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A third D.C. judge rules against same-sex marriage opponents

Another Superior Court judge has denied a request by same-sex marriage opponents to overturn a D.C. Board of Elections rulings against a referendum on the issue.

The decision by Superior Court Judge Brian F. Holeman means same-sex couples may be able to start getting married in the District in about two weeks.

Earlier today, attorneys for Stand4MarriageDC and the Alliance Defense Fund, a conservative legal organization, appeared in D.C. Superior Court to challenge a previous court ruling upholding the elections board's decision.

The attorneys also asked the court to block the new law from taking effect while their lawsuit proceeds.

Holeman denied the request, according to Brian K. Flowers, the chief counsel to the D.C. Council. Holeman, according to Flowers, also denied a request to permit an immediate appeal to the D.C. Court of Appeals.

That could complicate opponents' efforts to get an appellate court ruling before same-sex couples begin to marry.

Holeman's ruling will not be official until Monday, said Austin Nimocks, an attorney for the Alliance Defense Fund. Once it is, opponents plan to file an immediate appeal.

"The people have a right to have the final say...The D.C. Charter makes that right clear, and officials should not be ignoring the right of the people to vote for or against the new definition of marriage fabricated by the council," Nimocks said. "We are appealing because the District's marriage redefinition law shouldn't go into effect until voters have the opportunity to vote on a critical matter that affects everyone in the District."

Holeman becomes the third Superior Court judge to rule against same-sex marriage opponents. The elections board says putting the issue on the ballot would violate the city's Human Rights Act, designed to protect gay men and lesbians and other minority groups from discrimination.

In December, Mayor Adrian M. Fenty (D) signed into law the council bill to legalize same-sex marriages. The bill is currently on Capitol Hill, where it is undergoing a 30-day review period.

U.S. Rep. Jason Chaffetz (R-Utah) has filed a formal disapproval resolution, but there has been no indications that the Democratic-controlled House and Senate plan to consider it.

Absent congressional intervention, same-sex couples will be allowed to marry in the District around March 3, according to council staffers and gay rights activists.

Bishop Harry Jackson, a leader in the effort to block the council bill, and other same-sex marriage opponents plan to hold a rally on Wednesday at the Capitol Visitors Center to try to step up the pressure on Congress to intervene.

--Tim Craig

By Tim Craig  |  February 19, 2010; 4:53 PM ET
Categories:  Tim Craig , same-sex marriage  
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Silly bigot, you're wrong as usual. ""The people have a right to have the final say." No they don't, and you are a legal hack! We're going to bankrupt you, and your pathetic religious corporations!

Posted by: FlexSF | February 19, 2010 5:45 PM | Report abuse

What a mess this issue or topic have become. Some people have to learn to let it go and go on with their life's. Homosexuality have exist for thousands of years, but I have never heard of 2 people of the same sex getting married. Welcome to the 21st Century and the destruction of mankind. I am going to live my life and I suggest to others, mind you business and be happy.

Posted by: ConservativeDemocrat | February 19, 2010 5:49 PM | Report abuse

Although I personally find the DC Council's actions to be abominable -- for a body so obsessed with self-determination, its opposition to giving the people a vote is hypocritical to the nth degree -- everyone in this area has a unique opportunity to choose where to live. If you don't like the extreme liberalism of the DC council, then vote with your feet and move out of the city.

Posted by: JoeSchmoe06 | February 19, 2010 7:03 PM | Report abuse

Maybe the opponents would have had more success in court if they were less pompous, shrill, and hysterical. Sometimes "true believers" aren't the best lawyers for their own cause. They may lack the distance and perspective to realize just how pompous, shrill, and hysterical they sound to a judge who isn't already sitting in their choir.

