Yesterday Judge Judith Retchin denied Bishop Harry Jackson and the Alliance Defense Fund's appeal of the D.C. Board of Ethics and Elections ruling that stated recognition of same-sex marriages in the District would not be a proper subject for referendum because it violates D.C. Human Rights law by enshrining discrimination against same-sex couples.
What is most significant however--and which bodes ill for future attempts in D.C. to put marriage rights to referendum--is that Retchin concluded that a previous case that concluded restricting marriage wasn't a violation of the DCHRA was no longer binding. The 1995 Dean case, which the petitioners were arguing supported their position, the D.C. City Counsel has changed the language of laws pertaining to marriage in order to make the laws gender neutral. Thus, while in Dean the judges concluded that the law had established marriage as being, by definition between a man and a woman, the law no longer does that. Which means that the anti-marriage-equality movement is going to have a hard time relying on Dean in the future. As Mike DeBonis points out, this isn't "judicial activism"; Retchin is taking her cues, as did the judges in the Dean case, from the legislature; she isn't making new rules here.
Marriage-equality activists in D.C. have been playing a long game. The events unfolding now are the result of 30 years of activism on the part of the gay-rights community, the efforts to restrict marriage have been cobbled together over the course of the past few months. This is a chess vs. checkers situation if there's ever been one--it's really quite astonishing how effectively LGBT-rights activists have managed to stack bureaucratic inertia in their favor.
The Rev. Patrick Walker, who heads the local Missionary Baptist Minister's Conference's Task Force opposing same-sex marriage, released a statement yesterday saying, “We are not surprised by today’s decision by Judge Judith Retchin because, in many instances, the judiciary’s decisions have often favored the rights of a few while disregarding the rights of the larger culture and society." I don't know how to respond to that other than to say I'm pretty happy that's often been the case.
The anti-gay-marriage movement is arguing that this is an issue of voter disenfranchisement. Brian Raum of the ADF issued a statement saying, "Marriage redefinition activists will advance their agenda by any means necessary, even if that means snuffing out fundamental rights like the right to vote." But no where in the Constitution does it say citizens have a right to vote to approve every individual piece of legislation passed by local bodies.
I'm not really sympathetic to this view because this is how our system of government works; we elect people to represent our interests, and we're not "disenfranchised" if they do something they don't like, because we can choose to vote them out. For example, like 70 percent of the American population, I'd like to see a public option as a part of health-care reform. I'm not going to be disenfranchised if that doesn't happen; I'm disenfranchised because as a D.C. resident I don't have a senator I can call who can then sell me out for campaign contributions for insurance companies under the pretext of fiscal responsibility.
-- A. Serwer
