- The Washington Times - Thursday, July 15, 2010

Same-sex-marriage opponents in Washington, D.C., vowed to appeal to the nation’s highest court after an appeals court Thursday upheld a city law allowing the unions and rejecting an effort by opponents to put the issue before voters.

“We will take it to the Supreme Court,” said Bishop Harry R. Jackson Jr., pastor at Hope Christian Church in Beltsville, Md., who led a coalition of same-sex-marriage opponents that brought the court challenge.

In a 5-4 decision, the D.C. Circuit Court of Appeals agreed with a Superior Court ruling in January and an earlier ruling by the city’s Board of Elections and Ethics that said a referendum on same-sex marriage would violate the city’s Human Rights Act.

“Because appellants’ proposed initiative would authorize, or have the effect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not a proper subject of initiative,” Judge Phyllis D. Thompson wrote in the court’s 54-page decision.

But in a 27-page dissent, Judge John R. Fisher wrote that the D.C. Council exceeded its authority when it said that a ballot initiative could not violate the Human Rights Act.

“Even if we assume that the people at large are more likely to discriminate against minorities than are their elected representatives, appellees forget that there are numerous checks and balances in place here to protect against the tyranny of the majority,” Judge Fisher wrote.

He pointed out that an initiative could be defeated at the polls, it could be disapproved by Congress, or it could be amended or repealed by the council.

Mr. Jackson said that while he was disappointed in the appeals court decision, he was encouraged that the decision was split.

“It seems there really is a strong difference of opinion over whether the rights of the people to vote on this issue have been usurped,” he said.

Mr. Jackson and others had sought to have a referendum placed on the city’s November ballot that said: “Only marriage between a man and a woman is valid or recognized in the District of Columbia.”

He said he remains confident that the Supreme Court will take the case and reverse the lower-court decisions. Even then, a vote on gay marriage could not take place until November 2011 at the earliest, he said.

All but one state that has had a gay-marriage referendum has voted against it, but the last poll to be taken of Washingtonians suggested that they favored gay marriage. A Washington Post survey released in February said 56 percent of D.C. residents favored gay marriage, with 35 percent opposed and 9 percent unsure.

Ken Klukowski, fellow and senior legal analyst for the conservative American Civil Rights Union and special counsel to the Family Research Council, said he thinks the odds are slim that the high court will take the case just based on the small number of cases the justices vote to hear each session.

But if it did, he said, he would expect a narrowly crafted ruling focusing on D.C. election law rather than on the merits of gay marriage.

“I believe they would not even touch the gay-marriage issue because they know that’s coming to them soon enough and they know it’s coming in cases that are more ideally suited to that issue,” he said.

A case pending in California brought by four same-sex couples seeks to strike down Proposition 8, an amendment to the state constitution passed by a 2008 referendum that affirms that marriage is between one man and one woman.

Arguments in that case concluded last month, and whatever the outcome, the ruling is expected to be appealed to the 9th U.S. Circuit Court of Appeals and the Supreme Court.

Last week, a federal judge in Boston declared unconstitutional the denial of federal spousal benefits to gay couples married in Massachusetts. The federal government had denied a lesbian couple a series of benefits citing the federal Defense of Marriage Act, which defines marriage as between one man and one woman.

But the judge in the case said the federal government could not do that, saying “the states alone are empowered to determine who is eligible to marry.”

The justices likely will have the opportunity to weigh in on either of those cases, if so inclined.

Robert Langran, a political science professor at Villanova University, said he doesn’t think the court is ready to consider gay marriage, in large part because of the political sensitivity of the issue.

“I wouldn’t think they would have an appetite for it because it’s so divisive,” he said. “Even though you have people on the court who probably oppose gay marriage, I don’t think they’re going to take this one.”

Mr. Langran said it likely would require differing opinions between federal appeals court judges before the high court felt compelled to hear a same-sex marriage case. However, he said, since the issue in the District is about whether the issue should be put to a public vote, he would not rule out an examination by the high court.

“They do look at referenda,” he said.

In addition to the District, five states perform same-sex marriages, three others recognize gay marriages from other states, and California acknowledges as valid gay marriages made during the five-month period it was legal in that state.

The District’s law was passed by the D.C. Council in December and signed by Mayor Adrian M. Fenty in January. The legislation came after the council last year passed a bill to recognize same-sex marriages performed in other jurisdictions.

Same-sex marriages began taking place in the District in March.

• Matthew Cella can be reached at mcella@washingtontimes.com.

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