The D.C. elections board filed a motion Wednesday asking a judge not to delay implementation of a law recognizing same-sex marriages performed in other jurisdictions.
"Petitioners have essentially waived their chance to challenge the substance of the disputed legislation by filing their proposed referendum with the D.C. Board of Elections and Ethics some three weeks after the District approved it," the motion said.
The D.C. Council passed a law recognizing same-sex marriages performed in other jurisdictions May 5. Proponents filed a referendum May 27, which the elections board rejected June 15.
The District's motion is a response to the motion for preliminary injunction filed Monday by opponents of same-sex marriage. The petitioners' unusual request is an attempt to salvage a referendum effort that would put the question of same-sex marriage before city voters.
"Unless this court enters an injunction staying the effective date of the act, the people of D.C. will be deprived of their right to vote on the critical public policy issue of whether D.C. should defer to the laws of states and foreign countries regarding what constitutes a marriage," the motion said.
Without intervention by Congress or the courts, the legislation passed by the D.C. Council last month is set to go into effect early next month - the end of the required congressional review period. The law is widely considered to be a precursor to another bill that would legalize same-sex marriage in the District.
A "stay" on legislation is crucial for referendum supporters to collect more than 20,000 valid signatures - or 5 percent of the registered voters in the District - before the law takes effect.
Petitioners argue that the District deliberately stifled debate on the issue by introducing the provision recognizing same-sex marriage in a stealth manner by amending another bill. However, the District contends that the petitioners are merely dissatisfied with the election board's ruling.
"At bottom, petitioners simply disagree with the acts provisions legally recognizing same-sex marriages from other jurisdictions," the government's motion said. "Petitioners bring this suit because their efforts to influence the political branches were unsuccessful."
The seven petitioners fighting for a referendum include Bishop Harry R. Jackson Jr. of Hope Christian Church in Beltsville, who led the referendum effort in the District, and the Rev. Walter Fauntroy, the District's original nonvoting congressional delegate.
In an initial hearing last Thursday, Judge Judith E. Retchin said she was unsure whether the court had the authority to freeze legislation. The District argues in the motion that the court does not have sufficient authority.
"The court should not override the normal legislative process, at least without some reason more compelling than petitioners disagreement with properly enacted legislation," the motion said.
The judge said she will consider only whether to put a hold on the implementation of the law, not whether the board was justified in rejecting the referendum.
"If the court determines it has legal authority to stay the effective date of legislation, then we will get to the issue of lawfulness of the board of election decision," she said.
The elections board rejected the proposed referendum last week because it said it would violate the 1977 D.C. Human Rights Act, which bans discrimination based on sexual orientation.