Judge dismisses effort to block D.C. marriage law

Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, Md., promises to fight the judge's ruling.

Courtesy of Washington Blade

A D.C. judge issued a crippling blow Tuesday to supporters of a referendum to overturn the city’s same-sex marriage recognition law by denying a request for a court injunction to put the law on hold and allow more time to coordinate the referendum.


Superior Court Judge Judith Retchin, in a 15-page decision, also upheld a ruling by the D.C. Board of Elections & Ethics that determined a referendum aimed at barring the city from recognizing same-sex marriages from other jurisdictions would violate a provision of the city’s human rights law that bans discrimination based on sexual orientation.


“At bottom, the harm about which petitioners complain is not based on a denial of the right to referendum,” Retchin says in her decision. “Rather, they simply disagree with legislation enacted by our duly-elected [D.C. City] Council. A citizen’s disagreement with constitutionally sound legislation, whether based on political, religious or moral views, does not rise to the level of an actionable harm.”


The judge added that “because the court finds the [Board of Elections & Ethics] correctly concluded that the proposed referendum would violate the District of Columbia Human Rights Act, and because petitioners have failed to establish the necessary prerequisites for staying the legislation, the Court denies petitioners’ requests for relief.”


The decision represents a victory for gay activists, who strongly opposed a referendum on the marriage issue. It also was a setback for Bishop Harry Jackson Jr., pastor of Hope Christian Church in Beltsville, Md., who emerged as the leader of efforts to bar same-sex marriage in the District.


Jackson had said he and his supporters would continue efforts to prevent the city from recognizing same-sex marriage if his side lost their court fight on the referendum.


Following an event Wednesday at the National Press Building, Jackson told the Blade he had not yet learned of the court decision, but he noted that he’d contest a ruling against referendum supporters.


“We will definitely fight it — if that’s the case — yes,” he said.


In her decision, Retchin says Jackson and six others who filed suit against the election board to force the city to hold the referendum wrongly claimed that a 1995 D.C. Court of Appeals decision known as Dean v. District of Columbia held that the Human Rights Act does not apply to marriage related issues, especially same-sex marriage.


Retchin says in her decision that the election board and D.C. Attorney General Peter Nickles, who defended the election board on behalf of the city, correctly wrote in court briefs that the Dean decision could no longer be applied to marriage.


An election board attorney and Nickles argued in their briefs that the D.C. City Council had changed the marriage law several times since the Dean decision to make all but one of its provisions gender neutral.


The briefs by the election board and Nickles also argued that the city law recognizing same-sex marriages from other jurisdictions — the Jury & Marriage Amendment Act of 2009 — changed the last remaining obstacle in the city’s marriage law to clear the way for recognition of same-sex marriages from other states or countries.


“With that interpretive framework controlling here, the court finds that Dean does not support petitioners’ position because Dean involved a different factual scenario and presented a different legal question than is before the court,” Retchin says in her decision.


Jackson and his supporters also argued in their court briefs that a court injunction was needed to suspend a July 6 deadline for completing all requirements for placing a referendum on the ballot, including the required petition signatures of about 21,000 registered voters in the city.


Jackson’s attorneys argued in court papers that the city law governing referenda was unfair because it doesn’t allow enough time for citizens to prepare a referendum. The law, which the D.C. Council passed and Congress approved in the late 1970s, requires petition signatures and other referendum requirements to be met between the time the mayor signs a city law passed by the Council and the completion of Congress’s review of the law, which takes 30 legislative days.


In the case of the same-sex marriage recognition law, city officials and members of Congress expect the congressional review to be completed on July 6. With no opposition to the law having surfaced, election board official Kenneth McGhie has said the law would take effect July 7.


Retchin said in her decision that referendum backers were entitled to and received the opportunity given them by law to apply for a referendum through a specific process specified under the law.


“They are not entitled to a favorable ruling on whether their proposed referendum meets the legal requirements of the law,” she said.