The archdiocese's issue seems to come down to two issues: adoptions to same-sex couples (which are already legal, as it happens), and mandated employee benefits for same-sex spouses of archdiocese employees.

As WaPo's Tim Craig reports, neither of the bill main sponsors, Phil Mendelson or David Catania, are budging on the issue. Said Mendo: "The way this issue has been approached by the archdiocese in the past week was tantamount to drawing a line in the sand and it may be hard for them to show some flexibility." Catania went on to ask how the archdiocese could give employee benefits to "fornicators and adulterers" but not gay couples.

LL's quick thought: Isn't this yet another argument for abandoning the already problematic employer-based health insurance model? Why should the institutional policies of an employer, subject to religious/moral/political dealings, affect the well-being of employees and their families?

Discuss.

At-Large Councilmember David Catania today posted a letter to Robin Fretwell Wilson, law professor at Washington & Lee University, who has made it her job, as of late, to join the public debate in jurisdictions considering same-sex marriage, stumping for broad exemptions to discrimination laws for those who have religious objections to the practice.

Recently, she testified at a D.C. Council hearing on gay marriage and also wrote a Washington Post op-ed advocating for stronger protections against religious discrimination. In her council testimony, Wilson cited a flurry of federal case law to support her positions. Catania proceeded to actually look up the cases. If you come at Catania, you best come correct. Wilson, it seems, did not.

You can read the letter in full [PDF]. In fact, please do. Text is also pasted after the jump.

Here's some key lines:

---'In order to justify your position - that public employees should be exempted from the District of Columbia's Human Rights Act when it conflicts with their deeply held religious beliefs -you inappropriately misconstrued the holdings of these cases.'

---'Your misunderstanding apparently led you to claim that "circuit after federal circuit" has found that Title VII requires that police departments allow police officers to refuse to guard places that violate their religious beliefs such as abortion clinics and casinos. You even told Councilmember Jim Graham that this result "may be absurd, but it is the law under Title VII." Professor Wilson, this is clearly not the law in the Seventh Circuit, the only circuit on which your testimony at the hearing relied. Furthermore, the Supreme Court has made clear that the "undue burden" test you cite is a "de minimus" standard. I find it outrageous that you would claim otherwise.'

---'I am disturbed that you may use your misunderstanding of these cases in future testimony before legislative bodies. I am respectfully asking that you cease these misrepresentations in order to allow an honest discussion of the merits of present and future legislation.'

Catania goes on to question Wilson's political motivations, given the funding and affiliation of some of the groups she's associated with. "I am further concerned that your misrepresentations may not have been accidental or inadvertent," he writes. "Rather, your purported legal analysis and ethical judgment appear to be clouded by your political agenda."

His closing: "I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. The democratic process depends upon an honest dialogue and open disclosure. As a professor of law, you should know better."

Catania copied the letter to the president and law dean of Washington & Lee, as well as bar discipline authorities in Texas, where Wilson is licensed.

Wilson tells the Post's Tim Craig that she thought the letter was "kind of nasty." (Professor, meet David Catania.) And her defense as to the merits of the letter? "They talked to me 45 minutes, it's possible I misstated something."

The letter in full (optical-scanned, so might contain some typos):

COUNCIL OF THE DISTRICT OF COLUMBIA
THE JOHN A. WILSON BUILDING
1350 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20004

DAVID A. CATANIA
Council member, At - Large
Chair, Committee on Health

November 12, 2009

Professor Robin F. Wilson
Washington & Lee University School of Law
486 Sydney Lewis Hall
Lexington, VA 24450

Dear Professor Wilson:

I am writing to express my concern about mischaracterizations and misstatements you made during your testimony before the Council of the District of Columbia (Council) on November 2, 2009. You addressed religious accommodations under Title VII of the Civil Rights Act of 19641 as they relate to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. In your testimony before the Council, you discussed two cases: Rodriguez v. City of Chicago (Rodriguez).2 a case dealing with a police officer who refused to guard an abortion clinic, and Endres v. Indiana State Police (Endres),3 a case dealing with a police officer who refused to protect a casino. In order to justify your position - that public employees should be exempted from the District of Columbia's Human Rights Act when it conflicts with their deeply held religious beliefs -you inappropriately misconstrued the holdings of these cases.