Posted by: uh_huhh | February 19, 2010 7:21 PM | Report abuse

You have GOT to be joking! What kind of an idiot is this judge? How can he possibly NOT see the chaos that will be created when he allows this law to go into effect and then it gets repealed by the voters, which is precisely what will happen!!! This is exactly the kind of chaos he is setting the City up for as happened in California when the State Supreme Court allowed gay marriage knowing full well the voters were going to have their more authoritative say on a constitutional amendment in just a few months. That was absolutely irresponsible, as is this so-called judge's decision to allow this to go through knowing full well it will - and rightfully so - be the court's final decision about whether or not the voters will be allowed to make this decision for themselves. What a total idiot! I hope the Council itself has more common sense and moves to stay the implelmentation of this law until the courts have made their final decision. They are just not seeing how devastating it was and how much uncertainty it caused - as well as the cost to the County Clerks offices and the burden it placed on the state to make this temporary change - knowing full well it could be reversed. They should have shown the appropriate restraint and judicial caution to wait a few months rather than put the state and the people through this! How incredibly stupid can one person possibly be?

Posted by: klgrube | February 19, 2010 7:29 PM | Report abuse

I just wanted to add that I do hope Judge Holeman will take the time to research just a little bit about what happened in California during the few months gay marriage was allowed by the court there. It was a horrible time for everyone, if for no other reason than the uncertainty itself of knowing there was going to be an election in a few months that could change everything. In this case, the uncertainty would be caused by knowing the court still had not ruled on the question of whether or not denying the voters the right to put this question on the ballot violated the DC Charter, and whether the Human Rights law cited by the Board of Elections as the rationale for doing so trumps the Charter.

In my own personal opinion, if the Council wanted to amend the Charter to incorporate these rights, that's what they should have done. But laws are subject to the Charter, not the other way around. I can't see any legitimate way the judge can possibly find otherwise that won't totally undermine the authority of the DC Charter. He would be on very rocky ground - try quicksand - to try to do so. An appeal to his decision would unquestionably find that the Charter is the controlling authority here, not the law on which the Board of Elections based its decision.

But the whole point here is simply that Judge Holeman should use an appropriate level of judicial restraint and caution to stay the implementation of this law until the courts have finally decided one way or the other and not put the people through this uncertainty.

Posted by: klgrube | February 19, 2010 8:13 PM | Report abuse

Oh my goodness, Joe Schmoe was so, so close, and then misses it so, so badly. Well, guess what, the people of DC have already voted. No need to vote with our feet, we voted at the ballot box in the last election and WE ELECTED THIS COUNCIL AND THIS MAYOR. What part of that do you all not get? We overwhelmingly elected our DC councilmembers knowing full well they are liberal, knowing full well they support gay rights, and in most cases knowing full well that they supported same-sex marriage. Now they're doing exactly the job we elected them to do: legislate. And if we don't like the job we're doing, guess what? There's ANOTHER ELECTION. So much for "opposition to giving the people a vote".

Posted by: MrDarwin | February 19, 2010 9:24 PM | Report abuse

So, you're willing to let this law go into effect only to have the court decide to let the voters make this decision for themselves and then have it repealed? You really WANT the city to be put through that? I don't think so, nor do I think Judge Holeman would if he stopped for two seconds to think about it, which I hope he'll do over the weekend.

I can't see any way this question will NOT be voted on by the voters of the District, even if it means voting OUT every Council member who tried to silence them on this issue, which they should do anyway, and then bringing this up again in Council AFTER the election.

Still, I'm confident that the courts will ultimately side with the voters. They can't NOT because to do otherwise would be to trash the DC Charter, which they really cannot do. This would be along the lines of the California State Supreme Courts telling the voters their State Constitution, which allows them to put items on the ballot, is worthless. They did not do that, and neither will higher courts who hear this case.

Honestly, what also angers me is that the Council itself is being so stupidly blind about this - and that Congress is so arrogantly willing to shrug their shoulders and let them get away with this nonsense! Come on, Congressman Lynch, man up and tell the District Council they don't get to silence the voters in violation of the DC Charter like that. That's your job, after all, as long as you are in charge of the Federal Workforce and DC Oversight SubCommittee. Do your job, for a change!

Oh, and Congresswoman Norton, don't even begin to think about Congress allowing DC home rule when the Council acts as arbitrarily as they have and when you personally refuse to stand up for the voters you supposedly represent!

What kind of a place has our nation's capital become where the established rights of the voters can be stomped on by the arbitrary decision of two unelected people (the Board of Elections) solely on the basis of political correctness, and where those elected to presumably represent the interests of the people who elected them, can get away with silencing them like that! That is totally outrageous and the courts should not - will not - stand for it!

