A Good Ruling in DC

The Washington DC City Council recently voted to allow marriages between same-sex couples. There was some indignation, Marion Barry predicted it would be "civil war," some preachers got in an uproar and decided they wanted to overrule the council by holding a referendum. Pretty much what you expect, I guess.

The referendum went to court and lost. Here's The Post:

A D.C. Superior Court judge ruled Thursday that same-sex marriage opponents do not have a right to call for a referendum to determine whether such unions should be legal in the District.

The decision, a major victory for gay rights activists, makes it more likely that the District will begin allowing same-sex couples to marry in March.

In the 23-page ruling, Judge Judith N. Macaluso affirmed a D.C. Board of Elections and Ethics decision that city law disallows the ballot proposal because it would promote discrimination against gay men and lesbians. Macaluso also concluded that previous court decisions outlawing same-sex marriage in the District are no longer valid. D.C. judge rules against marriage referendum

There is a kind of fundamental tension between the will of the majority and the rights of minorities. If everything went up for a vote then the laws would simply encode the norms of the community. By electing representatives to debate and decide on new laws we add a layer of prudence, and by hanging all of it on a Constitution that guarantees rights to individuals we take away the majority's ability to force popular norms and customs on nonconformists.

This case of the District's marriage law seems to me to be a perfect instance of how the system was intended to work. You know, it might be that once those preachers got to preaching, a majority of DC residents would go out to vote against the rights of gay citizens to marry the one they love. Maybe most of the people there disapprove of that sort of thing. But guess what: it doesn't matter. The rights of the minority are not up for a vote, they are guaranteed.

Here's the meat of the judge's opinion, as relayed through the morning paper:

In her decision, Macaluso stated the board "properly rejected the proposed initiative" because of the Human Rights Act. The judge also rejected arguments that same-sex marriage should be illegal in the District because of the 1995 Dean v. District of Columbia decision.

In that case, the D.C. Court of Appeals ruled that the city did not have to recognize same-sex marriage because the government's intent to oppose such marriages was clear. Now, Macaluso concluded, the intent of the government in favor of allowing two men or two women to marry is clear.

"These clear manifestations of intent to alter the traditional definition of marriage did not exist when Dean was decided," the judge wrote. "Dean expressly relied upon the absence of such indications in concluding that the Council intended to retain the definition of marriage as occurring only between a man and a woman.

"Under these circumstances, Dean's holding is no longer controlling."

Despite opponents' plans to appeal, they are running out of time to block same-sex marriages in the District. Congress has begun the required 30-legislative-day review of the same-sex marriage law.

City leaders said that, barring intervention by Congress, marriage licenses will be available to same-sex couples around the first week of March.

Nobody expects Congress to do anything to block this one.

Congratulations to the District of Columbia.