Although you made several misstatements, what is most shocking to me was your blatant mischaracterization of Endres. At the hearing you stated that, "police officers and firefighters under Title VII have been exempted from two things, in specific cases, one is standing guard at casinos against their conscience. In one case called Endres. the person was actually a Baptist and I guess didn't like gambling."4 In fact, the court in Endres reached the exact opposite conclusion.

The United States Court of Appeals for the Seventh Circuit (Seventh Circuit) held that police officers and firefighters "cannot choose which crimes they will investigate andwhich potential victims they will protect." The plaintiff refused to work at a casino because of his sincerely held religious beliefs. The court upheld the city's decision to fire the officer.7 The court stated, in pertinent part:

Law-enforcement agencies need the cooperation of all members. Even if it proves possible to swap assignments on one occasion, another may arise when personnel are not available to cover for selective objectors, or when . . . seniority systems or limits on overtime curtail the options for shuffling personnel. Beyond all this is the need to hold police officers to their promise to enforce the law without favoritism—as judges take an oath to enforce all laws, without regard to their (or the litigants') social, political, or religious beliefs. Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.8

The court then noted:

The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty—that Jewish policeman protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policeman protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases. . . . And, we add, Baptist policemen protect gamblers from theft and fraud (and casino operators from sticky-fingered gamblers and employees with falsified credentials).

I am also troubled by your incorrect application of Rodriguez. In that case a police officer, Angelo Rodriguez, alleged that the City of Chicago discriminated against him by refusing to exempt him from an assignment to stand guard outside an abortion clinic. You indicated that the court upheld Rodriguez's ability to exempt himself from clinic duty,10 when in fact the court specifically rejected Rodriguez's claim of discrimination under Title VII, The court did not find that a police officer can refuse to guard an abortion clinic if it violates their deeply held religious belief. Indeed, the Seventh Circuit held that the pre-existence of a transfer option under the employee's collective bargaining agreement permitted the employee to transfer to another police district without an abortion clinic.12 Thus, the court never addressed the issues of "reasonable accommodation" and "undue burden" in the manner in which you represented. And it is inexcusable that you failed to mention that the discussions of these issues in Rodriguez are not reflective of the current state of the law in light of the Seventh Circuit's holding in Endres. which is discussed above.13

Your misunderstanding apparently led you to claim that "circuit after federal circuit" has found that Title VII requires that police departments allow police officers to refuse to guard places that violate their religious beliefs such as abortion clinics and casinos. You even told Councilmember Jim Graham that this result "may be absurd, but it is the law under Title VII."15 Professor Wilson, this is clearly not the law in the Seventh Circuit, the only circuit on which your testimony at the hearing relied. Furthermore, the Supreme Court has made clear that the "undue burden" test you cite is a "de minimus" standard.16 I find it outrageous that you would claim otherwise.

Your Curriculum Vitae states that you have previously participated in the legislative process regarding marriage equality in both New Hampshire and Connecticut. I am disturbed that you may use your misunderstanding of these cases in future testimony before legislative bodies. I am respectfully asking that you cease these misrepresentations in order to allow an honest discussion of the merits of present and future legislation.

