There will be no popular vote on marriage equality in DC

The DC Court of Appeals, sitting en banc, ruled this morning in Jackson v. District of Columbia Board of Elections and Ethics that the marriage equality legislation enacted last year by the DC City Council is not a proper subject for the initiative or referendum process. That means there will be no popular vote on marriage equality in DC.

The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.

The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.

We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.

Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...