Lead Opinion
The specific issue before us in this appeal is whether the District of Columbia Board of Elections and Ethics (the “Board”) acted lawfully when it rejected appellants’ proposed initiative measure on the ground that the measure would authorize, or have the effect of authorizing, dis
Appellants’ challenge focuses on the validity of Council legislation that requires the Board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act (a requirement that we refer to herein as the “Human Rights Act safeguard”). Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative. As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA”); (2) the Human Rights Act safeguard is not inconsistent with the Council’s intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council’s legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination; and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination. On the
I. Factual and Procedural Background
On May 5, 2009, the Council passed the Jury and Marriage Amendment Act of 2009 (“JAMA”). D.C. Act 18-70, 56 D.C.Reg. 3797 (May 15, 2009). JAMA amended the District’s marriage laws to provide that the District will recognize lawful, same-sex marriages entered into in other jurisdictions. See D.C.Code § 46-405.01 (2009 Supp.).
On September 1, 2009, appellants — Harry Jackson, Jr., Robert King, Walter Fauntroy, James Silver, Anthony Evans, Dale Wafer, Melvin Dupree, and Howard Butler — filed with the Board their proposed “Marriage Initiative of 2009,” which is the subject of this appeal. Through the proposed initiative, appellants sought to undo JAMA by amending Title 46, Subtitle I, Chapter 4 of the D.C.Code to state: “Only marriage between a man and a woman is valid or recognized in the District of Columbia.” After a public hearing on October 26, 2009, the Board rejected the proposed initiative, finding that it would “authorize[ ], or ... have the effect of authorizing, discrimination” prohibited under the Human Rights Act and therefore was “not a proper subject of initiative.” D.C.Code § l-1001.16(b)(l)(C) (2006).
In the meantime, the Council adopted the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (the “Marriage Equality Act”) upon its second reading on December 15, 2009. D.C. Act 18-248, 57 D.C.Reg. 27 (Jan. 1, 2010). This legislation, which became effective as D.C. Law 18-110 on March 3, 2010, see 57 D.C.Reg. 1833 (Mar. 5, 2010), expanded the definition of marriage in the District to include same-sex couples: “Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited by” District law. D.C.Code § 46-401(a) (Supp.2010); 57 D.C.Reg. 27 (Jan. 1, 2010). Thus, the Marriage Equality Act makes civil marriage available to same-sex couples, just as
By the effective date of the Marriage Equality Act, the Superior Court had ruled on the cross-motions for summary judgment in this litigation. On January 14, 2010, the court granted the District’s motion for summary judgment, rejecting appellants’ argument that the Human Rights Act safeguard provision is an invalid restriction on the right of initiative and agreeing with the Board that appellants’ proposed initiative would authorize discrimination. This appeal followed. We ordered that the appeal be heard en banc and granted motions by amici to file briefs.
II. Legal Framework
An understanding of the powers of the Council under the Home Rule Act, of the District Charter amendment that created the rights of initiative and referendum, and of the nearly contemporaneous legislation that the Council passed, is critical to our resolution of this appeal. Accordingly, we describe these matters in some detail.
A. The Home Rule Act
The Constitution vests Congress with the authority “[t]o exercise exclusive Legislation” over the District. U.S. Const, art. I, § 8, cl. 17. In 1973, Congress passed the District of Columbia Self-Government and Government Reorganization Act, Pub.L. No. 93-198, 87 Stat. 777, commonly known as the “Home Rule Act.” Title IV of the Home Rule Act sets out the
Under the Home Rule Act, the Council is empowered to pass legislation by a majority vote after two readings, at least thirteen days apart. See D.C.Code § 1-204.12(a). In general, if the Mayor does not veto an act of the Council within ten days (or if the Council overrides a veto by a two-thirds vote), Council-passed legislation becomes effective after a thirty-legislative-day layover in Congress, unless disapproved by concurrent resolution. D.C.Code § l-206.02(c)(l) (2006).
Part E of Title VII of the Home Rule Act set forth amendments to the District of Columbia Election Act, D.C.Code §§ 1-1101 — 1-1115 (1973), and also contained a provision, section 752, entitled “District Council Authority Over Elections.” Section 771(e) of the Home Rule Act provided that “Part E of Title VII shall take effect on the date on which title IV is accepted by a majority of the registered qualified electors in the District voting on the charter issue in the charter referendum.” Thus, section 752 (codified as D.C.Code § 1-207.52 (2006)), became effective upon ratification of the Charter. Section 752 provides that “[njotwithstanding any other provision of this Act or of any other law, the Council shall have authority to enact
B. The Charter Amendment Act
The legislative history of the Home Rule Act shows that Congress considered including in the Act a provision that would have directly conferred on the people of the District the power to propose and enact legislation through an initiative process. See Home Rule Legislation: Hearing Before the Comm. on the Dist. of Columbia on S. 1603 and S. 1626, 92d Cong. 161 (1971) (hereinafter, “Hearing on S. 1603 and S. 1626”). As finally enacted, however, the Home Rule Act did not provide for the power of initiative (or of referendum). Section 303 of the Act did, however, provide that the Charter may be amended “by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification.” D.C.Code § 1-203.03(a) (2006).
The CAA, codified at D.C.Code §§ 1-204.101 — 1-204.115, provides in its definitional section that “[t]he term ‘initiative’ means the process by which the electors of the District of Columbia may propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval.” Id. § l-204.101(a).
C. The Initiative Procedures Act
On April 10, 1978, a month after the CAA became effective, the Council introduced implementing legislation as Bill 2-317. D.C. Council, Comm, on Gov’t Operations, Report No. 1 on Bill 2-317 at 1 (May 3, 1978) (hereinafter, “IPA Report”). Many of those who testified before the Council on the bill expressed support for a human rights safeguard in the implementing legislation, and the Committee Report notes that, subsequent to the public hearings on the bill, the Council received “myriad telephone calls” in support. IPA Report, at 4-6. Bill 2-317 was reintroduced as Bill 3-2 in January 1979. Convention Ctr. I,
D. The Human Rights Act
In 1973, the pre-Home Rule District of Columbia Council promulgated Title 34 of the District of Columbia Rules and Regulations, known as the “Human Rights Law” (34 DCRR §§ 1.1-35.3 (1973)). Reg. No. 73-22, 20 D.C.Reg. 345 (Nov. 17, 1973). Through the Human Rights Law, the pre-Home Rule Council declared that “[e]very individual shall have an equal opportunity to participate ... in all aspects of life,” 34 DCRR § 9.1, and it announced an intent “to secure an end ... to discrimination for any reason other than that of individual merit, including, but not limited to discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.” Id. § 1.1. The pre-Home Rule Council declared that it was using its “prerogative to legislate broadly,” and that the Human Rights Law was intended to be “far-reaching.” D.C. Council, Econ. Dev., Labor & Manpower Comm., Report on Title 34 at 2 (August 7, 1973) (hereinafter, “Human Rights Law Report”). The pre-Home Rule Council was explicit that it adopted the Human Rights Law pursuant to its police powers, explaining that Title 34 “shall be deemed an exercise of the police power of the District of Columbia, necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property in the District of Columbia.” 34 DCRR § 1.3.
