Is the District’s Human Rights Act becoming a barrier to the democratic process?
That’s the question being asked after D.C. Superior Court Judge Judith N. Macaluso upheld the earlier ruling by the D.C. Board of Elections and Ethics that a proposed initiative to define marriage as only between a man and a woman would violate the city’s Human Rights Act. Stand4Marriage, a coalition of residents and clergy, had sought to get the measure on the ballot.
“We think there were mistakes; the matter already has been noted for appeal,” said Colby M. May, senior counsel and director of the Washington office of the American Center for Law and Justice. He represented 39 congressional representatives who filed an amicus brief on behalf of Stand4Marriage.
The fight over same-sex marriage may end up in the Supreme Court. But what has been exposed in this local battle is the burden the Human Rights Act may be imposing on civil rights.
I spoke with more than a half-dozen residents and legal experts, many of whom described the HRA as overly broad. The act includes the standard prohibitions; but it’s also illegal to discriminate based on “personal appearance, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual.” Critics further argued the council may have exceeded its authority and is using the act to limit citizens’ engagement.
“If the council can place anything off-limits for citizens’ input simply by inserting it in the [HRA], then the council nullifies citizens’ rights to have initiatives and referenda,” said Gary Imhoff, co-founder of DC Watch, a government watchdog group that has been involved in several initiatives and referendums.
In 1978, the Home Rule Charter — the District’s constitution — was amended to provide citizens the right to create and repeal laws, except those involving the appropriation of funds. The same council approved procedures for implementing that amendment. But the Initiative, Referendum and Recall Procedures Act added restrictions not originally indicated in the charter amendment approved by Congress, including that no citizen law can “authorize discrimination.”
May said Macaluso didn’t address whether the council exceeded its authority by adding those restrictions without formally amending the Home Rule Charter; thus, the “infirmity is still there.”
“Anything can be added to the [HRA] to prevent citizens from having a say,” Imhoff said. He argued that over the past 10 years there has been a “sea change not in popular opinion but in elite opinion,” which asserts that there are issues that are “inarguable.” That has meant that if citizens engage in a debate on those issues, they are called bigots. Or, in the case of same-sex marriage, homophobes.
It doesn’t matter what side of the marriage issue you’re on. I think everyone interested in a fully functioning democracy should want to examine more closely the apparent overreaching consequences of the Human Rights Act, especially as the council and the courts have been using it.
Jonetta Rose Barras, host of “D.C. Politics With Jonetta,” can be reached at [email protected].
