July 15, 2010 at 6:27 pm EDT | by Lou Chibbaro Jr.
D.C. court rejects ballot measure on gay marriage

The D.C. Court of Appeals ruled 5-4 Thursday that the city acted within the law when it refused to allow a minister to place a voter initiative on the ballot seeking to overturn the city’s same-sex marriage law.

The court’s nine judges unanimously agreed with the D.C. Board of Elections & Ethics that a ballot measure to overturn the D.C. Marriage Equality Act, if approved by voters, would constitute discrimination prohibited by the city’s Human Rights Act.

But four of the judges, including Chief Judge Eric Washington, dissented from the majority, saying the law banning ballot measures that would result in discrimination prohibited by the Human Rights Act is invalid because the City Council passed it in violation of the congressionally approved D.C. Home Rule Charter. Associate Judge John Fisher wrote the dissenting opinion.

The majority decision, written by Associate Judge Phyllis Thompson, says the Council acted within the scope of the Home Rule Charter and a subsequent charter amendment, which it says gave the Council sufficient discretion to restrict ballot measures from taking away rights protected under the Human Rights Act.

In issuing its decision, the appeals court upheld an earlier ruling by a D.C. Superior Court judge, who also held that the election board acted within the law in denying Bishop Harry Jackson’s petition to file papers to place the Marriage Equality Act on the ballot as a voter initiative.

Jackson, pastor of a church in Beltsville, Md., recruited several D.C. same-sex marriage opponents to join him as plaintiffs in the case, Jackson v. D.C. Board of Elections & Ethics.

Jackson has said he would appeal the case to the U.S. Supreme Court if his side lost at the appeals court level.

Legal experts have said it’s possible — but unlikely — that the Supreme Court would agree to take the case because it is based on a local issue of whether the D.C. Home Rule Charter and a subsequent amendment to the charter allows ballot measures to be held that would result in discrimination. The case would not be on the issue of same-sex marriage itself or whether the U.S. Constitution requires states to accept same-sex marriage, as other pending lawsuits in state courts have asserted.

“The court’s ruling today is a significant victory for justice, the rule of law and the protection of all D.C. residents against discrimination,” said Human Rights Campaign President Joe Solmonese. “It’s time for the National Organization for Marriage to realize equality is here to stay no matter how much money they want to throw at turning back the clock.”

Solmonese was referring to efforts by the National Organization for Marriage, an anti-gay group, to use its sizable financial resources to support Jackson’s campaign to overturn the D.C. Marriage Equality Act.

Solmonese added, “The D.C. Council made a wise decision decades ago that no initiative should be permitted to strip away any individual’s civil rights. The court unanimously found that the proposed anti-marriage initiative would have the effect of causing discrimination, and in doing so, stood up for the entire D.C. community.”

Rev. Anthony Evans, president of the D.C.-based National Black Church Initiative and one of the plaintiffs who joined Jackson in seeking to overturn the same-sex marriage law through an initiative, said opponents of the law will continue their fight.

“Today the court has told the 500,000 residents of the District of Columbia that we have no right to vote on their own laws,” Evans said in a statement. “This is wrong. We should have a right to vote on issues challenging the fabric of our lives here in D.C. Like I’ve said in the past, we will continue to fight — taking this all the way to the Supreme Court. We will not give up easily.”

In the majority decision, Thompson said the claim by Jackson and those who joined him in challenging the city’s decision to ban a marriage ballot measure rested on the technical question of whether the City Council had the authority to pass implementing legislation to restrict voter initiatives or referenda.

“Appellants’ challenge focuses on the validity of Council legislation that requires the [election] board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act,” Thompson said in the decision.

“Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination.

“We disagree with both contentions, and we therefore affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the [election] board correctly determined that the safeguard required it to reject the proposed initiative.”

D.C. City Council member Phil Mendelson (D-At Large), who chairs the committee that guided the same-sex marriage law through the Council, called the appeals court decision a major victory for the city and the law’s supporters.

“It’s significant that all of the judges agree that Bishop Jackson’s initiative would be discriminatory,” Mendelson said.