The Human Rights Act, which the Council adopted on July 26,1977, “has remained substantially unchanged since 1977, having been amended only to add new classes to the list of those already protected by the Act.” Blodgett,
III. The Parties’ Contentions
Appellants contend that by refusing to accept their proposed initiative, the
IV. Analysis
A. The Human Rights Act Safeguard Is Consistent with the Intent of the CAA.
We begin our analysis with the observation that, although District citizens’ right of initiative is “very broad,” Hessey,
1. The Human Rights Act Safeguard Is Not Inconsistent with the Relevant Language of the CAA, Which is Ambiguous.
a. The Definition of “Initiative”
The words used in a statute “are the primary, and ordinarily the most reliable, source of interpreting the meaning” of the statute. Pub. Citizen v. U.S. Dep’t of Justice,
Although on its face this language may appear to denote that there is but one limit on use of the initiative process, the context shows that this is not the case. The Charter amendment that established the right to initiative must be read in conjunction with the Home Rule Act, which, although conferring on the Council broad legislative authority, makes clear that the legislative authority is subject to limits implied by the United States Constitution and to the enumerated limits on that legislative authority that Congress set out in Title VI of the Home Rule Act. See D.C.Code §§ 1-203.02, 1-206.02; Convention Ctr. Ill,
The other relevant language of the CAA is section 1-204.107, the CAA provision that directed the Council to “adopt such acts as are necessary to carry out the purpose of this subpart within 180 days.”
Focusing more particularly on the word “purpose” in the “necessary to carry out the purpose” clause of section 1-204.107, appellants argue that the sole purpose of the CAA was to establish the right of initiative and referendum and that, by authorizing the Council to enact legislation to carry out that purpose, the CAA must be understood to have authorized the Council to do no more than to adopt rules to facilitate citizens’ use of the new power. However, they cite no support for their view that the CAA referred only to this mechanical purpose rather than to the concerns and objectives that motivated the Council to pass the act that became the CAA.
That said, we agree with the District that our role is not to second-guess the Council’s judgment and to decide whether there is a sufficiently strong connection
In short, analysis of the text of the CAA does not enable us to agree with appellants that the Council contravened the express language of the CAA in enacting the Human Rights Act safeguard. And, quite the contrary, other factors persuade us that the Council acted in a manner consistent with its intent when it passed the CAA.
2. The Council’s Interpretation of the CAA, Which is Reflected in the IPA Human Rights Act Safeguard, Is Entitled to Substantial Deference.
Although the language of the CAA does not tell us whether the Council intended that the CAA-implementing legislation could set out additional limitations on the right to initiative, what the Council did in enacting the IPA provides an authoritative interpretation of the intent and meaning of the CAA. This follows from the principle that “a contemporaneous legislative exposition of the Constitution [or, by analogy, the Charter Amendments] when the ... framers ... were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution’s] provisions.” Eldred v. Ashcroft,
That is not to say that we must accept any provision that the Council enacted as part of the IPA; we have not hesitated to strike down a provision of the IPA where it squarely conflicted with a provision of the CAA. See Price v. District of Columbia Bd. of Elections & Ethics,
That there was more than one possible interpretation of the relevant provisions of the CAA was made evident at the outset, when, during the debate on the IPA, both the Corporation Counsel and the General Counsel to the Council advised that the Council did not have the power to impose the Human Rights Act safeguard.
3. We Accept the Council’s Interpretation of the CAA As Reflected in the IPA Because It Is Consistent with the Concerns and Objectives That the Council Contemporaneously Emphasized as Having the “Highest Priority.”
The District of Columbia Charter is a “constitutional analog.” Wash. Home Ownership Council,
Almost immediately after passage of the original version of the CAA in May 1977, the Council turned its efforts toward introducing and passing (on July 26,1977) a bill that re-enacted the Human Rights Law as the Human Rights Act of 1977.
We believe it is reasonable to assume that the Council did not come by these strong views only in June 1977 (when the bill that became the Human Rights Act was introduced), and that Council members held these views as they passed the original version of the CAA the previous month, in May 1977. And, in any event, the Council had forcefully articulated these views before it passed the amended version of the CAA (on November 1, 1977) that was presented to voters. This history and the strong language that the Council used when it re-enacted the District’s human rights law (and when it included the Human Rights Act safeguard in the bill that the Council Committee on Government Operations reported to implement the CAA) inform our analysis. In light of them, we find it inconceivable that the Council would have intended to permit individuals to use the initiative process to circumvent the human rights law, which the Council had just affirmed had the “highest priority,” Human Rights Act Report, at 3, and which, we have recognized, “was enacted to aid ... the public at large.” JBG Props., Inc. v. District of Columbia Office of Human Rights,
Our recognition of this implied Human Rights Act safeguard does not portend a dilution of the important right of the electorate to propose laws. In the thirty-plus years since passage of the IPA, the Council has never attempted to impose any further legislative limitation on the right to initiative or referendum. The fact that it has not done so weighs heavily against the possibility that any further restrictions on the right of initiative are implied in the CAA.
The legislative history of the IPA reflects that when the Council set about crafting provisions to carry out the purposes of the CAA, it focused on the Supreme Court’s opinion in Reitman, which the Committee on Government Operations Report discussed in some detail. IPA Report, at 9-11. In Reitman, the Supreme Court affirmed a ruling of the Supreme Court of California striking down, as viola-tive of the Equal Protection Clause of the Fourteenth Amendment, Proposition 14,
Having studied Reitmcm, the Council Committee on Government Operations came to the view that for the Board to accept an initiative or referendum that would have the effect of discriminating, would involve the District government in condoning and assisting with discrimination.
The Council’s acceptance of the Committee’s recommendation was consistent with the “highest priority” objective that the Council expressed during the same time period when it crafted the CAA. Because the Human Rights Act safeguard is consistent with that objective, we accept the Council’s legislative interpretation, reflected in the IPA, that the safeguard im
B. Section 752 Gave the Council Authority to Direct the Board to Refuse to Accept Initiative and Referendum Measures That Would Authorize or Have the Effect of Authorizing Discrimination.
We further conclude that the Council was not obliged to allow initiatives that would have the effect of authorizing discrimination prohibited by the Human Rights Act to be put to voters, and then to repeal them, or to wait for them to be challenged as having been improper subjects of initiative, should they be approved by voters. Rather, the Council could legislate, as it did through the IPA, that the Board must refuse to accept initiatives and referenda that would authorize prohibited discrimination. We reach this conclusion because the CAA did not provide the Council its exclusive grant of authority to enact laws on matters relating to the initiative and referendum process. Rather, as already described, section 752 of the Home Rule Act conferred on the Council, “[notwithstanding any other provision of this [Act] or of any other law, ... authority to enact any act or resolution with respect to matters involving or relating to elections in the District.” D.C.Code § 1-207.52 (emphasis added).
As a provision of the Home Rule Act not subject to amendment by the Council or by the voters of the District, section 752 remains one of the provisions governing District affairs. See D.C.Code § l-203.03(a) (providing that only the District Charter as set forth in Title IV of the Home Rule Act is subject to the Charter-amending procedure); D.C.Code § 1-206.02 (providing, per section 602 of the Home Rule Act, that the Council “shall have no authority to pass any act contrary” to the provisions of the Home Rule Act except as specifically provided in the Home Rule Act); and D.C.Code § l-207.61(a) (2006) (providing
At the same time, “a statute generally should be read to give effect, if possible, to every clause,” Heckler v. Chaney,
At the time the Home Rule Act was passed, the Election Act mandated that the Board would be an independent agency. Specifically, the Election Act provided (and still provides, see D.C.Code § 1-1001.06(a) (2006)), that “[i]n the performance of its duties, the Board shall not be subject to the direction of any non-judicial officer of the District.” D.C.Code § 1-
For all the foregoing reasons, we are unpersuaded by appellants’ contention that the Council either overstepped its authority or acted in contravention of the CAA when it imposed the Human Rights Act safeguard of the IPA.
