‘Activists Grandmothers’
courtesy of ‘Poldavo (Alex)’

Did the Board of Elections and Ethics kill the gay marriage debate in DC by ruling against “The Referendum Concerning the Jury and Marriage Amendment Act?”  Hardly. It codified DC’s position on defining marriage and headed off the marriage-opponents’ major strategy, but it didn’t come near to ending the debate.  After unpacking the Board’s reasoning and looking at where the ruling leaves both sides, the battle lines are still in basically the same place. No legal answer was given as to whether or not DC will be the next area to legalize gay marriage.

I realize that in saying this, I appear to be back-pedaling.  In my my previous post on this subject, I said that a referendum was the best shot that marriage opponents had at having their way.  In saying that, I was not referring to what ended up before the board.  At the time, it appeared the the referendum would be a comprehensive, Prop 8 type piece of legislation.  Instead, the referendum proffered was designed to prevent the city from recognizing legal, same sex marriages performed in other states and countries.

Under DC law, referendums are subject to the scrutiny of the Board of Elections and Ethics.  This board ensures that referendums meet the legal standards of the city and either accept or deny them based on its analysis.  The referendum in question met the Human Rights Act (HRA) of 1973 as its primary challenge.  This act, amongst other things, prohibits discrimination based on sexual orientation.  Referendum opponents argued that a heterosexual definition of marriage constitutes such discrimination and could not meet the city’s standards.  Proponents pointed to a 1995 Superior Court case, Dean v. District of Columbia, which ruled that the denial of marriage to people of the same sex did not violate the HRA.  The court found that marriage required two people of the opposite gender, a test which homosexual couples failed to meet.

Unfortunately for referendum proponents, the Board ruled that this case was not controlling.  In Dean, the court based its definition of marriage on legislative precedent which, at the time, bore no mention of same sex marriage.  That was 15 years ago.  In the intervening time, the national political landscape has changed.  Six states currently grant marriage licenses to homosexual couples. Accordingly, a new precedent has been set in that legal, same-sex marriages do exist. The Board also cited the Council’s recent efforts to remove gender specific references in marital and parental responsibilities from legal codes. The deciding factor in the board’s analysis was the passage of the “Jury and Marriage Amendment Act” by the City Council in May. This act clarifies current DC law, specifically stating that the city will recognize legal, same-sex marriages performed outside of its jurisdiction

Given these facts, the Board reasoned that the referendum violated the Human Rights Act.  The logic was that if a couple was married in another state and moved to the District, part of city’s criteria for recognizing their marriage would be based on the sexual orientation, constituting discrimination.

This ruling is a blow to marriage opponents in the city, but, is, by no means, the end of the issue. The referendum’s proposers have 10 days to appeal the Board’s decision to the DC Superior Court, which could, theoretically, allow the referendum. Even if the Superior Court were to overturn the Board’s decision, gay marriage opponents would face an almost insurmountable challenge in collecting enough signatures to get the Referendum on the ballot.  They would need around 30,000 by July 6.  Then, there is no guarantee that the measure would pass, and, even if it did, it would effect almost no legal change.

The proposers assume that it will, but as was noted in the Board’s decision, this assumption is a misunderstanding of the law. Specifically, the Referendum sought to remove the verbiage proposed in the “Jury Act” that specifically includes gay marriage.  The goal was to keep the law in its current form, which is to recognize all, legal marriages performed outside of the jurisdiction of the city, presumably including same-sex. Even if the referendum had become law, the District would still be obligated to recognize homosexual marriages, so long as they were performed legally.  So, regardless of the outcome, the city would be in, more or less, the same place.

So, where does this leave everything?  In spite of all the wrangling and controversy, not all that far from where it all began.  Legally, the situation in DC is the same. The failure of the referendum means that the “Jury and Marriage Amendment Act” will still become law in July and marriage licenses will still only be issued to heterosexual couples.  If anything, it simply codifies the DC government’s position on how the HRA applies to the marriage debate, which is a victory for gay rights advocates.  Ideologically, the Board’s decision shows that the District’s government is favorable towards gay marriage, something which most people already knew.

In the end, the Referendum was a somewhat comical attempt by gay-marriage opponents to make this city less gay friendly. It would have done practically nothing and its failure means practically nothing.  The referendum strategy is still the correct one for marriage opponents to take, but it will necessarily be reactionary.  They must wait until DC starts issuing marriage licenses before they can introduce a referendum prohibiting such action.  That being said, both sides should take this incident for what it is: a minor skirmish. Marriage legalization is coming, and that’s where the big fight will be.