I am further concerned that your misrepresentations may not have been accidental or inadvertent. Rather, your purported legal analysis and ethical judgment appear to be clouded by your political agenda. You are a member of the Virginia Marriage Commission, an organ of the Family Foundation of Virginia. The Family Foundation's stated goal is to promote the ideal that marriage "is the union between one man and one woman, [and] is an institution of God and a foundation of civil society."19 One of your colleagues at the Foundation is Maggie Gallagher, one of this country's most virulent opponents of marriage equality.20 The Foundation's partners include other well known right-wing organizations including the Family Research Council, Focus on the Family, and the Alliance Defense Fund. In addition to opposing marriage equality, the Foundation opposes embryonic stem cell research, opposes the use of emergency contraceptives, and promotes the defending of Planned Parenthood. Your failure to disclose your involvement with this organization, combined with your blatant misrepresentations before the Council, leads me to question the independence of your analysis.

In closing, I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. The democratic process depends upon an honest dialogue and open disclosure. As a professor of law, you should know better.

Sincerely,

David A. Catania
Councilmember, At-Large
Chair, Committee on Health

cc: Kenneth P. Ruscio, President, Washington & Lee University
Rodney A. Smolla, Dean, Washington & Lee University School of Law
Chief Disciplinary Counsel, State Bar of Texas

1 Pub. L. No. 88-352, 78 Stat. 241 (codified at 42 U.S.C. § 2000e (2006)).
2 Rodriguez v. City of Chicago (Rodriguez). 156F.3d771 (7th Cir. 1999).
3 Endres v. Ind. State Police (Endres), 349 F.3d 922 (7th Cir. 2003).
4 Hearing on Religious Freedom and Civil Marriage Equality Amendment Act of 2009 on Nov. 2, 2009 [hereinafter Hearing] at 7:14.
5 Endres. 349 F.3d at 925.
6 Id. at 924.
7 Id at 927.
8 Id at 927 (emphasis added).
9 Id. (quoting Rodriguez. 156 F.3d at 779 (Posner, C.J., concurring)).
10 Hearing at 6:56.
11 Rodriguez. 156 F.3d at 778.
12 Id. In fact, the court in Endres stated that even the offer to transfer to another precinct was not required, holding that, "Certainly nothing in Ryan or Rodriguez implies that there must be such an offer...Here, where no accommodation was attempted, we must decide whether the statute requires one, and we hold that it does not." Endres, 349 F.3d at 926 (emphasis in original).
13 This year, the Seventh Circuit further extended the rule articulated in Endres in 2003, stating that even in private employment with no public safety implications, "Title VII does not require employers to deny shift preferences of some employees in order to favor the religious needs of others." Kevin Adams v. Retail Ventures. Inc.. 2009 U.S. App. LEXIS 9222, **6 (7th Cir. 2009). UI(L
15 Hearing at 7:15.
1642 U.S.C. § 2000e(j) (2006); Trans World Airlines. Inc. v. Hardison. 432 U.S. 63, 84 (1977) (emphasis
added): see Ansonia Bd. of Educ. v. Philbrook. 479 U.S. 60, 67 (1986): see also 29 C.F.R. § 1605.2(e)
(2009).
17 Curriculum Vitae of Professor Robin F. Wilson at 19, available at
http://law.wlu.edu/faculty/links/wilsonrfcv.pdf.
18 Family Foundation of Virginia, Information Alert: Seek Solutions to Divorce, available at
http://www.famiiy foundation.org/alert%207_ 12_07.htm.
19 Family Foundation of Virginia, Virginia Policy Issues, available at
http://www.familyfoundation.org/issues.html.
20 Family Foundation of Virginia, Information Alert: Seek Solutions to Divorce, available at http://www.familyfoundation.org/alert%207 12_07.htm.

Of all the romantic locales in the world, or in the District of Columbia even, the John A. Wilson Building does not approach the top of LL's personal list.

But it was good enough today for D.C. residents Andrew Hertzberg and Andy Rollman.

During this morning's D.C. Council hearing on the same-sex marriage bill, Hertzberg, 49, proposed to Rollman while before the dais at the close of his testimony. Rollman accepted.

Why pick the council chamber? Says Hertzberg: "This is such important legislation and such an important forum."

Rollman, 47, says the proposal didn't come as a complete surprise. "He told me he was going to do something as a surprise at the end," he says. "I was hoping this was it."

