WASHINGTON (BP)--District of Columbia citizens do not have the right to vote on an initiative defining marriage as between one man and one woman, a divided D.C. Appeals Court ruled Thursday.

The 5-4 decision was a significant blow to those wanting to place an initiative on the ballot that would reverse the city's "gay marriage" law, which took effect in March. Although the city's charter allows voters to gather signatures for initiatives, the D.C. Board of Elections has rejected all attempts at an initiative defining marriage, saying it would violate the city's Human Rights Act and "authorize discrimination" against homosexuals. The charter is the city's equivalent to a constitution.

The proposed initiative states that "only marriage between a man and a woman is valid or recognized in the District of Columbia."

The city's action has been particularly frustrating for initiative supporters who have watched citizens in other states -- California, Maine, and Florida, among them -- successfully gather signatures for similar initiatives protecting the definition of marriage. Citizens in 31 states have voted on the issue, each time rejecting "gay marriage."

The court's decision could be appealed to the U.S. Supreme Court.

At issue is how broad the city's initiative process is. Initiative backers argue that the charter only prohibits initiatives that would appropriate funds. The city, though, argues the initiative process also can be limited by its Human Rights Act, which bans discrimination based on "sexual orientation." The court agreed.

"Because appellants' proposed initiative would authorize, or have the effect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not a proper subject of initiative," Judge Phyllis D. Thompson wrote for the majority. "Therefore, the Board acted lawfully in refusing to accept the initiative on that basis."

Presidents nominate members of the D.C. Appeals Court, although the 5-4 vote did not break down along political lines. The majority was formed by three of President George W. Bush's nominees and two of President Clinton's. The dissent was comprised of two Bush nominees and two Clinton nominees.

In writing the court's dissent, Chief Judge Eric Washington said the D.C. Council -- which has authority over the Board of Elections -- "exceeded its authority."

"If the Council's powers are as broad as they assert, what is to preclude the Council from imposing additional subject matter limitations on the right of initiative or, indeed, from extinguishing that right altogether?" he asked. "It appears that a candid answer to that question would be 'nothing.' Yet, under our 'constitutional' principles, a Charter right may not be limited or extinguished by ordinary legislation. That may be done only by going through the intentionally-cumbersome process of amending the Charter."

The suit was brought by D.C.-area pastor Harry Jackson, former D.C. delegate Walter Fauntroy and others who were represented by attorneys for the Alliance Defense Fund and StandforMarriageDC.com. A January Washington Post poll found that 59 percent of residents -- including 70 percent of the city's black citizens -- believe the "issue should be put on a city-wide ballot."

"This decision highlights a fundamental issue and controversy in America: Are we going to have government of the people, by the people and for the people or are we going to have government of the judges, by the judges and for the judges?" said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. "This is as clear an example of judicial imperialism as I can remember. In the American Revolution, we threw off the dictatorship of hereditary monarchy. Now it seems we're going to have to revoke the tyranny of lifetime judges."

Austin R. Nimocks, an Alliance Defense Fund attorney who argued the case before the court in May, called the decision a blow to the "right to vote."

"The citizens of the District of Columbia should not have their voices suppressed by the government, but that is exactly what is happening here," Nimocks said. "The decision from the D.C. Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom: the right to vote. We are considering our options to right this wrong, which include asking the U.S. Supreme Court to consider this case."

Barrett Duke, vice president for public policy of the Ethics & Religious Liberty Commission, said the decision and controversy should serve as a warning against the "incremental strategy" used by homosexual activists.

"The court based its decision on the District of Columbia's Human Rights Act, which bars discrimination on the basis of sexual orientation and other factors," Duke said. "The act itself, of course, never mentions that it could be applied to same-sex marriage. It was originally promoted and is written as if it applies solely to such things as employment and housing discrimination. But the radical homosexual activists knew that the language of the act could be applied to other homosexual agenda issues as well."

Duke added, "What happened in D.C. should serve as a reminder to people across the country that the agenda of the radical homosexual movement is to force on the American public complete acceptance of homosexuality and that it is committed to achieving that goal through slow incremental progress that hides the full extent of its motives until it is too late."
--30--
Michael Foust is an assistant editor of Baptist Press.