Appellants further contend that even if the Human Rights Act safeguard is valid, their proposed “Marriage Initiative of 2009” does not run afoul of the restriction. They assert that this court’s decision in Dean v. District of Columbia,
The Board urges us to uphold its determination, arguing in its brief that the proposed initiative (providing that “[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia”) would render not only JAMA but also the Marriage Equality Act “null and void and would consequently strip all same sex married couples of their attendant rights and responsibilities of marriage in the District of Columbia” based solely on the “gender and/or sexual orientation of the spouses.” In its November 17, 2009 Memorandum Opinion and Order, the Board distinguished Dean and reasoned as follows:
While neither the HRA [i.e., the Human Rights Act] nor its legislative history explicitly mentions same-sex marriage, it is without question that the HRA must “be read broadly to eliminate the many proscribed forms of discrimination in the District.” Since JAMA’s enactment, the District recognizes same-sex marriages that have been properly entered into, performed, and recognized by other jurisdictions. This did not exist when Dean was decided. Consequently, couples who fall within JAMA’s purview are entitled to the same benefits of marriage that are afforded heterosexual married couples, and the denial of these benefits to married couples on the basis of the sexual orientation of the individuals who comprise the couples now constitutes a “proscribed form of discrimination.” It is clear that this result is the intent of the Council, which voted 12-1 to pass JAMA. The Initiative seeks to deny recognition to JAMA marriages on the basis of the sexual orientation of the individuals who comprise the couples. As a result, the Board finds, and both the District’s Attorney General and General Counsel for the Council agree, that the Initiative authorizes or would authorize discrimination proscribed by the HRA and is therefore not a proper subject for initiative.
Id. at 11.
We agree with the Board’s interpretation of Dean, its view that the Human Rights Act analysis in Dean has limited continuing significance, and its conclusion that the proposed initiative would have the effect of authorizing discrimination on the basis of sexual orientation.
Turning to the Human Rights Act claim, the Dean court noted that the version of the Human Rights Act in effect at the time made it “an unlawful discriminatory practice” for one to “deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations,” if the denial is “wholly or partially for a discriminatory reason based on the ... sex ... [or] sexual orientation ... of any individual.” Id. at 318-19. The court acknowledged the appellants’ argument that “when the Marriage License Bureau, a place of public accommodation under the Clerk of the Superior Court, refuses to issue marriage licenses to same-sex couples, gays and lesbians are unlawfully denied an ‘equal opportunity’ to participate in marriage, an important ‘aspect of life.’ ” Id. at 318. The court assumed, “without formally deciding,” that the Marriage License Bureau is a “place of public accommodation” (in which discrimination was specifically prohibited under the Human Rights Act). Id. at 319.
[W]e cannot conclude that the Council ever intended to change the ordinary meaning of the word “marriage” simply by enacting the Human Rights Act. Had the Council intended to effect such a major definitional change, counter to common understanding, we would expect some mention of it in the Human Rights Act or at least in its legislative history.... There is none.... [A]s we have seen^ — -“marriage” requires persons of opposite sexes; there cannot be discrimination against a same-sex marriage if, by independent statutory definition extended to the Human Rights Act, there can be no such thing.
Id. at 320.
While the Dean court unambiguously concluded that the Marriage Bureau’s implementation of the District’s longstanding marriage statutes, and the definition of marriage reflected therein, did not amount to discrimination prohibited by the Human Rights Act, there is no dispute that the landscape has changed dramatically. Through JAMA and the Marriage Equality Act, the Council has both acknowledged and endorsed an expanded definition of marriage to include same-sex unions. As the briefs inform us, several other jurisdictions, too, currently authorize same-sex marriage. The question now is whether an initiative measure that would deny recognition to individuals who have entered or wish to enter into same-sex marriages in the District or elsewhere, and would deprive them of the benefits and obligations that come along with such recognition, would authorize or have the effect of authorizing discrimination on a basis prohibited by the Human Rights Act. We have no difficulty concluding that the proposed initiative would do so.
We must address, however, the question of whether the Human Rights Act safeguard of the IPA required the Board to evaluate a proposed initiative under the Human Rights Act of 1977- — the legislation specified in the IPA — rather than under the version of the Human Rights Act at the time of the Board’s determination. As the District’s brief acknowledges, under general rules of statutory construction, a statute that specifically refers to another statute “incorporates the provisions referred to ... as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments.” 2B Norman J. Singer, Sutherland Statutes and Statutory Construction § 51.08 (7th ed. 2008) (italics added). We are satisfied that the italicized exception rather than that general rule, is applicable here. The legislative history of the IPA guides our interpretation. As reported by the Committee on Government Operations, Bill 2-317 prohibited initiatives that discriminated “by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.” Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, regarding Supplemental comments on Bill 2-317, the “Initiative, Referendum, and Recall Procedures Act of 1978,” at 1 (June 2,1978) (quoting Amendment to § 212 of Bill No. 2-317). As explained to members of the Committee in a memorandum from the Legislative Assistant to the Chairman, the amendment to the bill when it was re-introduced as Bill 3-2, stating that “the Board of Elections [and] Ethics cannot accept any petitions which authorize discrimination prohibited under the Human Rights Act of 1977,” was
In light of that documentation, we regard the IPA’s reference to the Human Rights Act of 1977 as a shorthand! indication that the Council meant to require the Board to perform its gatekeeper function by determining whether a proposed initiative would authorize discrimination of the type currently prohibited by the District’s human rights law, not by looking only to that law as it existed in 1977. We see no evidence that the Council “intended by such specific reference[] [to the Human Rights Act of 1977 and to its D.C.Code citation] any limitation on subsequent amendments which ameliorated the remedial scheme.” EEOC v. Chrysler Corp.,
V. Conclusion
The Council acted within its authority under the CAA and the Home Rule Act in enacting the Human Rights safeguard of the IPA and in directing the Board not to accept initiatives that contravene that safeguard. 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. Therefore, the Board acted lawfully in refusing to accept the initiative on that basis. Accordingly, the judgment of the Superior Court upholding the Board’s determination is
Affirmed.
Notes
. The statute states: “A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited by §§ 46-401.01 through 46-404, and has not been deemed illegal under § 46-405, shall be recognized as a marriage in the District.” Id.
. In its entirety, D.C.Code § 1-1001.16(b)(1) (2006) reads:
Upon receipt of each proposed initiative or referendum measure, the Board shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative or referendum, whichever is applicable, under the terms of title IV of the District of Columbia Home Rule Act, or upon any of the following grounds:
(A) The verified statement of contributions has not been filed pursuant to §§ 1-1102.04 and 1-1102.06;
(B) The petition is not in the proper form established in subsection (a) of this section;
(C) The measure authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2; or
(D) The measure presented would negate or limit an act of the Council of the District of Columbia pursuant to § 1-204.46.
Id. (italics added). The italicized language, section 1-1001.16(b)(1)(C), sets forth what we refer to as the Human Rights Act safeguard.
. To that end, the Marriage Equality Act explicitly provides that:
(c) No priest, imam, rabbi, minister, or other official of any religious society who is authorized to solemnize or celebrate marriages shall be required to solemnize or celebrate any marriage.
(d) Each religious society has exclusive control over its own theological doctrine, teachings, and beliefs regarding who may marry within that particular religious society's faith.
(e)(1) Notwithstanding any other provision of law, a religious society, or a nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs.
(2) A refusal to provide services, accommodations, facilities, or goods in accordance with this subsection shall not create any civil claim or cause of action, or result in a District action to penalize or withhold benefits from the religious society or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society.
D.C.Code § 46-406(c)-(e) (Supp.2010).
