Judge: D.C. gay-marriage vote would violate Human Rights Act

Thirty-one states have held referendums on whether or not to ban gay marriage, but a Washington, D.C., judge ruled Thursday that such a vote would violate the District’s Human Rights Act.

The ruling upholds a decision by the city's board of elections, which has twice rejected plans by an anti-gay marriage group to hold a referendum on the subject. City council passed an ordinance in December that allowed gay marriage in the District.

Opponents of gay marriage say they will appeal the decision to the D.C. Court of Appeals. The decision fits a pattern of judicial activism, which has interfered with the people’s will to ban gay marriage, they say.

For gay-marriage advocates, however, the decision is a significant victory. In all 31 states where gay marriage has been put before voters in a referendum, it has lost. If the judge’s decision stands, it removes this hurdle for the District.

What's in a Human rights Act?

The question of whether voters can overturn gay-marriage laws is central to the federal trial underway in San Francisco. Two same-sex couples are challenging Proposition 8, a voter initiative that trumped the state Supreme Court's ruling that same-sex marriages were legal in the state. The trial, regardless of the final ruling, is expected to be appealed to the US Supreme Court.

Had gay-marriage opponents been able to hold a Prop. 8-style referendum in D.C., Washington would likely have followed the national trend and banned same-sex marriage, says Brian Brown, executive director of the National Organization for Marriage, an anti-gay marriage group.

Washington is a majority African-American city, and only 26 percent of blacks nationwide support legalized gay marriage, according to an August Pew Research Center survey.

Thursday's ruling centers on Washington's Human Rights Act. The law forbids discrimination on the basis of sexual orientation. But many states, including California, Maine, and Wisconsin, have had referendums banning same-sex marriage – despite the fact that they also have laws similar to Washington's.

Indeed, in the 1995 case, Dean v. the District of Columbia, the D.C. Court of Appeals decided that the city’s Human Rights Act did not protect same-sex marriages. “We cannot conclude that the council ever intended to change the ordinary meaning of the word 'marriage' simply by enacting the Human Rights Act," the court ruled.

The judge's decision

But in Thursday's ruling, Judge Judith Macaluso said the ground has shifted.

“Since 1995, the [Washington City Council] has changed the landscape Dean surveyed. Indeed, all of the statutory provisions upon which Dean relied have been repealed or amended...,” she wrote in her decision.

What's more, wrote Judge Macaluso, the city can prevent a referendum from going forward.

“The fact that the proposed initiative, if passed, would violate the Human Rights Act provides an independent basis for upholding the Board’s decision: the initiative runs afoul of an implied exclusion barring provisions that violates the state’s law,” she ruled.

Mr. Brown of the National Organization for Marriage says there is growing support in Congress to invalidate the council’s vote to allow same-sex marriage. But others doubt that enough Democrats will join the effort to overturn the District's gay marriage law.

Without action, the District could begin issuing same-sex marriage licenses in March.

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