Posted by: klgrube | February 19, 2010 9:44 PM | Report abuse

If the gay marriage opponents put their effort into help the people of the District find good jobs, the world would be a better place. Let people marry whoever they want. The government has no place interfering.

Posted by: TJ1743 | February 19, 2010 9:55 PM | Report abuse

If the city allowed the residents to vote on the right of others then blacks would still be slaves in the District. Know your city's history. Some white people were so pissed over blacks having the right to vote that they boycotted the first election. What happened to seperation of church and state. No one can change your religous beliefs by getting married. Marriage is a legal agreement between two adults. Why should I have my civil rights determined by over judgmental religous fanatics. If I'm not mistaking, Jesus said the greatest commandment was to love thy neighbor. So, I love you heterosexual, overjudgmental religous fanatics.

Posted by: gayliberalconservative | February 19, 2010 10:26 PM | Report abuse

In a very real way the case the judge is hearing isn't about gay marriage at all; it's about the rights of the voters and the authority of the DC Charter as it relates to DC laws. His decision cannot be based on the issue about which the people wished to vote (unless it was an appropriations issue), but whether or not the Charter permits the Board of Elections to deny voters the right to put an issue - any issue - on the ballot if it ostensibly violates another DC statute. The question before the court will be which prevails and whether the Council has the right to violate the charter if they think it is in the best interests of the people. The judge can decide that there is a compelling reason to allow the Council and Board of Elections to violate the DC Charter, but he has to admit that denying the voters the right to put this question on the ballot does indeed violate the Charter. Basically, he has to deny the validity of the Charter if he rules that these so-called 'human rights' statues carry greater weight.

His answer to the Council should be, that if they wanted to give those statutes the weight of the Charter, they should have amended the Charter to include them, and that no statute or law can carry greater weight than the charter itself. This would be consistent with the California State Supreme Court ruling that the voters had the right to amend their state constitution because the ballot initiative process is PART of the state constitution.

Like it or not, we are a country of laws and Judge Holeman has to follow the law.

But what I object to most in this article is the clear impression that the judge has already made his decision in this case. He has not. He gave a TENTATIVE ruling on the request to stop this laws from going into effect until a final decision is reached. I repeat, this was a TENTATIVE decision in which the judge decided that it would not be good to go against the elected state legislature. What he has to realize though, is that these legislators, in denying the voters the right to put this question on the ballot, actually violated the Charter - they violated the law. They think their decisions can overrule the Charter, rather than realizing that their decision have to be consistent with the Charter. They were wrong, and the judge will rule so. In the same way that Supreme Court decisions cannot violate the US Constitution, neither can this judges decision violate the DC Charter.

Posted by: klgrube | February 20, 2010 12:39 AM | Report abuse

Gay marriage

My concern is that more and more gay men get STD. It seems that gay men is easier to get an STD.
According to the report from the largest STD dating site == ==(if I spell the site correctly), the gay subscribers
increased continually. Most of them are sexy.

Posted by: stdsgirl | February 20, 2010 3:37 AM | Report abuse

Karen Grube and all you NOM fans. It safe to say that you just don't get it. Brian Brown and the ADF has totally misled you on DC law, your repeating their words does not make it true.

This is the third judge that has said to you the same thing, "NO!"

Kaern, please stop using denial, get help, join reality. Did you not learn your lesson from DADT? The military didn't change, the Gays didn't change, only the bigots change. Karen, time to consider change.

And a big shout out to Maggie Gallagher. "Tick, tick, tick, tick, it's only a matter of time.

Posted by: bobbarnes | February 20, 2010 10:14 AM | Report abuse

It amazes me that the opponents of same-sex marriage can rail against "unelected judges" in one breath, and then turn right around and rail against our duly elected representatives (and don't forget our mayor--we elected him too, and he signed the bill into law). The marriage opponents just don't get it, and having lost at every turn to get their way they will now try to get Congress to step in--apparently missing the irony that having Congress overrule our ELECTED council and ELECTED mayor--who are doing exactly what we ELECTED them to do--is the exact opposite of democracy.