"Someone is missing." Anyone else think the latest Leonardo DiCaprio vehicle, Shutter Island, has the worst tagline ever?

A senior at George Washington University was reported missing last weekend—prompting a Facebook group, a front-page GW Hatchet article, and a citywide police search. The girl who reported his absence said: “I could possibly see him [skipping their event] and sleeping in—but I couldn’t see him not texting me and apologizing.” The student turned up safe and sound Monday morning, having gone with another girl to Virginia. Draw your own conclusions.

On Monday, the National Capital Planning Commission approved a new security plan for the Martin Luther King Jr. Memorial - so construction can now begin. According to the Associated Press, the memorial—which consists of an island and two elm trees—will have fewer metal posts than initially proposed. Expect to see the memorial (missing security posts) in 2011.

Help the Metropolitan Police find a missing 12-year-old. She was last seen at the Minnesota Avenue Metro Station on Friday.

Central Intelligence Agency funds missing? Say, maybe for the last eight years? Try checking the pockets of the Afghan president’s brother, Ahmed Wali Karzai. Or just ask the opium dealers.

The D.C. Council started its same-sex marriage hearings on Monday—and the committee taking up David A. Catania's legislation is most definitely not missing testifiers. It already was scheduled to hear from 100 people, and 150 more will have their say on Nov. 2.

As part of a future exhibit at Nevin Kelly Gallery, local artists ask: "What's important to you?" Everyone gets just 10 words to answer. How about "Missing students, Leo, and people who don't care about gay marriage"? Whoops, that's 11.

Georgetown University has just released the schedule of community meetings to discuss its  10-year campus plan. In other words, if you are interested in neighborhood zoning issues, best pencil them in. If you are still annoyed about loud, drunken kids eating pizza—bummer. They are still there.

Photo by Doug, Creative Commons Attribution License

In testimony before the D.C. Council today, Bishop Harry Jackson namechecked Martin Luther King and his "Letter from a Birmingham Jail" in talking about his opposition to gay marriage. Jackson quoted King: "A law is unjust if it is inflicted on a people, that, as a result of being denied the right to vote, have no part in enacting or devising the law."

That, of course, was a reference to Jackson's quest to have a citywide vote on gay marriage. He said, "I believe the people of the District of Columbia have suffered an injustice by being ignored already, and you're about to do that again....There is an advisory referendum that you could endorse---why don't you do it?"

At-Large Councilmember David A. Catania, author and lead introducer of the bill, was ready to pounce.

"I want to thank you for bringing our history to this chamber, the history of voting rights in the city," he began. "Bishop, are you aware of the last time an 'advisory referendum' was placed on the ballot in the District that attempted to diminish the rights of a minority?"

Jackson said he was not.

Catania went on to fill him in on the events of Dec. 21, 1865, after then Mayor Richard Wallach 'fearing what the radical Republicans wanted to do in Congress, which is extend the vote to freed African-American males in the city,' held a vote on that issue. It lost, 712 to 1 in Georgetown, then independent, and 6,591 to 35 in the remainder of the city.

Concluded Catania, "There is an opportunity, from time to time, to have tyranny at a ballot box that would take away the rights of some because a majority thinks differently."

And then the coup de grâce: Catania asked Jackson how many times he'd voted in city elections in the past decade.

Jackson, who recently moved from the Maryland suburbs, said none: "I am recent resident of the District of Columbia."

Later in the hearing, another historical analogue came up: the pre-Civil War "Bleeding Kansas" struggle over whether that state would be admitted slave or free.

That conflict, Catania pointed out, was exacerbated by meddling interlopers from neighboring Missouri.

Photo by Darrow Montgomery

Ward 5 Councilmember Harry Thomas Jr. was a guest on NewsChannel 8's NewsTalk program this afternoon, and the gay marriage bill expected to pass through the council later this year was on the agenda. While he did not make a pledge on camera, anchor Bruce DePuyt reports that in a conversation afterward, Thomas told him that he will indeed vote for the bill, "despite grief he will get from some constituents, clergy in his ward."

