City Desk

D.C. Gay Marriage Referendum Supporters Petition Court

Gay-marriage referendum backers have asked a Superior Court judge this morning to order the city elections board to allow a ballot measure.

The move comes two days after the Board of Elections and Ethics ruled that such a referendum, to overturn a recently passed District law recognizing out-of-state gay marriages, would violate the D.C. Human Right Act and thus would be ineligible to appear on the ballot.

The petition [PDF], filed by Bishop Harry Jackson and six other backers, says the BOEE decision "is erroneous because the determination directly contradicts the D.C. Court of Appeals' decision in Dean...holding that the current D.C. law limiting marriage to opposite-sex couples does not violate the DC-HRA."

The petition, while it spends a great deal of space on the legislative process that led to the law, in the end relies heavily on the Dean v. District case, decided in 1995 by the D.C. Court of Appeals. Here's the meat of their argument:

The Board's denial of the Referendum directly contradicts Dean. The Court of Appeals in Dean conclusively determined that the refusal to afford same-sex couples the status of "marriage" does not run afoul of the DC-HRA. It is true that the Jury and Marriage Act of 2009, at issue here, purports to addresses only the recognition of same-sex "marriages" from other jurisdictions, rather than, as in Dean, authorizing same-sex "marriages" in D.C. in the first instance. But that is a distinction without a difference. It is illogical to say that, under Dean, limiting the status of "marriage" in D.C. to opposite-sex couples in the first instance is consistent with the DC-HRA, but that denying the very same status to same-sex unions deemed "marriages" in other jurisdictions is not. Either way the issue is the same: whether refusing to afford same-sex couples the status of "marriage" contravenes the DC-HRA. Dean clearly holds it does not.

Note the scare quotes around "same-sex 'marriage.'"

The lawyers for the referendum proponents—Steven H. Aden, Austin R. Nimocks, and Brian W. Raum—are all affiliated with the Alliance Defense Fund, a Christian conservative legal advocacy group founded in 1994 by a group of politically active evangelicals (including Focus of the Family's James Dobson). Aden is based in D.C., while Raum (who testified at a BOEE hearing) and Nimocks are from Scottsdale, Ariz. (As an aside: It's clear that these guys are new to the local scene: They issued a summons to "Robert J. Spagnoletti, Corporation Counsel of D.C." Spagnoletti hasn't been in government since 2006, and the corp counsel was renamed the attorney general in 2004.)

The case has been assigned to Judge Judith Retchin, with an initial conference scheduled for September. But the petitioners have asked for expedited review, since the law is scheduled to exit congressional review and go into effect on July 6—putting it out of the reach of referendum. They have also asked for "other declaratory relief and permanent and temporary injunctive relief as may be necessary to ensure that the Referendum is accepted by the Board and that the referendum process moves forward." It is unclear whether a judge has the power to "stop the clock" on congressional review while the issue is being decided.

Retchin, on the bench since 1992, is a former assistant U.S. attorney who been known in her judicial career for her tough sentencing in criminal matters—most infamously for ordering the incarceration of paraplegic Jonathan Magbie for marijuana possession. Magbie later died after being sent to D.C. Jail; Retchin took tough criticism from the Washington Post's Colbert I. King and others for not checking if the jail was medically equipped to handle Magbie.

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  • JohnD

    I love how the proponents of the referendum keep going back to the Dean decision, which was based on the laws in DC in the early 1990s. Don't they realize that the laws since then have changed and that all gender references in the marriage laws that Dean was based on have been changed to be gender neutral?

    I also find it interesting that they are using the courts (or to use their language "activist judges") to try to overturn a law passed 11-1 by the legislature of the District of Columbia. Isn't that what they always complain that the "left" does? Should this action go against their principles? I guess principle goes out the window when it is convenient.

  • DCBob

    Dean is based on a number of sections of the D.C. Code, all of which were systematically changed over the past 10 years. This day was expected and planned for. For a nice list of how the law has been changed to invalidate Dean, read Brian Flower's testimony to the BOEE

  • SC Guy

    I sure hope that the court does the right thing and allows democracy to prevail. Clearly there is no consensus on the issue, so the people need to referee the decision.

  • Mike DeBonis

    Uh, a 12-1 vote of a duly elected legislature seems darned close to consensus...

  • Q

    Now Now LL, just because we have a Democratic Republic with representatives voting 12-1 doesn't mean there is a consensus of the populace. LOL! Legally this issue is done as this Judge will not want to make a name for herself by issuing an injunction of a Congressional Review. However, strategically, the issue of same-sex marriage is far from over.

    Once again, it is amazing the priority and clearing of legislative and now judicial calendars that this issue has generated. I wish DCHRVA, statehood or even the 2nd Amendment issue got this swift justice.

    LL, if Jackson & Company fail, what's next -- the Appellate Court? Will Sotomayor (if she is confirmed) eventually get to hear this?

  • Mike DeBonis

    If Retchin declines to intervene, the referendum proponents would likely go to the D.C. Court of Appeals. This is where the final word on whether Dean v. District (a) applies to this case and/or (b) stands as good law will have to come from---this is the court that ruled on Dean in 1995.

    In case you're wondering: LL looked up the DCCA makeup yesterday: Only two of nine active judges were seated in 1995, when Dean was decided. (Neither of those two participated in the Dean panel.) Of the nine sitting DCCA judges, four are Clinton appointees and five are Bush appointees.

    Would SCOTUS hear the case? Almost certainly not. The issues at work here involve an interpretation of District statute---the Human Rights Act of 1977. No constitutional questions or questions of federal law are at play.

  • KCinDC

    Q, what clearing of legislative calendars are you talking about? The marriage recognition bill was not controversial within the council, so they spent very little time on it and had no hearings. The other issues you mention (with the possible exception of your vague reference to the 2nd Amendment) are congressional issues the council can't do much about, yet they still had hearings about them.

    I don't see see how avoiding spending the small amount of legislative or judicial time being spent on marriage equality would have somehow allowed for more progress on voting rights, statehood, or whatever it is you want to happen related to the 2nd Amendment.

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  • sigmund freud

    This clownish lawyer representing the 6 clowns sends a summons to Robert Spagnoletti , Corporation Counsel -- get with the program -- it is Peter Nickles and it is now called Attorney General.

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