Yet a recent poll shows that 56% of DC residents support same-sex marriage, so it's pretty clear that the DC Council isn't out of step with DC residents on this issue. But that still doesn't mean we should put the civil rights of a minority up for a vote by the majority--and make no mistake, the opponents of same-sex marriage aren't out to protect democracy or the right of the people to be heard, they're out to prevent same-sex marriage, plain and simple, and by any means possible; the ONLY reason they're pushing for a referendum is because they're betting that a majority, however slim, will vote against it. (But it's interesting that in the wake of this poll Harry Jackson is already backpedaling, saying he opposes same-sex marriage "religiously" and "socially" but not "politically"--whatever that means. Of course he's using every political tool he can lay his hands on to get his way.)

Posted by: MrDarwin | February 20, 2010 11:17 AM | Report abuse

Gee, bobbarnes, if I'm wrong about the DC law, please tell me how. I'd truly love to know. I mean that sincerely. Please explain.

This case, I think then, all boils down to whether or not the people should be allowed to vote on the definition of marriage. The voters in no other state where they have an initiative process has EVER been denied the right to put this question on their ballot. I'm assuming many of them have civil rights laws. And yet the voters have never been told they didn't get to vote on this issue. Not one, as far as I know. What makes DC so special that they think they can get away with silencing the voters this reprehensibly? I'd love to hear.

Posted by: klgrube | February 20, 2010 11:25 AM | Report abuse

Oh, and bobbarnes. I don't read here that the judge actually ruled on the case yet. Am I wrong? As I read the article he only made a tentative ruling to not delay to start the implementation of this law. He should rethink that over the weekend.

Posted by: klgrube | February 20, 2010 11:31 AM | Report abuse

Karen, you represent the true NOM, it's never been about saving traditional marriage, it's been anything anti-gay.

You come here from, the blog ran by NOM that demonstrates their true intent. Browse the blogs, you'll find Samantha reporting false data on Gays and AIDs, Gays and pedophilia, Gays and STDs... yes, all attempts to demonize the gays. And when someone dare posts a rebuttal and links to credible information from reputable sites, like the AMA, CDC, APA, a NOM employee deletes it and usually bans this poster.

The same thing goes on Facebook component of NOM/ NOMblog. The demonizing, hate speeches and rants against gays continue. All rebuttals are deleted. All civil attempts to debate are deleted. The very fascist need to censor is nothing short of 1940's Germany.

As far as DC Law, we're a representative government, we've had this human rights law in place since the 70's, which, BTW, was voted in by it's citizen. Your rants, parroting Brown and the ADF, keep skirting around the reality of how the DC Government work. Ignoring the facts to move your agenda along are not working. What is it that these judges know that your posse doesn't get? Calling the judge and idiot, nice! The judges ruling to not delay the law is as good is still an action in favor of the new law, hence your ungluing. But the message has been a consistent "no," who are we kidding?

As Mr Darwin has pointed out, the people have already voted, they voted in a representative, that's how it works. Please, reread what he has to say.

If you check the contribution list for Stand for Marriage D.C., not one dollar was contributed from a DC resident, all monies came from outside the area. This is a huge wake up call, please heed.

Karen, you are part of a hate group, deal with it.

Posted by: bobbarnes | February 20, 2010 12:37 PM | Report abuse

I'll ignore the personal attacks bobbarnes, because I truly am intersted in the issues of this case.

I reall would like to know about the DC laws. No one's explained that clearly to me.

1. Am I wrong that the DC Charter says people have the right to put initiatives on the ballot?

2. Am I wrong in assuming that the human rights law sited by two un-elected members of the board of elections as the reason for silencing the voters on this issue is technically and legally subservient to the Charter.

Honestly, I don't pretend to be a lawyer, but I did observe carefully what happened in California, and even their Supreme Court found that the initiative process was enshrined in the California State Constitution and they could not deny the voters' right to their decision on Prop 8. So, I'm not sure I understand how this human rights law trumps the DC Charter. If you can explain that in legal terms, I'd love to hear it. I mean that sincerely.

It just seems to me that when the so-called elected representatives of DC violated the DC Charter and refused to represent the people who actually elected them in their efforts to put this question on the ballot, it's no longer a truly representative body, which is why this is currently in the courts and why the current Council will probably be voted out next November. After all, 59% of the voters of Wshington DC believe they should be allowed to vote on this issue, and I'm sure they'll remember this next November.