The promise comes after months of sometimes agonizing fence-straddling on Thomas' part. With Thomas on board, only the two east-of-the-river ward councilmembers---Yvette Alexander and Marion Barry---have declined to come out for the bill.

Happy Hump-Day! I can see you slumping over and sleeping at your desk, so I’ve helpfully ended each news-blip with a BOOM, in honor of the Black Eyed Peas, Brett from FOTC, and the DC Metro transit system. Stay awake! Boom!

For those metro riders who have finally managed to assuage their fears of track-jumpers and crashed cars—stop reading. Prince of Petworth reports that there was more trouble on the red line yesterday. One witness said his car had “a series of explosions, with little fire and sparks everywhere.” Another mentioned a “loud BOOM!” and a decent cloud of smoke at Metro Center. And before that fiasco, the car reportedly stopped to let a sick passenger off the train. Coincidence? Metro says the train “lost one of its collector shoes”. My theory is that there was an X-Men/Heroes/Men in Black character on the train who beat up an invisible bad-guy, and than erased everyone’s memory. Draw your own conclusions. Boom!

Get ready for the same-sex marriage debate to take the District by storm—D.C. Council member David Catania introduced the bill on Tuesday. Somewhat diplomatically, the bill doesn’t require religious organizations to actually perform the marriages.  There will be a public hearing in October, and a preliminarily vote in December. Although same-sex marriages valid in other states have been recognized here since July, it’s hard to predict which way the wind will blow. Regardless, everyone is going to get drenched. Boom!

According to POLITICO, President Barack Obama has reaffirmed that the White House Olympic office will remain open, even though the US isn’t forecasted to host the Olympics until 2020—at the earliest. Okay, I know it probably isn’t logical, but just remembering President Obama skulk out of Copenhagen makes me hear small violins playing. It’s small consolation. Thoughts? Boom!

Winter is creeping up on fall--but don't panic. There's still plenty of time to dive into some cider-drinking, pumpkin-picking, plaid scarf fun: the Maryland Renaissance Fair is going on until Oct. 25, the Maryland Celtic Festival is coming, or you could even go metro-accessible camping like these sprightly college kids. Boom!

And finally, even Enya couldn’t calm down spa-goers in Bethesda when an 82-year-old woman plowed into a salon. According to WUSA, emergency responders believe the woman mixed up the accelerator and the brake. Boom—okay, not appropriate. Luckily, no one was seriously injured.

Don’t you feel awake now? Washington City Paper: Stronger than your morning coffee.

Photo by KM Photography, Creative Commons License

In this week's column, LL spun a scenario whereby the D.C. Council might approve a same-sex-marriage referendum. That best-case hypothetical situation for gay-marriage opponents, LL wrote, would be if "Ward 5 Councilmember Harry Thomas Jr., on the hot seat with an election a year off, convinces Chairman Vincent C. Gray and at-largers Michael Brown and Kwame Brown to join him, Yvette Alexander, and Marion Barry."

Not so fast! Gloria Murry Ford, a staffer for Michael Brown, called LL yesterday to protest mightily that her boss would never ever consider compromising on such a key civil-rights issue. Not even in some harebrained hypothetical scenario! Never!

Duly noted. And, it should be said that Kwame Brown is signed on as a co-sponsor of the marriage bill, and Gray is not only a co-sponsor, but offered strongly pro-marriage-equality comments in a Washington Times interview earlier this week.

So that leaves Alexander, Barry, and Thomas.

The Post reported Barry is "keeping an open mind" on the marriage bill. (Yeah, right.) Thomas has been waffling for a while. And then there's Alexander, who spoke to LL today.

Don't count on her vote, David Catania.

"I stand where the president stands, that the definition of marriage is a union between a man and a woman," she says, leaning heavily on the Obama civil-union crutch. She adds: "We give them just about everything that they would get [with marriage] with a domestic partnership."

