On Tuesday, the Washington, D.C. Elections Board struck down a
referendum proposal on recognizing gay marriage in the district,
brought by a coalition of local pastors. The grounds for denying
the ballot petition: that a referendum vote on this issue
constitutes an act of prejudice, violating the district’s 1977
Human Rights Act.
Here’s a little taste of the idealism that you’ll find inside:
To secure an end in the District of Columbia to discrimination
for any reason other than individual merit, including, but
not limited to, discrimination by reason of race, color,
religion, national origin, sex, age, marital status, personal
appearance, sexual orientation, familial status, family
responsibilities, matriculation, political affiliation,
disability, source of income, and place of residence or
business.
I can understand the district’s fear of what venerable sources of
wisdom in governance John Stuart Mill, Alexis de Tocqueville, and
the Federalist’s Publius called “tyranny of the
majority” — when the rights and freedoms of a few are
steamrolled by the dictates of an unenlightened or oppressive
many. Given a not-so-distant past that saw a whole class of
people subjugated and mistreated merely on account of their race,
it’s not hard to at least comprehend the reasoning behind a
legislative check on this sort of behavior; a limit, in Mill’s
words, on “the tendency of society to impose, by other means than
civil penalties, its own ideas and practices as rules of conduct
on those who dissent from them; to fetter the development and, if
possible, prevent the formation of any individuality not in
harmony with its ways, and compel all characters to fashion
themselves upon the model of its own.”
But Mill, Tocqueville, and Publius, who cautioned just as
strongly against the “tyranny of the magistrate,” would be doing
barrel rolls in their graves if they caught a spectral wind of
these latest proceedings. The decision issued by the Board goes
on to explain not only its rationale, but its incredibly
political motives:
This legislative initiative is significant for several reasons.
First, it unequivocally declares that the District is a
jurisdiction that affords full faith and credit to valid same
sex marriages. Second, it is consistent with recent efforts by
the Council to eradicate impermissible discrimination on the
basis of same-sex discrimination by
putting same sex couples on a par with heterosexual couples in
numerous provisions of District law.
In other words, this decision is not about bypassing bigotry,
it’s about jumping the gun. Since 2008, DC has had on the books
an advanced domestic partnership law, which allows for what are
essentially civil unions for same-sex couples, complete with
nearly all the legal benefits and privileges awarded to
marriages. A bill that would limit marriage proper to one man and
one woman was introduced in Congress on May 22 of this year.
Legislatively speaking, it’s a fair fight, with strong voices on
both sides of the issue. And in most states, the scuffle has been
allowed to play out between courts, legislatures, and referenda,
and sometimes with surprising results, as with California’s Prop
8. So why does allowing the people to decide what makes a
marriage suddenly become anathema when the issue hits our
nation’s capital?
The Election Board’s vote may mean a political win, but not
without the creation of a political monster. As the Alliance
Defense Fund’s Brian Raum pointed out, the ruling essentially
invalidates the marriage statutes that have existed since the
district was formed. And the potential misapplications from here
on of the human rights law are legion—ballot initiatives on
anything from the age for buying tobacco to educational standards
for teachers could run afoul of broadly interpreted
discrimination standards.
And don’t even get me started on reversible
plaid bucket hats.
Meanwhile, marriage advocates have filed an appeal on the ruling
in DC Superior Court, asking for an expedited appeals process as
the clock ticks down to July 6, when a bill signed by the mayor
recognizing out-of-state marriages takes effect.
Something tells me that this match has a few rounds in it yet.
