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Judge Concludes That Referendum Would Violate District’s Human Rights Act
Washington, D.C. - Earlier today, Councilmember David Catania (At-Large) lauded D.C. Superior Court Judge Judith Retchin’s decision to deny a referendum on D.C. Act 18-70, the “Jury and Marriage Amendment Act of 2009.” The legislation requires the District to recognize same-sex marriages legally performed in other states or jurisdictions. In her sweeping opinion, Judge Retchin upheld the Board of Elections and Ethic’s decision to deny the referendum on the grounds that it violated the District’s Human Rights Act (HRA). She also ruled against the petitioners of the referendum on several other grounds.
“I am very pleased with the Court’s decision to deny the referendum on the grounds that it would violate the District’s Human Rights Act. For over 30 years this Act has stood as one of the most comprehensive statements on equality in the world,” said Catania.
Catania added that he believed the Court’s decision essentially rules out an initiative on the issue. Retchin specifically cited the Council’s various actions over the years to remove gender related biases within the District’s marriage statute as evidence that the District’s public policy is to prohibit discrimination against same-sex couples in this area.
“In my opinion, this decision renders an initiative impossible,” said Catania. “Both the Board of Elections and now the Court have stated very specifically that old court cases limiting marriage to heterosexual couples are no longer relevant. In addition, they have recognized the Council’s march towards equal marriage rights as real and relevant. And finally, they have concluded that any action that would curtail those rights is a form of discrimination that is specifically prohibited by the Human Rights Act.”
The District’s current HRA was adopted in 1977.[1] Its enactment became necessary when its predecessor, Title 34 – the District’s previous anti-discrimination law – was found to be an improper regulation due to its enactment by a pre-Home Rule Council. With its previous law under challenge, the Council moved quickly to re-enact one of the strongest anti-discrimination laws in the country. At its outset, the HRA states:
It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.[2]
Two years after the HRA was enacted, the Council passed D.C. Law 3-1 to protect District citizens from an initiative or referendum that would violate its newly re-authorized HRA. The protection cited the HRA (i.e., “Chapter 14 of Title 2”) specifically, saying:
Upon receipt of each proposed initiative or referendum measure, the Board shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative or referendum, whichever is applicable, under the terms of title IV of the District of Columbia Home Rule Act, or upon any of the following grounds…The measure authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2. [3]
Judge Retchin's opinion can be read here.
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[1] D.C. Official Code § 2-1401.01 et seq.
[3] D.C. Official Code § 1-1001.16(b).
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