And don't think any of those fancy terms is going to change her mind: "The word "marriage equality" for me doesn't make sensd. Marriage is between a man and a woman," she says. "How more equal do they want it?"

As for it being a human rights issue, Alexander thinks not. After all, she chairs the council's committee on again and community affairs, which has oversight over human rights matters. The bill isn't going to her committee, she points out, but solely to Phil Mendelson's judiciary committee. "No one can argue that it's a human rights issue if it's not going through human rights [committee]," she says, adding to her concerns that "I don't see how Congress is going to approve it."

As for a ballot initiative: "I think that would be the ideal situation."

Alexander says that Catania, the bill's sponsor, called her yesterday to ask whether she would support the bill. She was having lunch with Barry at the time. "When David asked me...he really didn't expect that I was going to cosponsor, but he gave me the courtesy of calling and asking."

And, no, she doesn't expect Barry to support the bill, either.

Still, you may ask: Why is LL so convinced that gay marriage would win big?

There's polls, you see: A July poll of registered Democrats in three wards conducted by leading business types showed 77 percent support for gay marriage. Then there's another, lesser known poll that's been whispered about for months among local same-sex-marriage advocates---a poll that the Human Rights Campaign, national advocacy group, had conducted in the spring showing upwards of 65 percent support citywide, LL is told by multiple sources. That's landslide territory.

But a couple of things worth mentioning on that polling. First off, the July poll was done in wards 1, 3, and 6---areas considered especially white and especially liberal. And, under a racial breakdown, the difference are stark: 92 percent of whites said they'd favor a council marriage bill, while only 41 percent of blacks said so. The age divide is stark as well: For those over 65 support drops to 64 percent from over 80 percent for all other age groups.

In other words: Surprise---the race and generational divides are real.

Then there's the HRC poll, which is shrouded in secrecy. LL has not seen an actual polling report or gotten any details on question format of sampling methodology. On Tuesday, LL called up the HRC and asked for details on the poll. This is what he got, a statement from spokesman Brad Luna: "From time to time, on a variety of issues of importance to our community across the country, we will go into the field with a public opinion poll. These polls are primarily done for internal guidance and the results of them are not released."

Obviously, the HRC has an interest in keeping the results close to the vest. Start publicizing that there's a huge majority in favor of your position, and you get local political columnists making harebrained arguments that you should betray your principles and just have a vote already.

The commenters over on the column have already started to explain why LL's got it all wrong. Feel free to chip in here as well.

Yes, Bishop Harry Jackson and the usual suspects filed new papers to day to hold a vote on making "only marriage between a man and a woman...valid and recognized in the District of Columbia."

But then there's this: The Archdiocese of Washington "also submitted a letter to the elections board today calling for a referendum. Archbishop Donald W. Wuerl even sent a letter to 300 Catholic priests asking them to get behind the effort."

"It is ironic that at the same time the city is asking for voting representation in the U.S. Congress, its leaders are denying residents the opportunity to participate in the Democratic process for an issue with widespread implications for children and families," sais a statement from Wuerl from Ronald Jackson, executive director of the D.C. Catholic Conference, an organ of the archdiocese.

At this minute, a 30-day congressional review period has expired, and you're now free to enjoy all the rights and responsibilities of civil marriage in the District. (That includes divorce, incidentally.)

If you're looking to celebrate, the Gertrude Stein Democratic Club tonight is hosting a "Road to Equality Happy Hour" at Halo in Dupont Circle, 6 to 9 p.m.

Now look for the real fight to begin---over performing same-sex marriages in the District. At-Large Councilmember David Catania is all but certain to introduce a bill permitting that in the fall; opponents are likely to pursue a ballot initiative, which will end up being adjudicated by the D.C. Court of Appeals.

Expect to hear a lot about the "Amtrak argument"---if all couples have to do is take a train to Connecticut or Massachusetts to get married, why not just let them marry here?