. The Superior Court, this court, and Chief Justice Roberts, sitting as Circuit Justice, declined to stay the effective date of the Marriage Equality Act. See Jackson v. District of Columbia Bd. of Elections & Ethics, - U.S. -,
. Sections 601 to 603 expressly restrict the Council's power to legislate in several specific areas. See D.C.Code §§ 1-203.02, 1-206.02(a), 1-206.03(c) (2006). The Council has "no authority to pass any act contrary to the provisions of [the Home Rule Act],” except as specifically provided in the Act. Id. § l-206.02(a). The Council may not approve a budget in excess of estimated revenues. Id. § 1-206.03(c). In addition, the Council may not "(1) Impose any tax on property of the United States or any of the several states; (2) Lend the public credit for support of any private undertaking; (3) Enact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District; (4) Enact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts); (5) Impose any tax on the whole or any portion of the personal income, either directly or at the source thereof, of any individual not a resident of the District ...; (6) Enact any act, resolution, or rule which permits the building of any structure within the District of Columbia in excess of the height limitations [established by Congress]; (7) Enact any act, resolution, or regulation with respect to the Commission on Mental Health; [or] (8) Enact any act or regulation relating to the United States District Court for the District of Columbia or any other court of the United States in the District other than the District courts, or relating to the duties or powers of the United States Attorney or the United States Marshal for the District of Columbia.” D.C.Code § l-206.02(a)(l)-(8).
. Section 303 specifically provides, however, that the portions of Title IV relating to establishment of the Council, the Office of the Mayor, and the judicial system as the tripartite form of government are not subject to amendment (except by Congress).
The House-passed Home Rule bill would have permitted initiative petitions for Charter amendments, while the Senate bill would have required all Charter amendments to originate with Congress. The Conference resolution was to permit the Council alone to originate Charter amendments. See H.R.Rep. No. 95-890, at 2 (1978) (Conf.Rep.).
. Section 1-204.101(b) states that "[t]he term 'referendum' means the process by which the registered qualified electors of the District of Columbia may suspend acts of the Council of the District of Columbia (except emergency acts, acts levying taxes, or acts appropriating funds for the general operation budget) until such acts have been presented to the registered qualified electors of the District of Columbia for their approval or rejection.” Id.
. For example, in September 1982, citizens adopted an initiative providing for "severe mandatory minimum sentences for, among others, persons who committed offenses while armed with a pistol or firearm.” Lemon v. United States,
. The pertinent language of the IPA is set out in note 2 supra.
. The pre-Home Rule Council also explained that:
The District of Columbia Council hereby finds that the failure to provide equal opportunity to enjoy a full and productive life, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care, not only threatens the rights and proper privileges of its inhabitants, but menaces the institutions and foundations of a free democratic society; and threatens the lives, limbs, health, comfort, quiet of all persons and the protection of all property in the District.
34 DCRR§ 1.3.
In enacting the Human Rights Law, the pre-Home Rule Council borrowed the lan
. Thus, barely a month after the Council passed the original version of the CAA and before it passed the final version that went to the voters, the Council took action to reinforce the District’s far-reaching Human Rights Law. Bill 2-179, which became the Human Rights Act, was sponsored by all thirteen Council members. See Memorandum from Anglea B. Howard, Committee on Public Services and Consumer Affairs, to Robert A. Williams at 1 (regarding Substitution of Pages of Committee Report of Bill 2-179, The Human Rights Act of 1977) (July 7, 1977).
. Appellants assert that "voters in thirty-one states have participated in the initiative and/or referendum process to voice their opinion on ... the definition of marriage," and urge that the citizens of the District "are also entitled to voice their views through their votes on this important issue.”
. Appellants also assert that citizens of the District may not be subjected to a limit on their ability to propose legislation that diminishes their power relative to that of the Council because, in the process of ratifying the CAA, they "ma[de] themselves coextensive lawmakers with the D.C. Council.” For this point, appellants rely heavily on this court’s statement in Atchison v. District of Columbia that the power of initiative is "coextensive with the power of the legislature to adopt legislative measures.”
Moreover, what we said in Convention Ctr. Ill was that “absent express or implied limitation, the power of the electorate to act by initiative is coextensive with the power of the legislature to adopt legislative measures.”
. For this reason, we have previously cautioned against “equating the initiative right here with initiatives under the simpler governmental structures of the states.” Convention Ctr. III,
. See, e.g., McGee v. Sec’y of State,
. As this discussion implies, there is no federal constitutional right to initiative. See Molinari v. Bloomberg,
. The task before us is therefore fundamentally different from the task we faced in District of Columbia v. Wash. Home Ownership Council, Inc.,
. H.R.Rep. No. 95-891, at 15.
. Appellants rely on the ballot language that voters saw and approved as indicative of the “plain" meaning of the CAA. We reject this argument. Appellants are correct that the ballot language did not tell voters that the initiative process could be limited. But neither did the ballot language inform voters about the appropriations restriction expressly stated in the CAA, or about the enumerated limitations on legislative authority set out in Title VI of the Home Rule Act, or about the restrictions implied by the U.S. Constitution. The ballot read:
The Initiative and Referendum Charter Amendment
Authorizes 5% or more of the city’s registered voters (with 5% from each of at least 5 city wards) to propose laws and enact them by public vote or to repeal laws previously enacted by the Council of the District of Columbia by petitioning the Board of Elections and Ethics to conduct a public vote for such purposes. The Board of Elections and Ethics shall place such proposals on the ballot for approval or rejection.
The above would not go into effect until October 1, 1978.
Thus, the ballot asked voters to approve creation of the right to legislate by initiative, but did not ask them to vote as to the scope of the initiative power.
. The Superior Court addressed at some length appellants' argument that "[t]he expression of only one subject-matter exclusion, indicates that all other subjects are proper for initiatives.” Order Granting District of Columbia's Motion for Summary Judgment and Denying Petitioners' Motion for Summary Judgment, at 6 (Jan. 14, 2010) (hereinafter, "Superior Court Order”). As the court recognized, appellants’ argument appears to apply the interpretive canon "expressio unius est exclusio alterius." Id. at 10. As both the Supreme Court and this court have explained, however, that canon “is an aid to construction, not a rule of law.” Howard Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs.,
And, quite the contrary, during the Council debate upon the second reading of the CAA, Council Chair Tucker, to expedite a final vote on the legislation, assured Council members that the matter of safeguards (including, as Councilmember Wilson put it, provisions to “protect the citizens against special interests,” and possibly, as Councilmember Shackleton thought necessary, referendum expenditure limits) would be addressed and debated in connection with implementing legislation to follow. Final Reading of Bill 2-2, "The Initiative, Referendum, and Recall Charter Amendments of 1977,” at 15, 1619 (May 17, 1977); First Reading of Bill 2-2, "The Initiative, Referendum, and Recall Charter Amendments of 1977,” at 37 (May 3, 1977).