Jackson could not be immediately reached for comment.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • This is a great day for D.C. Thanks are owed to Solicitor General Kim and AG Nickles for their fine work in this case; to Councilmembers Catania and Mendelson for their work on the Marriage Equality Act, and to Mendelson for testifying several times in its defense before the Board of Elections; to all our allies who worked for passage and who testified before the Board of Elections; and especially to Bob Summersgill, whose careful strategy of laying the legal groundwork brick by brick over many years left our opponents with few good arguments. Hooray for all of us and for our city.

  • This is wonderful news to be sure. Not certain how it would fare before the U.S. Supreme Court – a 5/4 defeat would be disastrous for us similar to the Bowers vs. Hardwick decision. What is just DISGUSTING is black ministers (Jackson and his ilk) advocating a sharecropper role for GLBT Washingtonians.

  • Bill, please keep in mind that many clergy, including African American clergy, supported us. You can find their Declaration of Religious Support for Marriage Equality, and a list of signatories, here:

    As to the U.S. Supreme Court, it is unlikely to take the case. For one thing, there is no clear federal question in the case.

  • Bishop Harry Jackson is wasting his time appealing to the U.S. Supreme Court the ruling by the D.C. Court of Appeals blocking the placement of a ballot measure to overturn D.C.’s same-gender marriage statute.

    Not only is the high court unlikely to take the case, on the grounds that it is a strictly local issue, but Bishop Jackson risks a countersuit to stop his attempt to overturn the marriage law on the grounds that it is a thinly-disguised attempt to enshrine an anti-gay religious doctrine into public law, a clear violation of both the Establishment of Religion Clause of the First Amendment and the Religious Test Clause (Article VI, Section 2) of the U.S. Constitution.

    Gay and lesbian couples clearly have a Fourteenth Amendment constitutional right to marry — the same right that interracial couples won in 1967 when the Supreme Court, in Loving v. Virginia, struck down laws that banned racially mixed unions.

    It is a right that a right that gay and lesbian couples earned in 2003 when the high court, in Lawrence v. Texas, struck down the last remaining anti-sodomy statutes, fully decriminalizing same-gender sexual relationships and removing the last legal barrier to gay and lesbian couples marrying.

    And it is a right that no state can deny to gay and lesbian couples — as the Supreme Court ruled in 1996, in Romer v. Evans, when the justices struck down a voter-approved measure in Colorado that repealed all state and local laws that outlawed anti-gay discrimination and barred the future enactment of any similar laws.

    The time has come — indeed, it is long overdue — for supporters of same-gender marriage to make this an issue of gays and lesbians’ constitutional rights. The Constitution is the supreme law of this country — It says so in Article VI, Section 2. Gay and lesbian couples have a constitutional right to marry — and no religious dogma against homosexuality can trump it. Bishop Jackson and other anti-gay religious leaders must stop trying to make their anti-gay dogma the law of the land.

  • I still, for the life of me, can’t understand why so many feel the need to care what we, gays, do in our own privte lives? Will it hurt those straight people that we are allowed to marry? I don’t think so. I was one of the lucky that got married in March 2010. I was able to marry my partner of 3 years and we are happy and thrilled to be able to call one another husband. We haven’t hurt anyone out there. We are just two handsome fellas who wanted to get married and so we did thanks to the efforts of Councilman Mendelson and his crew. Jackson should worry about his own family life and leave everyone else to their own.

  • Harry Jackson, half the court of appeals and thousands of Maryland – oops, uh, DC – christian evangelicals want to invalidate a DC law banning ballot measures which result in discrimination? really?? Amazing… Well, better give the people what they want. Maybe Barabbas is available too… check with Lazarus, he’ll know ;)

  • Oh, I cannot WAIT to see the backlash to all that you have created here… and it’s gonna be global, I’m sure… congratulations, Mr. Harry Jackson! And Tony Perkins, and Maggie Gallagher, u too… if ever “satan” had a plan and some wolves and some fine clothing, well, then I’m sure you would all qualify to lead his sheep astray. Yes, congratulations, God couldn’t be more displeased with you than he already is. What – A – Sight you all are. Very entertaining. Thx again :)

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