Jul 03, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

A D.C. judge issued a crippling blow Tuesday to supporters of a referendum to overturn the city’s same-sex marriage recognition law by denying a request for a court injunction to put the law on hold and allow more time to coordinate the referendum.

Superior Court Judge Judith Retchin, in a 15-page decision, also upheld a ruling by the D.C. Board of Elections & Ethics that determined the referendum could not be held because its aim of barring the city from recognizing same-sex marriages from other jurisdictions would violate the city’s human rights law, which bans discrimination based on sexual orientation.

Retchin’s decision clears the way for the city to begin recognizing same-sex marriages from other states and countries on July 7, one day after Congress is scheduled to complete its 30 legislative day review of the law, according to elections board attorney Kenneth McGhie.

“Because the court finds the board correctly concluded that the proposed referendum would violate the District of Columbia Human Rights Act, and because petitioners have failed to establish the necessary prerequisite for staying the legislation, the court denies petitioners’ request for relief,” Retchin said.

The decision represents a victory for gay activists, who strongly opposed a referendum on the marriage issue. It also was a setback for Bishop Harry Jackson Jr., pastor of Hope Christian Church in Beltsville, Md., who emerged as the leader of efforts to bar same-sex marriage in the District.

But efforts to kill the same-sex marriage recognition law didn’t end with Tuesday’s court decision.

One of Jackson’s attorneys, Brian Raum of the Arizona based Christian conservative law firm Alliance Defense Fund, said the group would work with Jackson to overturn the marriage law through a D.C. ballot initiative.

McGhie said that although the board’s reaction to a proposed initiative by Jackson would depend on its specific wording, the board would likely rule against allowing an initiative to be placed on the ballot for the same reason it ruled against a referendum: it would violate the Human Rights Act.

Following an event Tuesday at the National Press Building, Jackson told the Blade he had not learned of the court decision, but noted that he’d contest a ruling against referendum supporters.

“We will definitely fight it — if that’s the case — yes,” he said.

The Washington Post reported Wednesday that Jackson issued a statement calling the court decision “absurd” and said city laws have always recognized marriage as a union between a man and a woman.

“This is the law in 44 states and at the federal level,” the Post quoted Jackson as saying. The paper said Jackson maintained that the “real” rights issue is whether D.C. residents will get the right to vote on the marriage recognition law.

D.C. gay activist Peter Rosenstein, who serves as president of the same-sex marriage advocacy group Campaign for All D.C. Families, called Retchin’s decision “a win for all the people of the District of Columbia.”

Noting that the decision upholds a law approved by “duly elected” city officials, he said, “We are a progressive and fair people in D.C. and today the equal rights of the GLBT community are being affirmed.”

Gay D.C. Council member David Catania (I-At Large), who also praised Retchin’s ruling, said he believes the decision “essentially rules out an initiative on the issue.”

Catania said Retchin’s rationale in upholding the election’s board denial of a referendum on grounds that it would violate the Human Rights Act would almost certainly be applied to efforts to kill the marriage law through an initiative.

“In my opinion, this decision renders an initiative impossible,” he said.



‘They simply disagree’

In her decision Tuesday, Retchin disputed claims by Jackson and six others who petitioned the court to reverse the decision by the election board. The petitioners argued they would suffer irreparable harm if the court did not issue an injunction to put the law on hold.

She said Jackson and the others still have the option to seek a voter initiative to repeal the law after it takes effect next week. She also disputed an argument that their right to a referendum would be “deprived” if she denied their request for an injunction.

Retchin said referendum backers exercised their right under the law to propose the referendum but failed to meet the legal requirements set by D.C. law.

“At bottom, the harm about which petitioners complain is not based on a denial of the right to referendum,” Retchin says in her decision. “Rather, they simply disagree with legislation enacted by our duly-elected [members of the D.C. City] Council. A citizen’s disagreement with constitutionally sound legislation, whether based ...