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

By Keith L. Alexander
Friday, July 16, 2010; B04

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

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."

Austin Nimocks, senior legal counsel for the Alliance Defense Fund, which has been battling gay unions, said: "The decision from the District of Columbia Court of Appeals today means that those living in our nation's capital are being denied their most fundamental freedom -- the right to vote. We are considering our options to right this wrong, which include asking the Supreme Court of the United States to consider this case."

The four judges who sided with Jackson's attorneys said they primarily questioned the board's interpretation of the law that allowed them to reject the referendum and specifically indicated that they were not ruling against same-sex marriage.

The court's chief judge, Eric. T. Washington, was joined by Judges John R. Fisher, who wrote the dissenting opinion, Stephen H. Glickman and Kathryn A. Oberly. The dissenters said they questioned whether the board was within its guidelines in rejecting Jackson's initiative and whether they correctly interpreted D.C. law in making their decision.

But they agreed that Jackson's initiative would have led to discrimination prohibited by the District's Human Rights Act. "Non-discrimination, tolerance, acceptance and inclusion are all fundamental values to be fostered in a pluralistic society," their opinion said. "But these aspirations are best achieved through a system of laws, and it is vital that the institutions of the District government observe the limits placed upon them" by District laws.

Council member Phil Mendelson (D-At Large) said he was "very pleased" with the court's ruling and noted that all nine of the judges ruled -- despite what Jackson and his attorneys argued -- that the referendum would have been discriminatory.

Staff writer Tim Craig contributed to this report.

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