D.C. judge rules against marriage referendum

Council member David A. Catania calls the decision
Council member David A. Catania calls the decision "thorough and far-reaching." (Sarah L. Voisin - Post)
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By Tim Craig
Washington Post Staff Writer
Friday, January 15, 2010

A D.C. Superior Court judge ruled Thursday that same-sex marriage opponents do not have a right to call for a referendum to determine whether such unions should be legal in the District.

The decision, a major victory for gay rights activists, makes it more likely that the District will begin allowing same-sex couples to marry in March.

In the 23-page ruling, Judge Judith N. Macaluso affirmed a D.C. Board of Elections and Ethics decision that city law disallows the ballot proposal because it would promote discrimination against gay men and lesbians. Macaluso also concluded that previous court decisions outlawing same-sex marriage in the District are no longer valid.

Council member David A. Catania (I-At Large), the sponsor of the D.C. Council same-sex marriage bill signed last month by Mayor Adrian M. Fenty (D), called the decision "thorough and far-reaching."

"The ruling, which addressed the substantive legal issues before the court, sustains the District's tradition of treating all citizens equally under the law," Catania said.

The election board has twice ruled that a referendum on same-sex marriage would violate a city election law prohibiting such a vote on a matter covered by the Human Rights Act, which outlaws discrimination against gays and other minority groups.

Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, appealed that ruling to Superior Court. Last week, 39 members of Congress filed a brief in support of Jackson's appeal, arguing that the election board overstepped its authority in denying a public vote on whether marriage should be defined as a being between a man and a woman.

Jackson and his attorneys said Thursday that they will appeal Macaluso's ruling. They contend that that the laws in question were written in the late 1970s, long before same-sex marriage was an issue, and should not prevent a referendum.

"We are fighting for justice and defending the rights of the people of the District of Columbia," Jackson said. "We have always anticipated that our quest for voting rights on the issue of marriage would end up in our higher appeals court, and today's ruling confirms that is where the issue is headed."

In her decision, Macaluso stated the board "properly rejected the proposed initiative" because of the Human Rights Act. The judge also rejected arguments that same-sex marriage should be illegal in the District because of the 1995 Dean v. District of Columbia decision.

In that case, the D.C. Court of Appeals ruled that the city did not have to recognize same-sex marriage because the government's intent to oppose such marriages was clear. Now, Macaluso concluded, the intent of the government in favor of allowing two men or two women to marry is clear.

"These clear manifestations of intent to alter the traditional definition of marriage did not exist when Dean was decided," the judge wrote. "Dean expressly relied upon the absence of such indications in concluding that the Council intended to retain the definition of marriage as occurring only between a man and a woman.

"Under these circumstances, Dean's holding is no longer controlling."

Despite opponents' plans to appeal, they are running out of time to block same-sex marriages in the District. Congress has begun the required 30-legislative-day review of the same-sex marriage law.

City leaders said that, barring intervention by Congress, marriage licenses will be available to same-sex couples around the first week of March.

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