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Superior Court Rejects Marriage Referendum in D.C.

By Hope Hodge on 6.30.09 @ 5:00PM

The fight for a referendum on recognizing same-sex marriage in D.C. likely came to an end today.

After a ballot petition from traditional marriage advocacy coalition Stand4MarriageDC was rejected by the district Board of Elections on June 16, the group filed an appeal in Superior Court, hoping to preempt a measure passed through the D.C. City Council that would recognize same-sex marriages performed outside the district. I have a piece about the leaders of Stand4MarriageDC and the ballot initiative up on the main site today.

Superior Court Judge Judith Retchin handed down a court order (pdf) earlier today, reaffirming the Council's finding that a referendum on marriage violates D.C.'s 1977 Human Rights Act (pdf) and dismissing the appellants' contention that an earlier case already proved that a vote on marriage was not a human rights violation.

In 1995, the D.C. Court of Appeals ruled in Dean v. District of Columbia that gay couples could not find legal provision for same-sex marriage within the DCHRA, and reaffirmed the districts 1901 marriage statutes, saying they clearly did not intend for marriage to be extended to same-sex couples.

But that finding is no longer valid, Judge Retchin decided, because "Dean involved a different factual scenario and presented a different legal question" and "seven of the eight gender-specific provisions in the marriage statute cited by Dean have been amended to make them gender-neutral." Also, the language of the DCHRA has been changed since 1995 to prevent discrimination based on an individual's "actual or perceived" membership in a protected class, further confusing the issue.

Perhaps most strangely, the ruling makes a distinction between 1995 and now because same-sex marriage actually exists in states and countries worldwide today, but was "a factual impossibility" 15 years ago and thus could not be approved in court. Judge Retchin does not, however, mention Goodridge v. Department of Public Health, 2003 the Massachusetts Supreme Court case that effectively created same-sex marriage in that state, although it had not factually existed in the U.S. prior to the ruling.

The Alliance Defense Fund, who has legally represented Stand4Marriage, released the following statement in response to the ruling: 

"We are disappointed with the court’s ruling but will proceed immediately with an initiative which will preserve marriage between one man and one woman in D.C.  District residents today find themselves disenfranchised, unable to vote on an important public policy matter because political elites would rather serve a radical agenda than the people they represent," said Brian Raum, ADF Senior Legal Counsel.

"Marriage redefinition activists will advance their agenda by any means necessary, even if that means snuffing out fundamental rights like the right to vote.  ADF will continue to defend the right of District residents to exercise their right to vote, because their elected representatives and this court have refused to do so."

The Massachusetts Goodridge decision also noted that "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State." Perhaps D.C. marriages should make room for two partners, the approving state, and the state's alternate personalities?