By Tim Craig
Washington Post Staff Writer
Tuesday, June 16, 2009
A ruling yesterday by D.C. elections officials suggests that only Congress or the courts can thwart the gathering momentum to legalize same-sex marriage in the District.
In a decision that reaffirms the rights of gays and lesbians under the city's civil rights law, the Board of Elections and Ethics blocked a proposal to let voters decide whether to recognize same-sex marriages performed in other jurisdictions.
Unless a court intervenes, same-sex couples who marry in other states or countries will be considered legally married in the District as well in less than a month. And by the end of the year, the D.C. Council is expected to approve a bill to allow same-sex couples to be married in the city.
The opinion states that city officials would "authorize discrimination" if they were to permit a referendum on whether to afford same-sex couples married elsewhere the same rights as opposite-sex couples.
The two-member board cited District elections law, which prohibits a vote on a matter covered by the Human Rights Act. The 1977 act outlaws discrimination against gays and lesbians and other minority groups.
"The Referendum's proposers would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere," the ruling states. "Because the Referendum would authorize discrimination prohibited by the HRA, it is not a proper subject for referendum, and may not be accepted by the Board."
Peter Rosenstein, a veteran gay rights activist, called it a "very strong opinion."
"I think this is a case where the human rights amendment protected the rights of individuals, and that is what it is supposed to do," Rosenstein said. "In the District, you don't put rights of a minority up to votes of a majority."
Bishop Harry Jackson, a same-sex-marriage opponent who is pushing for the vote, called the ruling an "insult." His attorneys said they plan to file an appeal today in Superior Court.
"The real human rights issue at stake in this decision is whether the people of D.C. will be given their right to vote," Jackson said. "We are not going to sit still for allowing an unelected board of bureaucrats to deny voters their rightful say on this issue and, by their action, allow the institution of marriage to be radically redefined."
If the court declines to intervene, the bill that the D.C. Council approved in May recognizing same-sex marriages performed in other jurisdictions will become law in early July, after the required congressional review period has ended.
It does not appear that Congress plans to intervene. Same-sex marriage remains illegal under federal law, and same-sex couples are prohibited from marrying in the District.
Edward S. Grandis, who married his partner last summer in California before voters there outlawed same-sex marriage, said that with the elections board decision he feels as if he has been freed from "second-class status."
"It gives me great satisfaction that I and my spouse will be accorded the same rights and dignity as all other marriages in the District," said Grandis, 55, who lives in Dupont Circle.
Yesterday's ruling will probably embolden the D.C. Council to take up a separate proposal this year to allow same-sex marriages to be performed in the District. David A. Catania (I-At Large) said he plans to introduce the legislation in the fall.
Board officials note that yesterday's ruling applies only to the question of whether a vote can be held on the bill to recognize same-sex marriages performed elsewhere. But the opinion by Errol R. Arthur, chairman of the board, and member Charles R. Lowery Jr., strongly suggests that the board would be skeptical of any initiative that would deny gays and lesbians any rights that straight people have.
"I don't want to speak for what the board will do in the future, but it does look like their decision is fairly sweeping," Catania said. "It will be hard going forward for opponents of same-sex marriage to be successful using either the initiative or the referendum process."
D.C. Attorney General Peter Nickles said he agrees with yesterday's ruling but cautions that it might not apply to a vote on same-sex marriages performed in the District. "I haven't made up my mind on that," he said.
At a hearing last week, opponents of same-sex marriage said a vote would not violate the Human Rights Act because an appellate court ruled in 1995 that the District need not recognize same-sex marriages.
In Dean v. the District of Columbia, the D.C. Court of Appeals ruled that the Human Rights Act did not apply because family law referenced husband and wife. Since then, the D.C. Council has made such references gender-neutral and has updated the act to include references to same-sex couples married elsewhere.
The elections board indicated that the 1995 appellate ruling is no longer valid "in this matter."
"Simply put, the Act means that the HRA now requires the District government and all public accommodations . . . to refrain from discriminating against same-sex couples who are validly married elsewhere," the elections board stated in yesterday's ruling.
When the council considers whether to legalize all same-sex marriages, Catania said the legislation could be drafted in such a way that it is covered under family law and the Human Rights Act.
The Rev. Derek A. McCoy, a same-sex-marriage opponent who represents Stand4Marriage, said he remains optimistic that same-sex marriage can be derailed in the District.
""I think we need to work the process and we need to work the courts," McCoy said.