The full D.C. Court of Appeals heard arguments this morning in a lawsuit brought by plaintiffs seeking a public referendum on the District’s recent legalization of same-sex marriage. The nine judges gave little clue of which way they are leaning, asking tough questions of both the plaintiffs and the District government’s lawyers.
The courtroom was almost full for the nearly two-hour oral argument. A few dozen people were wearing "I Support Marriage Equality" stickers handed out by the pro gay rights Family Equality Council. Others were there from Hope Christian Church in Beltsville, Md.
The lawsuit, filed by a group of ministers led by Bishop Harry Jackson of Hope Christian Church, contends that the D.C. Board of Elections and Ethics erred when it rejected a ballot initiative to put that legislation up for a public referendum. The board said the initiative was barred because it violated D.C.’s Human Rights Act, originally passed in 1978, which prohibits discrimination based on sexual orientation.
Arguing on behalf of the plaintiffs, Alliance Defense Fund attorney Austin Nimocks said applying the Human Rights Act restrictions on discrimination to the initiative process contradicts D.C.’s Charter Amendments Act. The latter statute amended the D.C. Home Rule Act in 1977 to create the initiative process.
He said that the 1977 act gives the voters co-extensive lawmaking authority with the D.C. Council and that the act’s plain language states only "laws appropriating funds" are invalid for public referendum.
Judge Phyllis Thompson, sounding skeptical, asked Nimocks a question that would be repeated in various ways by multiple judges during the next 45 minutes: "What is the clear purpose of the charter amendment?"
Nimocks cited the exact language of the appropriating-funds restriction.
Thompson repeated, "What is the purpose?"
Nimocks countered that the definition and purpose are identical, arguing that there wasn’t any basis to read into the law further restrictions on ballot initiatives.
In his rebuttal, D.C. Solicitor General Todd Kim said repeatedly that the court should give the D.C. Council "extreme deference" in its interpretation of its powers under the Home Rule Act 1973, which established an independent D.C. government.
"It is a broad but not unlimited right," he said referring to ballot initiatives.
Chief Judge Eric Washington said there is no evidence that when the council passed the Charter Amendments Act, it intended to later add new restrictions on the initiative process.
Kim countered that the plain language of the Charter Amendments Act provides no "substantive guarantee" that the council wouldn’t amend further. He also pointed out that the Human Rights Act was passed just a year later by a nearly identical council.
Judge John Fisher questioned whether same-sex marriage would fall under the Human Rights Act prohibitions that might bar a proposed initiative.
Kim said marriage discrimination fell under the act's prohibition against discrimination in regards to "services." He then repeated that the Human Rights Act affects few initiatives in comparison to "the universe of legislation" at the council each year.
Judge Stephen Glickman expressed concern about the "breadth" of issues that could not be addressed in initiatives under this interpretation of the Human Rights Act. "It appears to be a moving target," echoed Judge Anna Blackburne-Rigsby.
Kim said the Human Rights Act was written to accommodate potential future discrimination issues.
After the hearing, John Wilson, a gay Maryland resident who received his marriage license in California in 2008, said he was optimistic. "It’s a strange argument to make to say you are doing the right thing by taking rights away," he said referring to the plaintiffs' arguments.
Bishop Jackson said he was impressed with the judges' line of questioning. "It shows we are getting a fair hearing," he said. "It seemed to me there was a little bias in the lower courts."