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Same-sex marriage in District narrowly upheld by D.C. Court of Appeals

During a chance second encounter in Baltimore in 1945, Henry Schalizki, 88, and Bob Davis, 89, met and fell in love. More than six decades later, the couple finally legalized their union.

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By Keith L. Alexander
Friday, July 16, 2010

The D.C. Court of Appeals narrowly sustained same-sex marriage in the District in a 5 to 4 vote Thursday.

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The nine judges were asked to determine whether the D.C. Board of Elections and Ethics acted lawfully when it rejected an initiative by opponents of gay marriage to have the matter voted upon in a referendum. The D.C. Council approved same-sex marriage in December.

A D.C. Superior Court judge upheld the board's decision in January, and the bill became law in March.

In May, attorneys for opponents of same-sex marriage -- led by Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville who has a D.C. residence -- argued before the nine appellate judges that the board's decision violated the District's Human Rights Act and that the council had overstepped its authority.

In an 81-page decision released Thursday, the five affirming judges -- Phyllis D. Thompson, Vanessa Ruiz, Inez Smith Reid, Noel Anketell Kramer and Anna Blackburne-Rigsby -- disagreed with that argument, saying that the board was within the law in making such a decision.

The judges said they were convinced that the council would not have authorized "any initiative" that would have discriminated against residents and violated the Human Rights Act. The judges also wrote that the board "correctly determined that the proposed initiative would have the effect of authorizing such discrimination."

The judges further stated that the council "was not obliged to allow initiatives that would have the effect of authorizing discrimination prohibited by the Human Rights Act to be put to voters, and then to repeal them, or to wait for them to be challenged as having been improper subjects of initiative, should they be approved by voters."

Based on that conclusion, the judges ruled that the board acted lawfully in refusing to accept the Jackson initiative.

Peter D. Rosenstein, a gay and lesbian rights activist, hailed the ruling as a "victory for decency and civil and human rights."

Because all nine judges heard the case, Jackson's attorneys have no further course of appeal unless they take their case to the U.S. Supreme Court and the justices choose to hear it. After the ruling, Jackson said he and his attorneys are planning such an appeal.

He called the Appeals Court's decision a "sad day" but added that he was "encouraged" by the split vote.

"This is a very precedent-setting decision for District citizens because of the issue of whether an initiative can be blocked by District laws," Jackson said. "The people have a right to vote on this issue."


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