Same–Sex Marriage, Direct Democracy in D.C.
By Tom Williamson
The election season is upon us and will culminate on November 6 when the country will decide who will be president and which party will command majorities in the House and Senate. In addition, citizens of many states will be voting on numerous referendum and initiative proposals. One of the most controversial referendum issues in the Washington metropolitan area will be Maryland’s vote on the same–sex marriage law passed in that state earlier this year.
I will be paying especially close attention to the Maryland referendum for both personal and professional reasons. In 2009 and 2010, I was a member of a team of lawyers at my firm who represented several individuals and a coalition of LGBT, religious, and civil rights groups on a pro bono basis. We were providing amicus support for the D.C. government’s litigation efforts to avoid having its recently enacted same–sex marriage laws subjected to the referendum/initiative process. The District had first passed a law in 2009 recognizing the validity of same–sex marriages entered into in other states where same–sex marriage was legally permitted, and then the District enacted a statute that changed D.C. law to allow marriage for same–sex couples. The ultimate success of the District’s litigation efforts raises a timely question about whether the civil rights of a minority or a popularly disfavored group are a proper subject for repeal through direct democracy, i.e., a referendum or an initiative measure.
The opponents of same–sex marriage, using the plebiscite power of referenda and initiatives, have been notably successful in invalidating or precluding laws that permit same–sex marriages. Indeed, the issue has been put to popular vote in 31 states; in all instances to date, the majority in those states has voted against approval of same-sex marriage laws or in favor of constitutional amendments forbidding same–sex marriage. These results demonstrate that popular opposition encompasses a large and formidable constituency that is much broader than homophobic, single–interest groups.
The jurisdictions that legally allow same–sex marriage are concentrated in New England and the Mid–Atlantic region. The District and six states (Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont) constitute the minority that already issues same–sex marriage licenses.
How was it that D.C. voters did not have the opportunity to vote on the same–sex marriage laws passed by the D.C. Council and signed by the mayor in 2009? The answer is traceable to a unique provision of the District’s laws that prohibits the D.C. Board of Elections and Ethics from allowing referendum or initiative measures to be placed on the ballot that would have the effect of violating the D.C. Human Rights Act. That law is a broad, anti–discrimination measure which, among other things, defines “an unlawful discriminatory practice” as “a District government agency or office [limiting or refusing] to provide any facility, service, program, or benefit to an individual on the basis of an individual’s actual or perceived: race, color, religion, national origin, sex, age, marital status … [or] sexual orientation….” D.C. Code § 2-1402.73 (2006 Repl.) The Human Rights Act does not expressly designate the denial of a license for same–sex marriage as a violation; however, the D.C. Court of Appeals unanimously ruled in 2010 that such a prohibition would constitute a violation of the act.
In structuring the District’s statutory regimen governing the public’s referendum and initiative powers, the D.C. Council has carved out the rights of individuals to be protected from unlawful discrimination as rights that cannot be negated through the referendum or initiative process. In the litigation challenging the D.C. Board of Elections’ refusal to certify a referendum that would have invalidated D.C.’s same–sex marriage laws, the D.C. Court of Appeals, sitting en banc, upheld the Human Rights Act limitation on a 5–4 vote. The majority mainly based its opinion on a detailed analysis of the legislative history of the applicable D.C. laws while also invoking concerns of the Founding Fathers that the tyranny of the majority poses the threat of governmental abuse of individual rights.
The D.C. approach to limiting referenda and initiatives highlights the potential for tension between individual rights and direct democracy. The Human Rights Act limitation reflects the District’s extraordinary sensitivity to the vulnerability of minority and disfavored groups to discrimination. At the time the Human Rights Act was adopted in the 1970s, the population of the District was approximately 75 percent African American; the D.C. Council was majority African American. As a young lawyer, I was part of that 75 percent, and I can attest that the D.C. electorate and its elected representatives, black and white, were all too well acquainted with the pernicious effects of discrimination sanctioned by the majority, most obviously in the segregated South, but also in many communities in other regions of the United States.
As I was drafting this column, I wondered about the result in Loving v. Virginia, the 1967 U.S. Supreme Court decision that invalidated Virginia’s criminal anti–miscegenation law. If that ruling had been a legislative enactment subject to referendum, would the right to marry a person of a different race have survived the test of direct democracy in most states in America? I think not. At the time the Supreme Court delivered its Loving v. Virginia opinion, there were still 16 states that had anti–miscegenation statutes on the books; moreover, such marriages were subject to a harsh and well-understood, unwritten taboo throughout America. What made the difference in the 1960s for African Americans was the status of race as a “suspect classification” under the U.S. Constitution, and the willingness of the federal courts to give practical meaning to protecting against discrimination based on that “suspect classification.” On that basis, the Supreme Court and lower federal courts struck down a wide array of
segregationist laws in the South and elsewhere around the country. Similar constitutional protection has not been extended to members of the LGBT community.
As I contemplate the upcoming vote in Maryland, I also wonder if America is becoming more demographically like the District of Columbia—increasingly more populated by minority group members—and, therefore, more sensitive to protecting the rights of minorities and disfavored groups from majority rule by plebiscite. The time when most of the nation’s direct democracy laws (i.e., the laws granting authority to the public to petition for referenda and initiatives) were adopted was the “progressive era,” namely in the first two decades of the 20th century when the nation was a much less diverse place, and the types of federal and state anti-discrimination laws that exist today were more than a half century away from being enacted. Perhaps the day will come when the D.C. approach to limiting the appropriate subjects for direct democracy through referenda and initiatives will become the rule rather than the lonely exception.
Reach Tom Williamson at email@example.com.