DC Board of Election and Ethics Ignores Right to Religious Liberty in Denying Referendum on Marriage

February 05, 2010

In refusing to permit the people of the District of Columbia to pursue a referendum on the same-sex marriage law in the District, the Board of Elections and Ethics (BOEE) – currently a two-person panel – ignored the religious liberty issues presented to them.

In their decision, the two board members denied the petition that would allow residents of our nation’s capital to vote on whether or not to recognize same-sex marriage. Without addressing key arguments presented to the BOEE, the members wrote that a referendum would “authorize discrimination” prohibited under District of Columbia law.

Yet, in an analysis released by the Archdiocese of Washington today, the Board did not properly address a critical issue brought forward: the lack of adequate religious liberty protections in the same-sex marriage bill.

During the City Council’s consideration of the same-sex marriage bill, called the Religious Freedom and Civil Marriage Equality Act, the archdiocese, other organizations and individuals encouraged the council to ensure the legislation lived up to its name and balanced the council’s interest in legalizing marriage between same-sex couples with that of religious liberty. In fact, the D.C. Human Rights Act, cited in support of same-sex marriage, equally prohibits discrimination on the basis of religion.

That did not happen; the exemptions for religion were extraordinarily narrow, particularly when considered against the experience of the five states that have legalized same-sex marriage. Some advocates for same-sex marriage even proposed that religious organizations simply stop activities that would place their rights in conflict with the new law. In other words, that religious organizations and individuals withdraw from the public sphere despite centuries of legal precedent in favor of respect for religious liberty.

The analysis also noted that the right of initiative and referendum was established through an amendment to the D.C. charter, and that amendments have to be approved by a majority vote of the city’s residents. Logically, any restrictions of the right should therefore go before the people. That never happened. A 13-member City Council passed the restriction on the right of the people on its own, with no city-wide vote.

It is extremely disappointing that a two-person panel determined a referendum would “violate the Human Rights Act” without addressing the religious liberty arguments, considering religious liberty also is protected under the Human Rights Act. In short, the panel found a right for same-sex couples to marry by ignoring the right to religious liberty. The full analysis is online.

Susan Gibbs
Director of Communications
[email protected]