. Emphasizing this language, appellants cite to cases from other jurisdictions in which courts, construing language directing the legislature to enact legislation to implement initiative or referendum provisions, have ruled that the legislature could impose only procedural rules, not additional substantive restrictions. We do not find these cases helpful, because none of them involved the broad "necessary to carry out the purpose” language used in the CAA. Further, the cases generally involve state constitutional provisions that (unlike the CAA) are self-executing, such that all that is left to the legislature is to specify the form of the referendum or initiative petition, see, e.g., Loonan v. Woodley,
. Indeed, from the language of section 1-204.107, it appears that, rather than resolve the issue of whether to express in the CAA any additional restrictions on the right to initiative and referendum, the Council decided to "evade that point and establish a legislative construction of the [Charter amendment].” Myers v. United States,
. The "necessary to carry out the purpose” language of section 1-204.107 also is strikingly similar to the "Necessary and Proper” clause of Article I, section 8, cl. 18 of the Constitution, which the Supreme Court has construed as broadening the power of Congress. See, e.g., United States v. Comstock, - U.S. -,
. Additionally, the fact that in the CAA the Council reserved to itself the task of adopting implementing rules, rather than assign that responsibility to the Board, suggests that the Council contemplated that deciding on the rules "necessary to carry out the purpose” of the CAA could entail a balancing of policy considerations that was more suited to legislative resolution than to administrative decision-making. In commenting on the bill that became the CAA, the Board sought "a general grant of rulemaking authority to carry out the processes if approved by the voters.” CAA Report, at 3; H.R.Rep. No. 95-890, at 9 (italics added); H.R.Rep. No. 95-891, at 8 (italics added). By contrast, as enacted by the Council, the CAA directs the Council to adopt such acts as are necessary "to cany out the purpose ” of the CAA. The difference in language is striking. See also D.C.Code § 1-1021.02 (2006) (IPA provision that directed the Board to "issue rules and regulations to effect the provisions of” the IPA) (italics added).
.Our dissenting colleagues refer to the preamble to the CAA as printed in the D.C. Statutes-at-Large ("To amend the Charter of the District of Columbia to provide for the power of initiative, referendum, and recall,” 1978 D.C. Stat. 33) and argue that this re
. That this was a purpose that the Council likely had in mind when it passed the CAA also is suggested by the legislative history of the Home Rule Act, in which there were discussions of the initiative, referendum and recall processes as means of assuring that elected officials remained responsive to the electorate. See, e.g., Hearings before the Subcommittee on Government Operations of the Committee on the District of Columbia, 93 d Cong.11 (1978) (statement explaining that there was probably no need for these powers since Council members would be made "additionally responsive” by their then-proposed two-year terms and since there would continue to be "Federal Government oversight” and “the continual restraining effect of the federal presence").
. Indeed, such reasoning appears to be implicit in the Council's reference, in the IPA Report, to Justice Douglas’s concurrence in Reitman v. Mulkey,
Implicit in our statement that the Council could reasonably have thought that the Human Rights Act safeguard of the IPA was necessary to carry out the purpose of the CAA is the point that, if we could conceive no rational connection between the purpose of the CAA and the Human Rights Act safeguard, we would have a basis for concluding that this provision of the IPA falls outside the authority conferred by the CAA. The same would be true if we concluded that the Human Rights Act safeguard conflicts with the language of the CAA. Thus, we reject the District’s argument that the issue presented in this appeal is a nonjusticiable political question for lack of any judicially manageable standard.
. Id. at 1956 (explaining that in the "Necessary and Proper” Clause, "necessary” does not mean "absolutely necessary”; rather, the clause gave Congress "power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s 'beneficial exercise’ ”); accord McCulloch,
. Ten of the thirteen Council members who voted in favor of the CAA were still on the Council when the IPA was passed in March 1979, and all ten voted in favor of enactment; an eleventh, Marion Barry, was still on the Council when the bill that became the IPA was introduced in April 1978, and later, as then-Mayor, signed the IPA into law.
. Myers,
. Cf. Winters v. Ridley,
. See also Winters,
.For example, the Office of Corporation Counsel opined that ”[a]ny substantive restrictions on the rights of the voters ... are contrary to [the CAA] and, hence, are void and of no effect,” Supplemental Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, Office of the Corporation Counsel to Judith W. Rogers, Special Assistant for Legislation, at 2 (June 2, 1978) (3 Op. C.C.D.C. 102, 103 (1978)); see also Memorandum from Edward B. Webb, Jr., General Counsel to Council Members, at 2 (June 7, 1978) (opining that the Human Rights Act safeguard "engrafts ... a new re
. And, although a few Council members questioned whether the IPA restriction on re-ferenda dealing with any budget item (including capital budget items) comported with the CAA, see Second Reading of Bill 3-2, "Initiative, Referendum, and Recall Procedures Act of 1979,” Excerpt at 710, 15 (Mar. 27, 1979), we see no evidence that any Council member thought that the Human Rights Act safeguard contravened the CAA. Thus, we see "no cause to suspect that a purpose to evade” the CAA mandate prompted the Council to adopt the Human Rights Act safeguard. Eldred,
. The particular facts discussed in Myers again are instructive. The opinion recounts that under the Articles of Confederation, the states’ union "had not worked well,” in part
. The Mayor signed the Human Rights Act into law on September 28, 1977.
. Both the Human Rights Law and the Human Rights Act contained language nearly identical to the following current provision of the Act:
(a) Whenever it appears that the holder of a permit, license, franchise, benefit, or advantage issued by any agency or authority of the government of the District is a person against whom the Office has made a finding of probable cause [that the holder is violating the Human Rights Act] pursuant to § 2-1403.05, the Office, notwithstanding any other action it may take or may have taken under the authority of the provisions of this chapter, may refer to the proper agency or authority the facts and identities of all persons involved in the complaint for such action as such agency or authority, in its judgment, considers appropriate, based upon the facts thus disclosed to it.
(b) The Commission, upon a determination of a violation of any of the provisions of this chapter by a holder of, or applicant for any permit, license, franchise, benefit, exemption, or advantage issued by or on behalf of the government of the District of Columbia, and upon failure of the respondent to correct the unlawful discriminatory practice and comply with its order, in accordance with § 2-1403.15(a), shall refer this determination to the appropriate agen*110 cy or authority. Such determination shall constitute prima facie evidence that the respondent, with respect to the particular business in which the violation was found, is not operating in the public interest. Such agency or authority shall, upon notification, issue to said holder or applicant an order to show cause why such privileges related to that business should not be revoked, suspended, denied or otherwise restricted.
D.C.Code § 2-1403.17(a), (b) (2007).
. Mendota Apartments v. District of Columbia Comm’n on Human Rights,
. Cf. Amoco Prod. Co. v. Vill. of Gambell,
. See also Filippo v. Real Estate Comm'n of the District of Columbia,
. It may be asked why, then, did the Council not state a human rights restriction in the CAA. We addressed a similar question in At-chison, where the issue was whether the Council's failure to include in the CAA a provision that would have granted the Council the express power to amend or repeal an initiative act meant that the Council had no such power.
.Cf. Printz,
. Such involvement and complicity, the Council doubtless realized, could not be avoided by a post-election repeal of a discriminatory measure; rather, the involvement of the Board and the expenditure of District funds to put such an initiative on the ballot would constitute the very involvement that the Council believed improper and would be contrary to the fundamental values expressed in the Human Rights Act.
. As discussed earlier, the Human Rights Law originated as a police-power regulation, deemed "necessary for the protection of lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the District of Columbia.” D.C.Code § 1-303.03 (2006). When the Council included the Human Rights Act safeguard in the IPA, recent events would have afforded the Council good reason to anticipate that an initiative or referendum that would have the effect of authorizing discrimination could be a threat to the peace and to life and limb. It was widely reported in the press that, in 1977, Dade County, Florida had an ordinance that prohibited discrimination on the basis of sexual orientation. Activist Anita Bryant led a prominent campaign to repeal the ordinance, which was successful during the election held on June 7, 1977. The press reported that the campaign provoked violent clashes between proponents and opponents of repeal. See, e.g., "Gay Rights Showdown in Miami,” TIME, June 13, 1977, http://www.time.com/ time/magazine/article/0,9171,918998-2,00. html (last visited July 13, 2010) (noting, inter alia, that a campaign worker was hospitalized after a beating). The Washington Post reported that the bitter five-month campaign leading up to the vote on the Dade County referendum was "one of the most emotionally charged ... in recent memory, with near hysteria on both sides of the issue.” Mary Russell, “Gay Rights Loses 2-1 in Miami Law,” Washington Post, June 8, 1977, section A 4, col. 1. An editorial cartoon in the paper captured the atmosphere of violence, depicting supporters of Bryant throwing rocks at supporters of the anti-discrimination ordinance. Washington Post, June 10, 1977, section A 26, col. 1.