Retchin was widely expected to ignore the substance of the referendum proponents' argument---i.e., that the District's human rights law does not, in fact, prevent the measure from appearing on the ballot, as the Board of Elections and Ethics ruled earlier this month. Instead, she was expected to rule only on whether she could stop the marriage law from taking effect next week---an important question, since that would prevent a referendum and render any other legal arguments moot.

But her ruling is broad.

'Because the Court finds the Board correctly concluded that the proposed referendum would violate the District of Columbia Human Rights Act,' Retchin writes, 'and because Petitioners have failed to establish the necessary prerequisites for staying the legislation, the Court denies Petitioners’ requests for relief.'

In particular, Retchin found that the landmark 1995 Dean v. District decision does not apply to the issue of recognizing out-of-state marriages 'because Dean involved a different factual scenario and presented a different legal question than is before the Court.'

Retchin bought many of the arguments presented by the BOEE and the D.C. Council: 'Since 1995, when Dean was decided, there have been many significant changes in the District’s marriage law. As the District points out, seven of the eight gender-specific provisions in the marriage statute cited by Dean have been amended to make them gender-neutral....Moreover, since Dean, the DCHRA has been strengthened to afford more protection against discrimination. The DCHRA now proscribes discrimination based upon a person's “perceived or actual” membership in a protected category.'

Plus there's this point, perhaps the strongest: 'The Court in Dean did not consider whether the government could refuse to recognize the legal right of persons to remain married solely because of their sexual orientation. In fact, the Court in Dean could not have addressed this issue because when Dean was decided in 1995, no state had legalized same-sex marriage.'

On the issue of stopping the clock, Retchin decided that such a move was not warranted. For one thing, she bought the BOEE's argument in ruling that the referendum backers' 16-day delay in applying for a ballot measure 'was inexcusable.' Furthermore, she points out, the backers can always enter the initiative process, which is not subject to the 30-day congressional review timeline like the referendum process is. (But it is, of course, also subject to the D.C. Human Rights Act prohibitions.) And Retchin also expressed doubts that she had the authority to stop the enactment of legislation in any case: 'To do so may encroach on the well-defined role of the Council and Congress.... It is not in the public interest for courts to determine, on a case-by-case basis, the time permitted for the referendum process particularly where, as here, the legislature already has prescribed a strict and explicit time period for all referenda.'

Writes Retchin, 'At bottom, the harm about which Petitioners complain is not based on a denial of the right to referendum. Rather, they simply disagree with legislation enacted by our duly-elected Council. A citizen’s disagreement with constitutionally sound legislation, whether based on political, religious or moral views, does not rise to the level of an actionable harm....Petitioners’ remedy is to pursue an initiative or to seek redress through the political process by lobbying the Council and by exercising their right to vote.'

In other words, Retchin says: I'm no activist judge!

Expect a petition to the D.C. Court of Appeals forthwith; this is likely to be the last stand for judicial intervention in gay marriage in the District of Columbia.

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.

Reads the order [PDF], signed by both board chair Errol Arthur and member Charles Lowery Jr.:

[I]t is clear that the Referendum’s Proposers would, in contravention of the [Human Rights Act], strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere....Because the Referendum would authorize discrimination prohibited by the [Human Rights Act], it is not a proper subject for referendum, and may not be accepted by the Board.

More to come.

UPDATE, 4:50 P.M.: The order highlights this section of the Human Rights Act: "it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual's actual or perceived...sexual orientation."

In a twist of the knife, the order notes that when the referendum and initiative laws were introduced to the council in 1978, it was Councilmember Marion Barry who added the amendment barring laws concerning human-rights matters. Barry, of course, was the only vote against the gay marriage recognition law last month.

UPDATE, 5:05 P.M.: The order makes much of the fact that "contrary to times past, there can be, and is, such a thing as a valid same-sex marriage." From there, the order argues that a "broad policy of recognition" demands that the District recognize those marriages.

