Advocates of traditional marriage filed an appeal in the District of Columbia today, as expected, seeking review of yesterday’s D.C. Superior Court ruling that a public referendum on the issue would violate the city’s Human Rights Act. The appeal will place the issue before the D.C. Court of Appeals, which will be asked next week to make an expedited decision on the issue. The Superior Court decision represented a victory for advocates of marriage redefinition in the District. The D.C. City Council’s decision to allow same-sex couples to marry is also pending in Congress, whose opportunity to approve or disapprove the law will expire in early March.
The traditional marriage advocates argued that the District of Columbia Charter, a measure approve by Congress in that represents the equivalent of a state constitution, guarantees city residents the right of initiative and referendum on all issues, excluding only measures that require appropriations. Advocates of same-sex marriage have argued that the Human Rights Act, a statutory measure first passed by the Council in 1977, properly limited the scope of initiatives and referenda by disallowing them for proposals that would affect anti-discrimination laws. The Superior Court rejected arguments that the 1977 Council action did not include the definition of marriage, which remained fixed by law in the District until 2009 and which was affirmed by the D.C. Court of Appeals in the 1995 case Dean v. District of Columbia.
The Superior Court’s ruling awards “game” to same-sex marriage advocates, but “set” and “match” are still to come. In addition to the appeal filed by attorneys for Alliance Defense Fund, legislation will be introduced in Congress by Rep. Jason Chaffetz (R-UT) to require the City to allow a referendum on the issue if voters seek one. If Congress acts on the bill, it will supersede any local interpretation of the Human Rights Act.
For now, the Superior Court’s ruling may be another manifestation of the “liberal ratchet” theory that holds that once a public policy is moved in a liberal direction, it can’t or won’t be reversed. For example, no one contends that if advocates of same-sex marriage had petitioned to put their definition on the D.C. ballot in 2008, any court would have blocked it. Yesterday’s decision by the Superior Court amounts to viewpoint discrimination against half or more of D.C. residents.