The Rise and Fall of the National Organization for Marriage

DC Elections Board Rules Against Prop.-8 and Question 1 Style Ballot Initiative

November 17, 2009

Today, the D.C. Board of Elections and Ethics announced their ruling [pdf] that for a second time that a proposed ballot measure that would undermine marriage equality in the District is not a proper subject for a referendum or initiative.  The Board’s decision to prevent a measure like California’s Prop 8 or Maine’s Question 1 from possibly reaching the ballot is strongly supported by D.C. law, which wisely prohibits any initiative that authorizes discrimination or has the effect of authorizing discrimination under D.C.’s Human Rights Act.

Marriage equality opponents tried for another bite of the apple after losing before the Elections Board and in court this past May.  Then, opponents – led by Bishop Harry Jackson Jr. and the National Organization for Marriage (NOM) – sought a referendum that would have undone the D.C. Council’s decision to recognize marriages performed in other jurisdictions.  The Board, which is charged by law with determining whether a referendum or initiative is eligible for the ballot, unanimously determined that a vote on whether the District should recognize same-sex marriages would improperly authorize discrimination under the Human Rights Act, one of the prescribed subject matter limitations.

Not taking no for an answer, Bishop Jackson and NOM sued in D.C. Superior Court.  The judge agreed with the Board and ruled that such a referendum would improperly discriminate under the D.C. Human Rights Act.  And for good legal reason: the Human Rights Act explicitly states that it is unlawful for the District to refuse to provide any services or benefits to any individual on the basis of their sexual orientation.  However, the proposed referendum would have obligated the District to refuse to recognize marriage licenses legally granted elsewhere solely because of the couples’ sexual orientation.

Now the Council is considering and likely to approve a bill that would legalize same-sex marriages in the District.  In response, Bishop Jackson, NOM and their lawyers again went before the Elections Board, this time with a new, more pernicious proposed initiative.  This one, echoing California’s Prop. 8 and Maine’s Question 1, would define marriage as between a man and a woman, thus eliminating same-sex marriage in the District altogether.  Not surprisingly, today the Board reached the same decision as it did last time.  Now, marriage equality opponents have threatened to take the battle back to the courts, where they lost in June and where they face an uphill battle on tenuous legal grounds.

Bishop Jackson has also launched a public relations battle to try to convince the Board, the Council and even Congress that the public is being denied the right to vote on this issue and analogizing to D.C.’s own painful history of being denied voting representation in Congress.  “Let us vote!” chanted a few community members – some of whom didn’t even live in the District – at the Board hearing.

This argument that somehow the right to vote is implicated here fundamentally misconstrues how a representative democracy works.  The 13 members of the D.C. Council function as representatives on decisions large and small that matter to District residents.  This is what they were elected to do.  The Council held two days of public hearings on same-sex marriage and will eventually vote on the public record.  Residents have the opportunity to express their views to their council members, and if they do not like their decisions on this or other issues, to try to vote them out at election time.  This representative form of government has served the United States well for more than 200 years.  It is precisely why District residents have long demanded a voice in Congress.

While some jurisdictions provide for direct democracy via initiative, such a process – generally adopted during the Progressive Era – was never intended as a means to take away the fundamental rights of an entire community.  Increasingly, many are expressing concerns about initiatives, such as Prop. 8 and Maine’s Question 1, that have increasingly done just that.  Last month, California Supreme Court Chief Justice Ron George spoke out about his frustration with last year’s California initiative vote, in which, he noted, “chickens gained valuable rights … on the same day that gay men and lesbians lost them.”

Fortunately, in D.C., the drafters of the election laws had the foresight many years ago to ensure that the initiative process could not be used to discriminate against groups protected by the D.C. Human Rights Act.  D.C. law is, in fact, clear that the right that is implicated by the proposed anti-marriage initiative is the right of the LGBT community and other minority groups to not have their fundamental civil rights decided by a majority vote.  This is a right that all District residents – black, white, gay or straight – should want to protect.

This post was written by HRC Assistant General Counsel Darrin Hurwitz.