Yesterday marked the beginning of the final stage of the process that will determine whether the people of the District of Columbia will have an opportunity to vote on same-sex marriage under the city’s Home Rule Charter. Over the past few months, while debate has focused on the content of any religious exemptions from the new law adopted by the City Council in December, the groundwork was being laid for a drive to put the redefinition of traditional marriage on the ballot in the District.
The legal fight has had several layers. Last spring the D.C. City Council voted to recognize in the District any marriages contracted by same-sex couples in other jurisdictions besides D.C., where it was illegal. This included U.S. states where the practice was permitted and nations overseas. Supporters of traditional marriage filed for a referendum under D.C. law that would have allowed voters a fast-track opportunity to disapprove and thereby repeal the new law. That effort failed when the D.C. Board of Elections and Ethics ruled that a referendum could not be held on the same-sex marriage recognition law because the D.C. Human Rights Act prohibits the subjecting of its provisions, including the new law, to popular vote. The D.C. Superior Court then upheld the BOEE’s ruling.
Next came the City Council’s proposal to allow D.C.’s own same-sex couples to marry. To deter the law’s passage and put the Council on notice, advocates of traditional marriage filed for an initiative that would affirmatively establish one man-one woman marriage as D.C.’s policy. Whether this initiative can legally proceed was the subject of yesterday’s hearing before the BOEE. On a parallel track, however, the D.C. Council proceeded to adopt same-sex marriage for D.C. residents on December 15, Mayor Adrian Fenty signed that measure into law on December 18, and on Tuesday this new law was transmitted to Congress, kicking off the 30-legislative-day Congressional review period before the law becomes final.
Even as Stand4MarriageDC, which is leading the fight for traditional marriage, was making its case at the BOEE hearing yesterday, the group filed in the same office for a referendum on the new law. With the initiative, Stand4MarriageDC is playing offense. With the referendum, it is playing necessary defense since most observers expect the Democratic Leadership to bar a vote of disapproval during the review period. The most appropriate action for both the BOEE and the D.C. Superior Court, which must now hear the referendum request on an expedited basis, would be to approve both measures for the ballot.
Stand4MarriageDC has a strong case. The D.C. Home Rule Charter, essentially the federal city’s version of a constitution, authorizes referenda and initiatives on all but issues giving rise to City appropriations. The definition of marriage in D.C. is not such an issue, and Stand4MarriageDC logically contends that the Human Rights Act is merely a statute and cannot be exploited by the Council to limit the scope of referenda/initiatives under the Charter.
Events should move swiftly now, and the real question is whether the people of the District of Columbia will have an opportunity to be heard on this fundamental question. Unlike the opponents of Proposition 8 in California, who are pursuing a federal court case to overturn that state’s constitutional amendment protecting traditional marriage, Stand4MarriageDC is pursuing a legal strategy to affirm the people’s opportunity to have their voice heard on a contentious social policy issue.
