Monday, June 15, 2009

DC rejects referendum on recognition of same-sex marriages

The DC Board of Elections and Ethics ruled today that it will not allow a voter referendum reconsidering DC's stance on same-sex marriages.

Dcseal

As the Board's 12 page opinion (available as download here) explained, the referendum seeks to suspend section 3(b) of Act 18-0070, the “Jury and Marriage Amendment Act of 2009,” (“the Act”), which recognizes same-sex marriages validly entered into in another jurisdiction, until this provision has been presented to the registered qualified electors of the District of Columbia for their approval or rejection. 
The Board gives this history of the Act:

The Act’s originating bill, B18-0010 (“the Bill”) was introduced on Friday, January 02, 2009 by D.C. Council Chairman Vincent Gray at the request of Mayor Adrian Fenty.  An Amendment to the Bill, which included the language of section 3(b), was offered by Councilmember Phil Mendelson on April 7, 2009. The Council approved the Bill as amended on its first reading on that date. The Council approved the Bill again on its final reading on Tuesday, May 5, 2009 by a vote of 12-1. The Council transmitted the Bill to Mayor Fenty on Wednesday, May 6, 2009, and the Mayor signed the Bill on the same day.  The resulting Act was transmitted to the U.S. Congress on Monday, May 11, 2009, and is projected to become law on Monday, July 6, 2009.


The D.C. Board of Elections and Ethics explained that it may not accept a referendum measure under several circumstances, including if the "measure authorizes, or would have the effect of authorizing,
discrimination prohibited under Chapter 14 of Title 2" which contains the District of Columbia Human Rights Act, HRA, D.C. Official Code § 2-1401.01 et seq. (2006 Repl.).

The Board concluded that the

Referendum’s Proposers would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the Council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation. Because the Referendum would authorize discrimination prohibited by the HRA, it is not a proper subject for referendum, and may not be accepted by the Board.

Opinion at 11.

Thus, the DC Board of Elections and Ethics reaches a very different conclusion than the California Supreme Court in its ruling on the constitutionality of that state's Proposition 8, last discussed here, which was certified by the California Secretary of State.   The DC Board is not basing its rationale on constitutional principles; however, the Board's ruling does implicate the balance between equality principles and direct democracy in the form of a voter referendum.

RR

http://lawprofessors.typepad.com/conlaw/2009/06/dc-rejects-referendum-on-recognition-of-samesex-marriages.html

Elections and Voting, Family, Sexual Orientation, Sexuality | Permalink

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