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Supreme Court Refuses Appeal in D.C. Same-Sex Marriage Case

by Professor Will Huhn on January 18, 2011

in Civil Rights,Legislative process,Wilson Huhn

     Earlier today the Supreme Court turned down an appeal by persons seeking overturn the District of Columbia laws recognizing same-sex marriage.

     Here is the AP report of the Supreme Court's decision not to hear this case, as published at Yahoo News, and here is Gabriel Arana's take on Supreme Court's action at The American Prospect.

     And here is the decision of the D.C. Circuit Court of Appeals, which heard the case en banc on May 4 of last year and issued its ruling on July 15.  By a vote of 5-4, the Court of Appeals upheld same-sex marriage in the District of Columbia, but this case was not decided on constitutional grounds.  Instead, this case was principally about whether the citizens of the District of Columbia have the right under District laws to mount an initiative on this subject.

     What led to this litigation is that the Home Rule Council for the District of Columbia adopted a law recognizing same-sex marriage.  Bishop Harry Jackson and other citizens sought to bring an initiative pursuant to which the voters of the District could decide whether to repeal the new law.  The District of Columbia Board of Elections and Ethics ruled that the repeal measure could not appear on the ballot because the Council had previously adopted legislation providing that voter initiatives may not violate the District's Human Rights Act, a law that prohibits discrimination on the basis of sexual orientation.  Bishop Jackson and others filed this lawsuit against the Board of Elections contending that they had a legal right to bring this matter before the people for a popular vote on the question.

     In the course of its 53-page opinion, the majority of the Court of Appeals exhaustively reviews the Human Rights Act, the Home Rule Act, the Charter Amendment Act, the Initiative Procedures Act, the Jury and Marriage Amendment Act, and the Marriage Equality Act.  Each of these laws is briefly summarized below.

     The Human Rights Law was initially adopted by the pre-home rule D.C. Council in 1973 and approved by Congress.  According to the Court of Appeals, the Human Rights Law

declared that â[e]very individual shall have an equal opportunity to participate . . . in all aspects of life,â and it announced an intent âto secure an end . . . to discrimination for any reason other than that of individual merit, including, but not limited to discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.â

     After the District of Columbia was granted Home Rule, in 1977 the D.C. Council reenacted the Human Rights Law as the Human Rights Act.

     The Home Rule Act is a federal statute adopted by Congress in 1973 setting forth the Charter for the District of Columbia.  It contained no specific provision allowing voter initiatives, but instead vested power in the D.C. Council to adopt laws that would share the District's legislative power with the people.

     The Charter Amendment Act is a law adopted by the District Council in 1978 permitting ballot initiatives.  However, the CAA was not self-executing and would not go into effect until the D.C. Council adopted laws implementing it.

     The Initiative Procedures Act, adopted by the Council in 1979, sets for the procedures to be following for amending the Charter by means of ballot initiatives.  This law contains a provision prohibiting a charter amendment from appearing on the ballot if it 

authorizes, or would have the effect of authorizing, discrimination prohibited under [the Human Rights Act].

The Court of Appeals refers to this provision of the Initiative Procedures Act as the "Human Rights Act safeguard."  

     The Jury and Marriage Amendment Act (JAMA) and the Marriage Equality Act became effective in 2009 and 2010 respectively.  These two laws, adopted by the District Council and not dissapproved by Congress, recognize the validity of same-sex marriages performed in other states and authorize same-sex marriage in the District of Columbia.

     Bishop Jackson and others proposed a ballot initiative that, if adopted, would have repealed JAMA and the Marriage Equality Act.  The District's Board of Elections and Ethics rejected the proposed initiative on the ground that the measure constituted an attempt to authorize discrimination that is prohibited under the Human Rights Act in violation of the Human Rights Act safeguard contained in the Initiative Procedures Act.  The trial court ruled in favor of the District of Columbia and against Bishop Jackson, and the Court of Appeals affirmed.

     The majority of the Court of Appeals upheld the "Human Rights safeguard" in the Initiative Procedures Act.  The four dissenting judges would have found that the "Human Rights Act safeguard" of the Initiative Procedure Act was not a valid limitation on the right of initiative – that the D.C. Council was not authorized by the Home Rule Act or the Charter Amendment Act to place "subject matter" restrictions such as the Human Rights Act safeguard on the initiative process.

     However, all nine justices on the Court of Appeals agreed that the proposed ballot initiative would have permitted discrimination on the basis of sexual orientation, and that such discrimination is prohibited by the District's Human Rights Act.  The dissenters said:

This court must decide … whether the IPAâs âHuman Rights Act limitationâ is a valid restriction on the right of initiative. For the reasons which follow, we would hold that it is not.

Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative. In light of the majorityâs holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majorityâs conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002.

     Again, this case was not decided on constitutional grounds, but rather upon an interpretation of the statutory limitations on the intiative process in the District of Columbia.  Nevertheless, the final portion of the majority opinion (beginning on page 45) finding that repealing the Marriage Equality Act would constitute discrimination on the basis of sexual orientation and the concurrence of all of the the dissenting judges on this point represents a significant victory for the gay rights movement – a victory that is secured by the decision of the Supreme Court not to review the case.


Dan S. January 18, 2011 at 7:51 pm

How does this stand up against DOMA? From DOMA(1996)…`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'. From the Professor's post: "The Jury and Marriage Amendment Act (JAMA) and the Marriage Equality Act became effective in 2009 and 2010 respectively. These two laws, adopted by the District Council and not dissapproved by Congress, recognize the validity of same-sex marriages performed in other states and authorize same-sex marriage in the District of Columbia."

It seems to me that on one hand Congress disapproves same sex marriage, but on the other, allows it in D.C.

Quidpro January 18, 2011 at 9:52 pm

Interesting procedural posture for the case. The question is whether the citizens of DC have the right to amend the Human Rights Law so that upholding traditional marriage no longer constitutes discrimnation. If not, then what the Professor deems as a "victory for the gay rights movement" will be a defeat for democracy.

Chris January 19, 2011 at 3:14 pm

It's "the D.C. Council" or "the Council of the District of Columbia," not "the Home Rule Council."

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