DC Appeals Court Rejects Right of Voters to Decide Marriage

Majority Finds "Traditional" Marriage Discriminatory
(See update: Supreme Court Rejects Appeal 1/19/2011)

WASHINGTON, July 15, 2010 — In a narrow 5–4 ruling, the U.S. Court of Appeals for the D.C. Circuit, upheld the decision of the D.C. Board of Elections and Ethics to block residents from voting on the legal definition of marriage. This was despite a requirement by the D.C. Charter, which serves as a constitution for the district, that guarantees citizens the right to initiate and vote on any legislation except for “laws appropriating funds.”

In the majority opinion, the court framed the question before it as whether an initiative defining marriage between a man and a woman “would authorize or have the effect of authorizing discrimination on a basis prohibited by the Human Rights Act. ... We have no difficulty concluding that the proposed initiative would do so.” The initiative had the same wording as California's Prop 8 and Maine's Question One.

"It was the Washington, DC same-sex 'marriage' law that forced Catholic Charities to give up providing services to children who had been deprived of their mothers and fathers," said William B. May, Chairman of Catholic for the Common Good. " If they continued, they would have been forced to place children with same-sex couples. When a child is deprived of his or her mother and father, a man and a woman are the only people that can stand in for the people who were unable to fulfill their responsibilities to the child. To deny the child the experience of being cared for and raised by a man and a woman in these circumstances is a second privation and an assault on the dignity of the child according to Church teaching."

"The only way for judges to find that the 'traditional' definition of marriage is discriminatory is to consider marriage as merely an institution for committed relationships between adults for their benefit. Of course, we know marriage is a reality uniting a man and a woman to each other and to any children that come from the relationship. This reality must be recognized in civil law because it clearly serves the public interest and coincides with the common interest of every child in the marriage of his or her mother and father. This is the mission of CCG's Stand with Children Project."

Alliance Defense Fund and Stand4MarriageDC attorneys are considering an appeal to the U.S. Supreme Court. ADF and Stand4MarriageDC attorneys represent Bishop Harry Jackson, Jr.; Del. Walter E. Fauntroy; and other registered voters. A Jan. 28 Washington Post poll showed that 59 percent of adult D.C. residents believe voters should be allowed to vote “yes” or “no” on the definition of marriage in the district.

“In America, we respect the right to vote. The citizens of the District of Columbia should not have their voices suppressed by the government, but that is exactly what is happening here,” said ADF Senior Legal Counsel Austin R. Nimocks, who argued before the court on May 4. “The decision from the D.C. Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom: the right to vote. We are considering our options to right this wrong, which include asking the U.S. Supreme Court to consider this case.”

On Sept. 1, 2009, Jackson, Fauntroy, and other D.C. registered voters filed the Marriage Initiative of 2009. The initiative provides that “[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia,” affirming the district’s only definition of marriage at that time. The initiative was to be placed on the ballot for district voters to express their views either for or against the initiative, but on Nov. 17, 2009, the D.C. Board of Elections rejected the initiative, saying the subject was not proper in light of the D.C. Human Rights Act of 1977.

ADF and Stand4MarriageDC attorneys representing initiative proponents filed a lawsuit with the D.C. Superior Court contesting that decision the next day. The suit points out that the D.C. Charter guarantees citizens the right to initiate and vote on any legislation except for “laws appropriating funds.” It is undisputed that the Marriage Initiative of 2009 does not seek to appropriate funds.

The dissent accompanying the opinion of the court states, “Non-discrimination, tolerance, acceptance, and inclusion are all fundamental values to be fostered in a pluralistic society. 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 the Home Rule Act and the Charter. It is ‘our…duty to oversee Council action which might exceed congressionally delegated authority.’ The Council of the District of Columbia exceeded its authority when it imposed the ‘Human Rights Act limitation’ on the right of initiative. We respectfully dissent.”

Stand4MarriageDC.com attorney Cleta Mitchell is serving as co-counsel in the suit, Jackson #2 v. District of Columbia Board of Elections and Ethics. Mitchell and ADF attorneys also represent voters in a separate lawsuit, Jackson #3 v. District of Columbia Board of Elections and Ethics, regarding whether D.C. voters should have a say via referendum on the district’s marriage redefinition law. That case is still under consideration by the D.C. Circuit.

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