. We note, as Chief Justice Roberts did when he declined to stay the effective date of the Marriage Equality Act, that when the IPA was passed (with the not-easily overlooked Human Rights Act safeguard), the legislation laid over before Congress for thirty legislative days without disapproval by either house. That "Congress ... chose[] not to act” is “of course not determinative of the legal issues,” but does "weigh against appellants’ position” that this obviously important and substantive provision of the IPA conflicted with the CAA. Jackson,
. We are satisfied that initiatives and refer-enda are “matters involving or relating to elections" within the ordinary meaning of the word "election.” Section 412(b) of the Home Rule Act authorized the Council to call "[a] special election ... by resolution of the Council to present for an advisory referendum vote of the people any proposition upon which the Council desires to take action.” D.C.Code § 1-204.12(b) (italics added). The amended Charter specifically refers to a referendum as a "referendum election.” D.C.Code § 1-204.102(b)(1). The D.C.Code provisions relating to initiatives and referenda are set out in Title 1, Chapter 10, Subchapter I of the Code, entitled "Regulation of Elections.” In light of these usages, we see no reason not to recognize that the initiative process, like the referendum process, entails an "election.” Thus, we conclude that section 752 gave the Council authority to enact laws with respect to the initiative (and referendum) election process.
This does not mean that the Council could have conferred legislative authority on citizens of the District without using the Charter-amending procedure specified in the Home Rule Act (although the Council did consider establishing an initiative process as part of a set of initiatives concerning election law reform. See H.R.Rep. No. 95-890, at 9). Until the CAA was adopted, laws proposed by citizens were not “matters ... relating to elections.” But once the rights to initiative and referendum had been created, the Council could rely on section 752 to legislate with respect to the conduct of initiative and referendum elections.
. Section 752 appears to have originated as section 742 of a House bill, H.R. 9056, 93d Cong. 109110 (1973), and thereafter was included in a later bill, H.R. 9682, 93d Cong. 131 (1973), as section 752. The record of the Senate hearings shows that Congress was urged to leave to the Council "important nitty-gritty questions” such as whether ex-felons would be permitted to vote and whether there could be a durational residency requirement for voting (the constitutionality of which was in question). See Hearing on S. 1603 and S. 1626, 92d Cong. 222, 228. Congress was urged to "make only those changes” to the Election Act that were "absolutely necessary to enable the first election to be held,” leaving it to the Council or Congress later to make "a thorough revision.” Id. at 231. The Report of the Committee on the District of Columbia on H.R. 9682 together with Dissenting Views, 93d Cong., 1st Sess. (Sept. 11, 1973) includes a "Dissenting Commentary on Significant Provisions of H.R. 9682.” H.R. Rep. 93-482, at 141 (1973). That commentary asserts that section 752 "would permit the local government to exempt all District employees from the Hatch Act, which currently prohibits employees of the Federal and District Governments from taking an active part in political management or in political campaigns.” Id. at 165 (internal quotation marks omitted).
. As originally proposed in the House Bill (H.R.9056), section 752 (then numbered as section 742) read "[n]otwithstanding any other provision of this Act or of any other law, the Council shall have jurisdiction to legislate with respect to matters involving or relating to elections in the District” (italics added). H.R. 9056, 93d Cong. 109110. This language supports a reading that a focus of section 752 was the Council’s authority vis-a-vis the independent Board.
. Legislature v. Deukmejian,
. Appellants have not contended that the resultant prior subject-matter restraint on initiative measures implicates the First Amendment right to free speech, and relevant persuasive authority is to the contrary. "The First Amendment imposes no restriction on the withdrawal of subject matters from the initiative process.” Marijuana Policy Project,
.One final point: There is no doubt that, through the Human Rights Act and the Human Rights Act safeguard, the Council has sought to promote a broad policy of nondiscrimination that will preclude voters from
. Although the Board's brief argues that the proposed initiative would authorize or have the effect of authorizing discrimination on the basis of "gender and/or sexual orientation," the Board's decision was that the initiative would authorize discrimination prohibited by the Human Rights Act in that it would "deny recognition to ... marriages on the basis of the sexual orientation of the individuals who comprise the couples.” Accordingly, our analysis focuses only on the correctness of that ruling.
. The court noted that the Human Rights Act defined a “place of public accommodation” to include "establishments dealing with goods or services of any kind,” as well as “public halls.” It noted the position of amicus Human Rights Commissioners that "all District of Columbia agencies are places of public accommodation, within the meaning of the Human Rights Act, because they provide goods and services to District residents.” Id.; cf. Ptaszynski v. Uwaneme,
. In 2002, the pertinent provision of the Human Rights Act was amended to read as follows:
Except as otherwise provided for by District law or when otherwise lawfully and reasonably permitted, it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business.
D.C.Code § 2-1402.73 (2006) (italics added). This amendment is fairly regarded as a clarification. As discussed, in 1977 the Home Rule Council re-enacted without substantive change the Human Rights Law, regarding which the pre-Home Rule Council said that it was "a priority ... that District government will be the first to comply" with the "spirit” of the law, such as by addressing complaints of discrimination against police officers. Human Rights Law Report, at 2. In Executive Order 94-132 (May 19, 1994), then-Mayor Sharon Pratt Kelly summarized the interpretation that enjoyed acquiescence: that "Offices and agencies of the District government are covered by the prohibitions of the Human Rights Act.... No ... agency of the District government may engage in any prohibited activity, including denial of full and equal enjoyment of its services, facilities, privileges or advantages to any person in violation of
. The Board's brief refers to the "more than 200 District rights and responsibilities of civil marriage.”
. See Estenos v. PAHO/WHO-Fed. Credit Union,
Dissenting Opinion
with whom WASHINGTON, Chief Judge, and GLICKMAN and OBERLY, Associate Judges, join, dissenting:
This appeal is about legislative authority — that vested in the Council of the District of Columbia and that granted to the voters at large. In 1978, five years after the Home Rule Act transformed governance in the District of Columbia, the Council, the voters, and the Congress of the United States, acting in collaboration, amended the District Charter (Title IV of the Home Rule Act) for the first time, creating the right of initiative so that the voters themselves could propose and approve legislation.
In 2009, appellants
Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative. In light of the majority’s holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majority’s conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002.
I. The Factual and Procedural Background
On two occasions (in 2009 and 2010), appellant Jackson and others presented referendum
The Jury and Marriage Amendment Act of 2009, which became law on July 7, 2009,
Meanwhile, on September 1, 2009, appellants submitted the Marriage Initiative of 2009. The Board refused to accept the initiative, reasoning that, “[i]f passed, [it] would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriages currently recognized in the District.... Because the Initiative would authorize discrimination prohibited by the HRA, it is not a proper subject for initiative, and may not be accepted by the Board.” Appellants petitioned for review by the Superior Court, and for a writ of mandamus. The trial court allowed the District of Columbia to intervene and later granted summary judgment to the Board and the District. This appeal followed.