Oh, and please do remember that the residents of DC aren't the only ones affected by this decision. It is outrageous that the voters of our nation's capital should be prevented from voting on this issue, and I am still confident that the courts will ultimately find in favor of the voters.

Posted by: klgrube | February 20, 2010 2:32 PM | Report abuse

I'm neither a lawyer nor a judge but I'll take a stab at it. First, the District of Columbia Charter provides a rather broad outline of how the District of Columbia goverment is structured and operates. The details of our legal system are outlined in DC law. And yes, the Charter does allow for an initiative and referendum process. All DC laws are subservient to the Charter, but both those laws and the charter itself are subservient to the U.S. Constitution, federal laws, and any relevant legal precedent.

Second, although not explicitly stated, the charter does not allow voters to enact laws that would contradict other laws. It's not explicitly stated because (a) it's common sense and (b) it's a well-established legal principle that is completely independent of the charter. The bottom line is that although no restrictions are placed on the initiative process in the charter, that doesn't mean we can hold an initiative on absolutely anything.

As an example, we could not have a voter initiative to prohibit black people, or women, or Catholics, from voting (or marrying for that matter). This is the part that I think most people don't understand: all the laws are interconnected and you simply cannot pass a law that negates or violates a different law.

Finally, the Board of Elections, and now a couple of judges, have determined that the proposed initative would violate an existing District law, in this case the DC Human Rights Act of 1977, which prohibits discrimination on the basis of (among other things) sexual orientation. The opponents of same-sex marriage have to argue that the initiative would do no such thing; this is why we need judges, whose role is to interpret the law when those laws are violated, challenged, or contradicted. And so far those judges, who know the law much better than I do, have sided with the DC Board of Elections in interpreting the law and ruling against the marriage initiative.

Posted by: MrDarwin | February 20, 2010 3:55 PM | Report abuse

This is the THIRD time these homophobes have tried to get a referendum to have a majority vote on a minority's civil rights! What is wrong with these people? Three judges have said no. You can't vote on a law where a possible outcome would be illegal. Geez, I mean, give it up already!

Posted by: jdavis115 | February 20, 2010 11:18 PM | Report abuse

Karen, Mr Darwin has explained it fully. But truth be known, we have explained this so many times only to fall on refusing to accept ears. When a child tells you that the sky is yellow then closes its eyes refusing to look, attempts to educate are futile.

You, Bishop Jackson, Brian Brown and the ADF keep insisting that the DC Council, Mayor Fenty and now the third of three Judges are breaking the law. And all you're doing is repeating what Brian wrote in one of his NOM blast a few months ago. Other than your copy and paste accusations, what do you really have on all these people? Just because you are against SSM, that means ten council members, one mayor and three judges are breaking the law? I think it's time for you to ask yourself why.

The residences of DC are fine with this. They are fine with their form of government, they are fine with the human rights law, they are fine with the actions of the council. Again, not one dollar of residences money was contributed to fight SSM in DC, that speaks volumes of their concerns.

As far as personal attacks. Well, you as a member of NOM should be use to seeing them doled out, the is litter with the heinous, demoralizing comments against gays. You're like a member of a Whites-only country club but don't want to be called a bigot.

Posted by: bobbarnes | February 21, 2010 9:10 AM | Report abuse

Thank you for the explanation, MrDarwin. I appreciate that. In all of that, neither of us disagree. We both agree that it will finally be up to the courts to determine which has the greater weight: the Charter or a DC law, when they conflict. That's their job.

I'm simply suggesting that the Council LET them do their job and not allow this law to be implemented until they have finished making their final decision. Knowing the chaos that happened here in California when our State Supreme Court took the same rash action, knowing full well their decision would be subject to a higher authority in a few months, I think it would only be responsible and respectful of the people of the District to stay the implementation of this law until the final decision has been made. There is no downside to waiting. There would be a tremendous downside if they let this start, the court decided the voters rights were improperly denied when they were refused the ability to put this question on the ballot, and then the people repealed this law.

