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DC appeals court rules against same-sex marriage vote

The District of Columbia Court of Appeals [official website] on Thursday ruled [opinion, PDF] 5-4 that the DC Charter was not violated when city officials refused to allow a ballot initiative on same-sex marriage [JURIST news archive]. The court, affirming a ruling [JURIST report] of the Superior Court of the District of Columbia [official website], found that DC's Human Rights Act (HRA) did not violate the DC Charter [texts] right to public referendum when it disallowed referendums on laws that would be discriminatory under the HRA. The appellants argued that the Charter, which acts as the district's constitution, allows public referendums on all legislative issues excepting appropriations and so the HRA exemption is invalid. Alternatively, they argued that a public referendum to bar the city from recognizing same-sex marriage would not be discriminatory. The court rejected both arguments, finding that the proposed ban would be discriminatory under the HRA due to its express prohibition on discrimination based on sexual orientation. The court also found that the ability of the Council of the District of Columbia [official website] to regulate what could be put to a vote under the Charter was ambiguous, requiring deference to the Council. Additionally, the court held, the Council could not have intended to allow issues of discrimination to go to a referendum because it approved both the HRA and the referendum amendment in the same legislative session. The dissenting judges agreed with the appellants, finding that the Council exceeded its authority under the Charter by seeking to restrict the right to referendum. In reacting to the decision, Human Rights Campaign (HRC) [advocacy website] stated that it represented a "significant victory for justice, the rule of law and the protection of all D.C. residents against discrimination" and that individual civil rights should not be subject to referendums [press release].

In May, the court heard arguments [JURIST report] after the Superior Court denied Reverend Harry Jackson's request to allow a vote on a measure defining marriage as between a man and a woman. The case was heard en banc by all nine judges of the appeals court, instead of the three-judge panels that usually hear cases. The ruling affirmed a November decision by the District of Columbia Board of Elections and Ethics [official website], which held that putting the act to a public vote would violate the HRA. DC began recognizing same-sex marriages in March after the US Supreme Court [official website; JURIST news archive] denied an emergency appeal to block the law from taking effect, joining Massachusetts, Connecticut, Iowa, Vermont and New Hampshire [JURIST reports] in recognizing same-sex marriage.

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