II. The “Constitutional” Framework
The Constitution of the United States of America vests in Congress the power to legislate for the District of Columbia “in all Cases whatsoever.” U.S. Const, art. I, § 8, cl. 17. However, in 1973 Congress enacted the District of Columbia Self Government and Governmental Reorganization Act, Pub.L. 93-198, 87 Stat. 777 (1973) (codified at D.C.Code §§ 1-201.01 — 1-207.71), popularly known as the Home Rule Act. Through this transforming legislation, Congress delegated some, but not all, of its legislative power over this jurisdiction to the Council of the District of Columbia while retaining ultimate legislative authority over the District. See D.C.Code §§ 1-204.04, 1-206.01; see also District of Columbia v. Greater Washington Central Labor Council, AFL-CIO,
Nevertheless, the Home Rule Act contains several limitations on the legislative power of the District.
The Home Rule Act is now found in Chapter 2 of Title 1 of the D.C.Code, and Subchapter IV of Chapter 2, the District Charter, “establish[es] the means of governance of the District....” D.C.Code § 1-203.01. As we have noted, see supra note 6, legislation passed by the Council (or by initiative) must be “consistent with the Constitution of the United States and the provisions of this chapter [the Home Rule Act],...” D.C.Code § 1-203.02. The Home Rule Act and the District Charter thus serve as a constitution for the District. See Convention Center III,
The Home Rule Act includes a process for amending the Charter which requires collaboration among the Council, the voters of the District of Columbia, and Congress. With certain exceptions not relevant here, the Charter “may be amended by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification.” D.C.Code § l-203.03(a). At the time of the Charter Amendments Act, on which we will focus here, the Home Rule Act required that Congress “adopt a concurrent resolution ... approving such amendment” before it would become effective. D.C.Code § l-125(b) (1977 Supp.). Now, an amendment to the Charter takes effect unless Congress, during a period of congressional review, enacts a joint resolution disapproving the amendment. D.C.Code § l-203.03(b).
III. The Right of Initiative and Its Limits
The rights of initiative, referendum, and recall were added to our form of government in 1978 by the Charter Amendments Act (“CAA”) and thereby became part of the District’s Charter. D.C. Law 2-46, 24 D.C.Reg. 199 (1977) (as approved by H.R. Con. Res. 464 & 471, 95th Cong. (1978)) (codified at D.C.Code § 1-204.101-107 (initiative and referendum) and D.C.Code § 1-204.111-115 (recall)). These Charter Amendments are “functionally equivalent” to constitutional amendments, Convention Center Referendum Committee v. Board of Elections and Ethics,
As amended, the Charter includes one express limitation on the subject matter of an initiative
IV. The Human Rights Act
In 1973, the District of Columbia Council (the predecessor of the current Council of the District of Columbia) adopted Title 34 of the District of Columbia Rules and Regulations, known as the “Human Rights Law” (34 DCRR § 3.1). “In enacting Title 34, the City Council looked beyond the Civil Rights Act of 1964, including Title VII, to other civil rights legislation enacted by Congress more than 100 years ago [referring to an 1866 law now codified, as amended, at 42 U.S.C. §§ 1981 and 1982.]” Arthur Young & Co. v. Sutherland,
Concerned that the police power regulations in Title 34 might not have the same force and effect as a statute, the (post Home Rule) Council of the District of Columbia re-enacted the regulations as The Human Rights Act of 1977. Blodgett v. University Club,
“In amending the [Human Rights Act] in 1997, the legislature emphasized its ‘broad scope’ and the fact that its coverage is wider than Title VII:
The District’s human rights law has long been praised for its broad scope. The law bans discrimination in employment, housing, public accommodations, and education. It protects people from*125 discrimination based on characteristics covered in federal civil rights law — race, color, sex, religion, age, national origin, and disability — as well as other characteristics not covered under federal law, such as sexual orientation, marital status, and family responsibilities.”
Lively v. Flexible Packaging Ass’n,
We have described the Human Rights Act as “a powerful, flexible, and far-reaching prohibition against discrimination of many kinds,” Executive Sandwich Shoppe, Inc. v. Carr Realty Corp.,
In light of this community’s longstanding commitment to securing an end to discrimination, it is entirely understandable that citizen groups and the Council would recognize the possibility that “a proposed initiative measure [might seek to] authorize discrimination as a policy for this community.” D.C. Council, Report on Bill 2-317 at 11 (May 3,1978). These concerns emerged when the Council turned to the task of implementing the newly created rights of initiative, referendum, and recall.
Y. The Initiative, Referendum and Recall Procedures Act of 1979
The Charter Amendments Act did not prescribe how the newly-created rights of initiative, referendum, and recall were to be implemented. Instead, Section 8 of Amendment No. 1 (which established the rights of initiative and referendum) instructed:
The Council of the District of Columbia shall adopt such acts as are necessary to carry out the purpose of this Amendment within one hundred and eighty (180) days of the effective date of this Amendment. Neither a petition initiating an initiative nor a referendum may be presented to the District of Columbia Board of Elections and Ethics prior to October 1,1978.
D.C. Law 2-46, Amendment No. 1 § 8, 1978 D.C. Statutes-ab-Large 33, 34-35 (1978 Comp.) (the codified statute, D.C.Code § 1-204.107, uses the term “sub-part” in place of “Amendment”). The outcome of this appeal depends mainly on how
A. Creating Time to Implement the CAA
The District of Columbia asserts that “[d]eeiding what acts are ‘necessary to carry out’ the undefined ‘purpose’ of the CAA requires policy decisions that are properly left to the Council and that this Court cannot make without expressing lack of the respect due coordinate branches of government.” We disagree.
We focused on these same provisions in Convention Center I, where this court held that the Charter Amendments were not self-executing. After quoting or describing various excerpts from the legislative history, we characterized Section 8 as a “legislative mandate,”
The majority points to models of other language that might have been used if the Council were expected “to enact merely procedural rules governing the initiative and referendum process.” (Judge Thompson’s opinion at 24) A similar point should be made about the majority’s comparison of Section 8’s language to the “necessary and proper” clause of Article I, Section 8, Clause 18 of the Constitution.
Moreover, any mystery about the purpose of the CAA evaporates when Section 8 of Amendment No. 1 is considered in context, as it should be. See District of Columbia v. Beretta, U.S.A., Corp.,
Considered in context, this “necessary to carry out the purpose” language was a mandate to enact implementing legislation — to adopt such acts as are necessary to make the rights of initiative, referendum, and recall available to the people of the District of Columbia — and to do so in a timely manner. It did not grant any license to restrict those rights, which had been established through the painstaking process of amending the Charter.
B. Limiting Subject Matter
The implementing legislation arrived (albeit beyond the 180-day period allotted) in the form of the Initiative, Referendum and Recall Procedures Act of 1979. This legislation, among other things, prescribed the form in which a measure must be submitted and the number of copies required, and established timetables and procedures for processing it. D.C.Code § 1-1001.16.
Reacting to understandable concerns that the rights of initiative and referendum could be misused by the majority to discriminate against minorities, the Council instructed the Board (in the IPA) to refuse to accept a measure if it “authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2 [the Human Rights Act.]” D.C.Code § l-1001.16(b)(l)(C). But the legitimacy of this concern does not mean that the Council had the authority to restrict a right established in the Charter. In light of the current litigation, it is striking that, while the IPA was under consideration, both the Corporation Counsel and the legislature’s own General Counsel warned that the Council did not have the power to impose this limitation on the right of initiative. The Office of Corporation Counsel explained, for example, that
[t]he merits of the policy embodied by this restriction on the voters’ rights is*128 beside the point. Any substantive restrictions on the rights of the voters granted by Charter Amendment No. 1 are contrary to that Amendment and, hence, are void and of no effect. Such legislation may only be accomplished by the Charter Amending Procedure or by Act of Congress.
Supplemental Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, Office of the Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, 2 (June 2, 1978); 3 Op. C.C.D.C. 102,103 (1978).
