DC Court of Appeals: OK to lock voters out on marriage

WASHINGTON — Alliance Defense Fund and Stand4MarriageDC attorneys are considering an appeal to the U.S. Supreme Court after the District of Columbia Court of Appeals, in a narrow 5–4 ruling, upheld the decision of the D.C. Board of Elections and Ethics to block residents from voting on the legal definition of marriage, despite a requirement by the D.C. Charter that they be allowed to do so. The charter, which serves as a constitution for the district, guarantees citizens the right to initiate and vote on any legislation except for “laws appropriating funds.”

ADF and Stand4MarriageDC attorneys represent Bishop Harry Jackson, Jr.; Del. Walter E. Fauntroy; and other registered voters. A Jan. 28 Washington Post poll showed that 59 percent of adult D.C. residents believe voters should be allowed to vote “yes” or “no” on the definition of marriage in the district.

“In America, we respect the right to vote. The citizens of the District of Columbia should not have their voices suppressed by the government, but that is exactly what is happening here,” said ADF Senior Legal Counsel Austin R. Nimocks, who argued before the court on May 4. “The decision from the D.C. Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom:  the right to vote. We are considering our options to right this wrong, which include asking the U.S. Supreme Court to consider this case.”

On Sept. 1, 2009, Jackson, Fauntroy, and other D.C. registered voters filed the Marriage Initiative of 2009. The initiative provides that “[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia,” affirming the district’s only definition of marriage at that time. The initiative was to be placed on the ballot for district voters to express their views either for or against the initiative, but on Nov. 17, 2009, the D.C. Board of Elections rejected the initiative, saying the subject was not proper in light of the D.C. Human Rights Act of 1977.

ADF and Stand4MarriageDC attorneys representing initiative proponents filed a lawsuit with the D.C. Superior Court contesting that decision the next day. The suit points out that the D.C. Charter guarantees citizens the right to initiate and vote on any legislation except for “laws appropriating funds.” It is undisputed that the Marriage Initiative of 2009 does not seek to appropriate funds.

The dissent accompanying the opinion of the court states, “Non-discrimination, tolerance, acceptance, and inclusion are all fundamental values to be fostered in a pluralistic society. But these aspirations are best achieved through a system of laws, and it is vital that the institutions of the District government observe the limits placed upon them by the Home Rule Act and the Charter. It is ‘our…duty to oversee Council action which might exceed congressionally delegated authority.’ The Council of the District of Columbia exceeded its authority when it imposed the ‘Human Rights Act limitation’ on the right of initiative. We respectfully dissent.”

Stand4MarriageDC.com attorney Cleta Mitchell is serving as co-counsel in the suit, Jackson #2 v. District of Columbia Board of Elections and Ethics. Mitchell and ADF attorneys also represent voters in a separate lawsuit, Jackson #3 v. District of Columbia Board of Elections and Ethics, regarding whether D.C. voters should have a say via referendum on the district’s marriage redefinition law. That case is still under consideration by the D.C. Circuit.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.