Although no judges, thus far, have accepted the arguments made by opponents of marriage equality in D.C. that they should be able to go forward with a ballot measure to stop same-sex couples from marrying, the D.C. Court of Appeals listened to arguments on the question.
For 90 minutes this morning, May 4, the nine active judges of the District's highest court heard arguments in a case brought by Bishop Harry Jackson and others seeking to hold a voter initiative on whether the District should allow marriage equality. The D.C. Superior Court ruled earlier that the D.C. Board of Elections and Ethics (BOEE) was correct in its decision that the proposed initiative was not a proper subject for the ballot.
The attorney for the city, D.C. Solicitor General Todd Kim, argued that the Charter Amendment Act (CAA) – the District's ''constitution'' – made it ''incumbent on [City] Council to determine'' the substantive limits to be placed on the initiative process. The Council, he said, made the ''choice in the [Initiative, Referendum, and Recall & Procedures Act (IPA)] to understand the CAA'' as including in its purpose that an ''unchecked majoritarian impulse can trample minority rights.'' Simply put, minority rights cannot be subject to popular vote.
It is for this reason, Kim argued, that the District, in the IPA, prohibited initiatives that would violate the Human Rights Act of the District. The proposed initiative, the BOEE found, would do so and, thus, was not a proper subject for an initiative.
The Alliance Defense Fund attorney representing Jackson and the others, David Austin R. Nimocks, argued that the BOEE was incorrect. He told the court on Tuesday the definition of initiatives provided for by the CAA is specific and that the D.C. Court of Appeals has held that the two procedures addressed in it are those relating to ''responsible fiscal management'' and ''the right of initiative for everything else."
Along that line he argued that the CAA is ''clear and unambiguous on its face,'' and that the IPA's Human Rights Act limitation conflicts with it. As he put it, referring to City Council, ''They cannot legislate inconsistently with the charter.''
Pushing that argument in his questioning of Kim, Chief Judge Eric T. Washington said there was no discussion about limitations on the initiative process when the CAA was approved by Congress. As such, he mused of the IPA's Human Rights Act limitation, ''It seems to be a backdoor way of amending the charter.''
Kim responded that the CAA gave no affirmative guarantee of an unlimited initiative and stressed a point earlier made by Judge Vanessa Ruiz about the more than 30 years that have passed since the CAA, IPA and Human Rights Act became law. He said the ''long acquiescence'' to the Human Rights Act exception should lead the court to uphold its validity.
When Nimocks was presenting his argument, Judge Phyllis D. Thompson told him that she was ''concerned that you can read so much into a definition,'' and later went further in her questioning, saying, ''My question goes to whether there's a conflict at all.''
Nimocks simply repeated his earlier statement that the IPA is ''not consistent with the language of the charter,'' which led Judge Inez Smith Reid to ask why the court should not give ''substantial deference to the legislative authority.''
Referring to the ''legislative ping-pong'' that is the basis of the referendum and initiative process, Nimocks told the judges, ''If the Council can do it, the people can do it.''
Toward the end of Kim's 45-minute period arguing his case to the judges, Kim was asked by Judge Stephen H. Glickman whether District residents could propose an initiative to repeal the entire Human Rights Act itself, or whether that too would be prohibited by the IPA restriction. Although Kim called it an ''interesting question,'' he said he was not ''authorized'' to make a determination of what the BOEE would decide in that circumstance.
When Nimocks returned to give his rebuttal arguments, Chief Judge Washington asked whether and how Nimocks was reading a ''definitional term'' in the CAA as a ''statement of purpose.'' The lawyer for Jackson responded, ''I don't view it as definitional. … This is saying, 'This is the right.''' And that, he argued, means the Council cannot limit it as it did with the IPA.
The chief judge said that the court's opinion on the case will be forthcoming.