DC Superior Court Judge Judith Retchin cleared the path for the DC law recognizing same-sex marriages from other jurisdictions. It is now likely to take effect next week. The 15 page opinion rejects every ground put forward by Reverend Harry Jackson and others, who asked the judge to allow a referendum on the law to go forward and that, pending the referendum, the law be prevented from going into effect.
The court agreed with the DC Board of Elections and Ethics that the proposed referendum on the law was an improper subject for referendum. In DC, we don't put civil rights up for a vote. The DC BOEE ruled earlier this month that the referendum could not go forward because it would strip couples married elsewhere of the rights and responsibilities of marriage on the basis of their sexual orientation, a protected category under the DC Human Rights Act.
The court agreed that a 1995 case upholding DC's ban on same-sex marriage as not violating the DC HRA did not support the petitioners' case. Rather, the opinion says, the changes in the DC Code to substitute gender-specific words (e.g., husband, wife) with gender-neutral ones (e.g.,spouse), and the fact that same-sex marriage exists now in many states and countries (it existed nowhere in 1995), has changed the facts and the law enough to warrant a different conclusion.
The petitioners also argued that because of DC's Domestic Partner law, denying marriage to same-sex couples would not violate the DC HRA because the "benefits" and "services" referred to in the Human Rights Act extend to domestic partners. The judge said there were differences between DP status and marriage (although the opinion cites an outdated report on the subject and therefore overstates the differences). But most importantly, and this is my favorite part of the opinion, the court says:
"Even if unmarried same-sex couples could receive the same benefits as married couples, courts have long held that different treatment can equate to discrimination whether or not the material benefits and services offered appear uniform."
The judge's citation to an example of that principle is to an allegation of equality in a school desegregation case.
Opponents of marriage recognition in DC can try to get a voter initiative on the ballot. They will likely lose again, since a law that authorizes discrimination under the DC Human RIghts Act cannot be subject to an initiative in DC either. Congress can always mess with DC law, however, so we expect efforts to gut the law when the DC Appropriations Bill comes up for a vote later this summer.
Did I mention that DC is not a state and has no voting representation in Congress? Shocking but true. We in DC need each of you who actually has a Representative and two Senators to watch out for this issue if it comes up. Count on DC's Gay and Lesbian Activists Alliance and its blog for up-to-date news.