Nancy Polikoff

In DC, We Don't Put Civil Rights Up for a Vote

Filed By Nancy Polikoff | June 16, 2009 3:30 PM | comments

Filed in: Marriage Equality, Politics

Maybe you know that DC is a colony. Congress can write our laws if it wants to. We have no voting representation in Congress. Our license plates say "Taxation Without Representation."

But we know that civil rights for the minority should never be put to the vote of the majority.

The United States Congress can change the laws of our nation's capital whenever it wants - and it has wanted to in the past - but with a Democratic Congress and President it is less likely now.

We also have what may be the most sweeping civil rights law in the country. It is currently unlawful to discriminate on the basis of: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, and place of residence or business of any individual. The original law passed in 1977. (Gender identity was added later, but sexual orientation was always there).

We do have a process for direct democracy through referendum, but there are some limitations. One is that no proposal that would "authorize discrimination" on a basis contained in our civil rights laws can be the subject of popular vote. This majority minority city, whose leaders in 1977 had been part of the civil rights movement, never wanted a majority to block basic civil rights.

This is why the efforts to put DC's recognition of same-sex marriages performed elsewhere to a popular vote has failed. Yesterday the DC Board of Elections and Ethics ruled that the subject was not proper for a referendum. Read the ruling here.

Two interesting comments on the ruling. The Board considered the fact that we have replaced the gendered words "husband" and "wife" in so many of our laws. Thank you DC Gay and Lesbian Activists Alliance and Bob Summersgill. And the Board disregarded a court ruling from 1995 that held that denial of access to marriage did not violate this very same civil rights law.

It reasoned that the decision was based on the conclusion that same-sex marriage didn't exist; marriage was definitionly between one man and one woman. Well, the Board said, it exists now - in several states and countries. So the definitional reasoning from 1995 no longer holds, and denying those married elsewhere of marriage recognition here would, in fact, discriminate against them on the basis of sexual orientation.

The issue will head to DC Superior Court, and from there to our Court of Appeals. Meanwhile, barring Congresssional action, our law will go into effect around the 7th of July.

Oh, and by the way, I agree with Councilmember Phil Mendelson who has said that it's already the law that such marriages must be recognized. Our new statute just makes it clear.

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Bob Summersgill | June 16, 2009 10:15 PM

Thanks for the mention Nancy. A couple of minor historical notes, the original Human Rights Act was passed in 1974. When our system of governemnt changed to allow elected Councilmembers, they re-passed the Human Rights Acts without amendment under authority of Home Rule.

Sexual Orientation was included in the original, as was "personal appearance" which was used immeadiately to protect cross-dressers going to gay bars. It was used successfully numerous times to protect transgender people, even before the word "transgender" was coined in 1986. The modern language "gender identity and expression" is stronger and broader, but the inclusion goes back to the earliest days.

And Nancy, thank you for all that you've done to get us here!