On three separate occasions this year, the D.C. Board of Elections and Ethics has rejected referendum petitions on the issue of same-sex marriage, ruling that a ballot measure on the issue will not be allowed.
The board has consistently ruled that such a measure would violate the city’s Human Rights Act that prohibits discrimination based on sexual orientation.
On Thursday, the Court of Appeals affirmed that decision:
Appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative.
Opponents had wanted to challenge a law that took effect March 3, allowing same-sex couples to marry. They have made numerous attempts to get approval to put an initiative on the ballot asking D.C. voters to define marriage in the city as between one man and one woman.
The D.C. Council passed the historic legislation on December 15, 2009, to legalize same-sex marriage in the District of Columbia; the bill was signed by mayor Adrian Fenty just 3 days later.
Jackson’s efforts have been thwarted by two Superior Court judges and a D.C. appeals court. During the mandatory 30-day Congressional Review period, neither the U.S. House or Senate took up the issue, although two Republican lawmakers from Utah, Rep. Jason Chaffetz and Sen. Bob Bennett, introduced resolutions designed to force a ballot initiative. On March 1, the U.S. Supreme Court refused to put the law on hold.
In the dissent, Judge John R. Fisher wrote that “even if we assume that the people at large are more likely to discriminate against minorities than are their elected representatives, appellees forget that there are numerous checks and balances in place here to protect against the tyranny of the majority.”
He pointed out that an initiative could be defeated at the polls, it could be disapproved by Congress (under the “Home Rule” authority), or it could be amended or repealed by the D.C. council.
Jackson said that while he was disappointed in the appeals court decision, he was encouraged that the decision was split.