible for the ballot or violates certain prescribed subject matter limitations. Bishop Jackson, whose D.C. voter registration status itself has been questioned, submitted a referendum at the end of May to undo the marriage recognition law. At the Board hearing, Bishop Jackson and his supporters regurgitated worn-out arguments against marriage equality—including one speaker, applauded by some of Bishop Jackson’s supporters, who offensively suggested that LGBT persons should not receive the benefits of the Human Rights Act because they are less than human. No one, however, could convincingly refute the legal issue at hand—that the referendum would enshrine discrimination based on sexual orientation and therefore discriminate under the Human Rights Act.
The Board’s decision today serves as a reminder that even in a democracy, people’s fundamental civil rights should not be put to a public vote—although perhaps it was lost on Bishop Jackson and his allies that the public has already spoken on this issue through our elected council members and mayor. The drafters of D.C.’s referendum law showed considerable foresight in protecting against insidious measures like this that would discriminate based on race, gender, sexual orientation, etc. In reaching its decision the Board faithfully followed the law and, in doing so, took an important step towards ensuring that marriages performed in other jurisdictions will be treated equally under D.C. law.
But we are not yet out of the clear. Opponents of marriage equality could still challenge the Board’s decision in court, and the legislation does not take effect until the end of Congress’ 30-day review period, in early July. NOM and others have vowed to continue their fight, which means supporters of equality must remain vigilant in continuing to work for marriage rights in D.C. We should also remember that full marriage equality will not be achieved until D.C. takes the next step and expressly permits same-sex marriages to be entered into in this jurisdiction.
It’s also important to recognize that decisions like today’s don’t come easy but are the results of persistent and capable advocacy by individuals and organizations in our community. Special thanks go to the Gay and Lesbian Activists Alliance, the Gertrude Stein Democratic Club, the ACLU of the National Capital Region, Council member Phil Mendelson and the other individuals and organizations who advocated to the Board in written comments and oral testimony.