But if that's the case, why would the council even have to legislate?

The board recognizes the importance of the recognition law in that "it unequivocally declares that the District is a jurisdiction that affords full faith and credit to valid same-sex marriages" and that it is in keeping with a series of council actions to eradicate legal distinctions between heterosexual and homosexual couples. Finally, the new law "effectively adds discrimination against same-sex couples who have entered into valid marriages in other jurisdictions to the list of acts of discrimination prohibited under the [Human Rights Act]."

This is what the order has to say about the landmark Dean v. District case, decided by the D.C. Court of Appeals in 1995 and likely to figure heavily in any future court challenge: '[T]here is now, unlike in 1995 when Dean was decided, such a thing as a valid same-sex marriage....Simply stated, the [recent marriage recognition law] means that the HRA now requires the District government and all public accommodations, inter alia, to refrain from discriminating against same-sex couples who are validly married elsewhere unless the marriage is otherwise prohibited in the District.' Thus, the board rules, Dean is "not controlling.'

UPDATE, 5:15 P.M.: Next steps for the referendum proponents? They have 10 days to petition a Superior Court judge for a writ of mandamus blocking the board's decision, which is given expedited review. In an interview last Wednesday, referendum leader Bishop Harry Jackson vowed to appeal an adverse decision in court.

Pastor Patrick J. Walker of the New Macedonia Baptist Church, one of the proponents, says he is "deeply saddened and disappointed" by the board decision. "Simply put, I feel as a citizen of the District of Columbia, once again we've been disenfranchised. Our right to vote has been taken away, no different than what's happened on Capitol Hill....Now we're doing it ourselves."

Walker took particular issue with the board's reading of Dean: "We just don't believe that in 1995, if it wasn't a human rights violation then, just 15 years ago, how can it be a human rights violation now? The only thing different is a few persons' perception."

UPDATE, 5:35 P.M.: Phil Mendelson, who introduced the marriage-recognition legislation, responds in a statement:

I completely agree with today’s decision of the Board of Elections and Ethics. As I and many others stated when we testified in front of the Board last week, civil rights should not be subject to a referendum. I applaud this decision, as it was based firmly in the tradition of the District’s own progressive Human Rights Act. Recognizing marriages lawfully entered into in other jurisdictions is logical and just. It is unacceptable for government to sanction discrimination on the basis of one’s sexual orientation.

UPDATE, 6:05 P.M.: Board chair Arthur says in a statement, "We understand the sensitivity of this matter and appreciate the large number of citizens and civic organizations who gave input during this process. After giving this matter very careful consideration, the Board feels that our statutory obligation to reject this referendum is clear."

UPDATE, 6:10 P.M.: David Catania, too:

At the time of its passage, the District’s Human Rights Act was one of the most comprehensive statements on equality in the world. For over 30 years, we have endeavored to perfect and expand our understanding of equality....In my opinion, there is no question that the proposed referendum would have the effect of continuing discrimination. As such, I am pleased with the Board’s decision that the proposed referendum is incompatible with District law.

UPDATE, 9:45 P.M.: Here's a statement of the D.C. Catholic Conference, the activist arm of the Archdiocese of Washington:

Today’s announcement by the DC Board of Elections and Ethics to deny a referendum on this issue has once again disenfranchised the residents of our city. The DC Catholic Conference is deeply disappointed by the decision to deny voters a voice....

As part of an organization that serves thousands of children and families throughout this city, it would be our hope that residents be given an opportunity to be heard on an issue with widespread implications for children and families. The DC Catholic Conference will continue to strongly advocate for the long-standing and proper definition of marriage as the union between one man and one woman.

LL and the rest of the city are awaiting the board's decision whether to allow a referendum on recognizing other jurisdictions' same-sex marriages in the District.

The holdup? "Still debating some language," he says.

UPDATE, 4:36 P.M.: The board has released its ruling---the referendum is not allowed. Read more.