Same-sex couples in the District of Columbia (DC) are celebrating as marriage equality legislation comes into force today, Wednesday, March 3. Couples can now apply for a marriage license, although, due to existing DC regulations, they will still have to wait three business days to exchange vows.
The legislation, known as The Religious Freedom and Civil Marriage Equality Amendment Act, has been subject to a 30-day congressional review period in which the US Congress could have chosen to prevent the law from taking effect through joint resolutions, but, in spite of some Republican lawmakers introducing such measures, none managed to gain traction.
Wednesday marks the end of that review period, and as such, the start of marriage equality in DC. The law has repeatedly been challenged in the courts by marriage equality opponents, most recently in a last minute appeal that was made to the United States Supreme Court on Monday night, in which they hoped to stay the legislation from coming into effect.
Marriage equality opponents have been riled by the fact that, due to DC’s 1977 Human Rights Act, marriage equality legislation that was passed by DC’s City Council and signed by Mayor Adrian Fenty in December, 2009, can not be the subject of a referendum, as such action would potentially allow for a change in the law that would discriminate against DC’s lesbian and gay citizens by denying them the right to marry their spouse, something which the Human Rights Act prohibits.
The decision to deny a referendum, which was made by the DC Board of Elections and Ethics, was challenged and reviewed and then upheld in DC’s Court of Appeals and Superior Court. Still, marriage equality opponents such as the group Stand For Marriage DC vowed to push the fight in Congress and to have the law blocked during the congressional review period.
Seeing that Congress would not bar the legislation, and that the end of the congressional review period was looming, marriage equality opponents decided to petition the Supreme Court in a last ditch attempt to prevent the law from coming into effect, citing that the failure to grant a referendum was a breach of their rights, and that marriage equality legislation would cause them “irreparable harm.”
From the Associated Press:
Court papers filed Monday with Chief Justice John Roberts argue that Washington residents should be able to vote on the matter. Local courts have rejected the opponents’ arguments.
The gay marriage opponents include a Baptist minister, Walter E. Fauntroy, who was Washington’s delegate in the House for nearly 20 years.
Aided by lawyers at the Alliance Defense Fund, marriage equality opponents filed their case with Chief Justice John Roberts, asking him to stay the law from coming into effect on March 3 until the Supreme Court could review the case at a later date. Justice Roberts had the option of granting the request and passing the case on to the Court, or to deny the request outright.
Acting alone, Justice Roberts chose to deny the request. From DC Agenda:
Chief Justice John Roberts, who ruled on the matter on behalf of the court, issued a three-page decision saying Bishop Harry Jackson and others opposed to the marriage law could not show that they could win the case on its merits, or that allowing the law to take effect would cause them irreparable harm…
“Without addressing the merits of the petitioners’ underlying claim, however, I conclude that a stay is not warranted,” he wrote. Roberts cited past rulings of the Supreme Court that have said it’s the court’s practice to “defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”
Further to this was the complaint that the DC Council had violated DC’s Home Rule Charter by denying the requested referendum. Justice Roberts was skeptical of this claim, pointing out that the legislation involved had been subject to the same legislative process:
“A joint resolution of disapproval by Congress would prevent the act from going into effect, but Congress has chosen not to act,” Roberts wrote. “The challenged provision purporting to exempt certain D.C. Council actions from the referendum process … was itself subject to review by Congress before it went into effect.”
Roberts did note, however, that there may still be legal avenues to pursue within DC’s courts to push for a ballot initiative now that the law has passed, drawing a distinction between a referendum on a pending law and a ballot initiative on a law that has already come into effect.
A separate bid for a ballot initiative is still pending in the DC Court of Appeals which Roberts was quick to point out would see the Court consider the broader legal questions behind denying a ballot initiative, something which, in the framework of the motion to stay, he could not yet examine:
“Unlike their petition for a referendum, however, the request for an initiative will not become moot when the act becomes law. On the contrary, the DC Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision [at the Supreme Court] at the appropriate time.”
I’ll keep you updated on that appeal as and when more information becomes available.
In the meantime, around 400 DC same-sex couples are expected to attend a tentatively scheduled marriage event on March 20 entitled “Our Time Has Come” created by GLBT Wedding Services. The celebratory event will offer same-sex couples the chance to be married in a group ceremony and then to attend a joint wedding reception in the evening. You can find out more by clicking here.
In related news, Mexico City’s gay marriage law is expected to come into effect in the next few days (possibly as soon as Thursday, March 4). The marriage equality legislation, the first of its kind in Latin America, has had to overcome similar legal obstacles as those faced by DC’s marriage equality law.
While a federal challenge to Mexico City’s same-sex marriage legislation has yet to be considered, the Supreme Court last week struck down three challenges made by governors of states that neighbor Mexico City. The governors of those states had argued that allowing same-sex couples to marry and adopt in the federal district of Mexico City would force their individual states to do the same. These claims were dismissed by the Court, which branded them groundless and ‘inappropriate’. As in DC, mass wedding ceremonies are planned in Mexico City over the coming weeks to celebrate the dawning of marriage equality in the federal district.
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