All I'm saying is that no one knows really how the court will rule, nor do they know how the voters would vote were they allowed. What we do know is that there would be total chaos if this right were granted and then taken away by the vote of the people, as happened in California. I don't think anyone wants to see that. And all the Council would have to do to prevent this from happening would be to simply step back and say "We believe we are right, but we know the courts will make the final decision in this case. And we will let them make it before allowing the law to go into effect because the consequences to the city and the people who live here of the court ruling against us far outweigh the inconvenience of waiting a few months and letting this matter be settled once and for all, and the benefit of having this law finally be supported by the courts if they rule in favor of the city would be of greater benefit if we show the appropriate level of caution until they rule."

To me, that makes sense. Common sense. And it is respectful of everyone on both sides of the issue.

Posted by: klgrube | February 22, 2010 1:17 PM | Report abuse

Oh dear God, Karen, how disingenuous of you. I hardly think you and Mr. Darwin are agreeing on anything. Your thinly veiled homophobic... errr, I mean concern for traditional marriage is quite clear. Your only concern about DC's laws and the charter is that you feel it be maneuvered/manipulated to deny its citizens marriage equity.

By the way, here's a great quote of yours from the NOMblog:
"But here’s my problem: This trial isn’t about same-sex marriage at all, but trying to force the acceptance of the gay lifestyle on all of us"

Again, we don't need another carpetbagger, butt out.

Posted by: bobbarnes | February 22, 2010 4:29 PM | Report abuse

klgrube, I'm confused. What court case are you talking about? Counting this decision, there have been 3 that have been very clear that voting on civil rights is not allowed under the HRA. You make it sound like there's some groundbreaking courtcase in DC that will affect that decision. There isn't.

And by the way, regarding your comment "There is no downside to waiting," is spoken like the privileged heterosexual who can get married at the drop of a hat. It's easy for those with power to see holding onto the status quo as no big deal. Sorry, those of us who are denied this basic right feel a good bit differently.

Posted by: redgrifn | February 22, 2010 5:25 PM | Report abuse

redgrifn, perhaps I can shed some light on this.

klgrube (Karen) is here from the National Organization for Marriage blog, to pose as "Jane Public" with concerns about DC. If you were to post your question over at you would be told the following:

1) Gays are not a minority, you choose to be gay, you can't choose to be Black.
2) Marriage is not a right.
3) Why do gays keep bringing up civil rights, see number 1.

If you go to the link I posted above, you no only see that she thinks the evil government is forcing the acceptance of the gay lifestyle (that should be a big homophobic flag) she also states:

"But if SSM is legitimized it makes it almost ‘illegal’ for me to talk about what the Bible says about sexuality and marriage, or to observe the tenets of my religion, which may not, for example, allow my business to cater a gay wedding or even a doctor to perform in-vitro on a same-sex couple. That’s just not right."

Come on folk, she pushing her religious agenda on DC.

Posted by: bobbarnes | February 22, 2010 6:10 PM | Report abuse

I've been reading the National Organization for Marriage's blog in the last couple weeks, and began commenting there, but it seems that NOM moderators don't like to allow comments that disagree with their blatantly homophobic agenda, even when the discourse is completely civil. (Just for example, I've never used the term "homophobic" there.)

Sometimes my comments go through. More often I'm told they are "awaiting moderation." When I go back later to see if they've gone through, they've instead mysteriously disappeared.

I'm not the only person who has noticed this tendency toward censorship there. It seems that this is the kind of limited dialogue that NOM supports.

Posted by: ekm5 | February 23, 2010 10:15 AM | Report abuse

I do have a question. If marriage is not a civil right, then why do you have to secure a license from the state and not religion in order to be legally bound in it? Why is it that you can be legally married and do so before a justice of the peace and it be legal without the intrusion of a church doctrine? Is it not discrimination for a state to deny a right it affords to others on the bases of race, sex, creed, physical disability or sexual orientation?

Is tyranny yet still tyranny even if it is supported by the majority?

I don't have a dog in this hunt, but it seems pretty clear cut to me. Just as we didn't want white men to decide, by majority rule, if woman should have the right to register and vote, so to do we not want dogmatic religious zealots to decide whether a legal union licensed by the state should be denied to a segment of society on the basis of sexual orientation. Irrespective of those dogmatic religious zealots represent the majority of the popular vote.

Posted by: concernedaboutdc | February 23, 2010 3:32 PM | Report abuse

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