The majority brushes aside these “doubts expressed by lawyers,” emphasizing that “the elected representatives of the people — the Council and the Mayor— thought otherwise.” (Majority Opinion at 31, 32) But this is a question of legal or “constitutional” authority, not a matter of political judgment.
We perceive no principled basis for deferring to the Council’s interpretation of the Home Rule Act, apart from the merits of the Council’s argument. Although “the interpretation of its powers by any branch is due great respect from the others[,] ... ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” United States v. Nixon,418 U.S. 683 , 703,94 S.Ct. 3090 ,41 L.Ed.2d 1039 (1974) (quoting Marbury v. Madison,1 Cranch 137 , 177,2 L.Ed. 60 (1803)).
District of Columbia v. Washington Home Ownership Council, Inc.,
The Corporation Counsel gave sound advice in 1978. The rights of initiative, referendum, and recall had become part of the Charter, which cannot be amended except by Act of Congress or by going through the Charter Amendment process. The “necessary to carry out” language in the Charter Amendments Act did not give the Council power to enact legislation inconsistent with the Charter Amendments. Price v. District of Columbia Board of Elections and Ethics,
VI. Appellees’ Arguments
A. Should We Abstain?
Invoking the Supreme Court’s decision in Baker v. Carr,
By conducting this review of the Council’s action, we are not, as the District of Columbia asserts, expressing a lack of the respect due a coordinate branch of government. To the contrary, we proceed cautiously, recognizing “the need to ‘balance deference to the legislative authority of the Council, with our own duty to oversee Council action which might exceed con-gressionally delegated authority.’ ” Atchison v. District of Columbia,
We frequently have had to decide the scope of the Council’s authority under the Home Rule Act. Compare Washington Home,
B. Unique Insight?
The District also points out that most of the same Councilmembers who passed the Charter Amendments Act approved the Initiative, Referendum and Recall Procedures Act of 1979. It argues that, “although the second Council could not change the Charter through ordinary legislation, its unique insight into what the CAA meant gave its interpretation through the IPA presumptive validity.” However, the cases on which the District relies do not support this proposition. Moreover, we have seen no indication that the Councilmembers who enacted the IPA (thereby imposing the Human Rights Act limitation on the right of initiative) thought they were interpreting the CAA or purported to rely on insiders’ knowledge of its purpose. Nor did they profess unique understanding of what the “necessary to carry out” language meant.
The District and the majority focus single-mindedly on the supposed intent of the Council in drafting and “interpreting” the CAA. See, e.g., ante at 160 (“what the Council did in enacting the IPA provides an authoritative interpretation of the intent and meaning of the CAA”). Tellingly, however, they point to no evidence that the voters of the District or members of Congress (all indispensable partners in amending the Charter) thought they were delegating to the Council an undefined power to limit the right of initiative in any way the Council thought necessary.
The District misplaces its reliance on Eldred v. Ashcroft,
By contrast to Eldred, the provision at issue here has been in existence for about thirty years (as opposed to over two hundred). More importantly, the District has not pointed us to, nor can we find, any
In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence ..., is minimized.
C. The Council’s Rationale
Wfiien one focuses on the subject matter restriction imposed by the IPA, an obvious question arises: Why didn’t the Council simply add the Human Rights Act limitation to its draft of the Charter Amendments Act?
1. Reitman v. Mulkey
Reitman considered a provision of the California Constitution that had been initiated by the voters, but the Supreme Court’s holding is no more a check on the right of initiative than it is on acts passed by a legislature. So far as the decision discloses, it was irrelevant that the provision was adopted by initiative.
According to the California Supreme Court, that initiative (Proposition 14) was designed “to overturn state laws that bore on the right of private sellers and lessors to discriminate” and “to forestall future state action that might circumscribe this right.”
Of especial interest here, the Supreme Court of California had rejected an effort to keep the proposition off the ballot, reasoning “that it would be more appropriate to pass on those questions after the election ... than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls.” Mulkey v. Reitman,
2. Section 752
The Council also invoked, and appellees now rely upon, D.C.Code § 1-207.52 (2006) (“Section 752” of the Home Rule Act),
At the time Section 752 was enacted, the right of initiative did not exist. It therefore is far from clear that Congress would have thought that the phrase “matters involving or relating to elections in the District” encompassed initiatives. More fundamentally, given that Section 752 predates by five years the creation of the right of initiative, it is implausible that Congress intended Section 752 to confer upon the Council power to exclude whole subject areas from consideration by the electorate.
In any event, if Section 752 is as broad as appellees assert, why was the Charter Amendments Act necessary? Why didn’t the Council simply use its power over elections to create the rights of initiative, referendum, and recall? One obvious answer is that, even if an initiative is an election, it is much more — it is an exercise of legislative power. The Charter provided that “the legislative power granted to the District by [the Home Rule Act] is vested in and shall be exercised by the Council in accordance with this chapter.” D.C.Code § 1-204.04. Allowing the voters to exercise legislative power amounted to a further delegation of Congress’s authority. Creating that right thus required a Charter Amendment.
If a Charter amendment was necessary to create the right of initiative, an amendment is equally necessary to limit that right. See Price,
Finally, appellees have offered no satisfactory answer to the following question: 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? 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-eumbersome process of amending the Charter.
D. Inappropriate for Direct Democracy?
The District also argues that it is a mistake to read the CAA literally, as establishing a right of initiative “coextensive” with the legislative power of the Council except for one express limitation — “laws appropriating funds.” It asserts that “the most reasonable conclusion is that the CAA was intended to authorize the electorate to vote on topics generally, but not those inappropriate for direct democracy.” We have found no support whatsoever for this proposition in the CAA’s text or its legislative history.
Even if we assume that the people at large are more likely to discriminate against minorities than are then- elected representatives, appellees forget that there are numerous checks and balances in place here to protect against the tyranny of the majority. Appellants’ proposal may be defeated at the polls. If the initiative passes, Congress may disapprove it. See D.C.Code § 1-204.105 (2006). Moreover, the Council will have the opportunity to amend or repeal the measure if it becomes law. See Atchison v. District of Columbia,
It should be clear that no one on this court doubts the importance of the Human Rights Act. Non-discrimination, tolerance, acceptance, and inclusion are all fundamental values to be fostered in a pluralistic society. But these aspirations are best achieved through a system of laws, and it is vital that the institutions of the District government observe the limits placed upon them by the Home Rule Act and the Charter. It is “our ... duty to oversee Council action which might exceed congressionally delegated authority.’ ” Atchison,
. An initiative is "the process by which the electors of the District of Columbia may propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval." D.C.Code § 1-204.101(a) (2006). If a majority of those voting approves an initia
. Appellants, the proponents of the Marriage Initiative of 2009, are Bishop Harry Jackson, Jr., Reverend Walter Fauntroy, Reverend Dale Wafer, Melvin Dupree, Apostle James Silver, Reverend Anthony Evans, Robert King, and Elder Howard Butler.
. "The term 'referendum' means the process by which the registered qualified electors of the District of Columbia may suspend acts of the Council of the District of Columbia (except emergency acts, acts levying taxes, or acts appropriating funds for the general operation budget) until such acts have been presented to the registered qualified electors of the District of Columbia for their approval or rejection.” D.C.Code § 1-204.101(b) (2006).
.The Superior Court, this court, and Chief Justice Roberts, sitting as Circuit Justice, declined to stay the effective date of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. See Jackson v. District of Columbia Board of Elections and Ethics, - U.S. -,
. Although the acts of the Council related to same-sex marriage have become law, this appeal is not moot. We have held that the right of initiative may be used to repeal or amend existing legislation. Convention Center Referendum Committee v. District of Columbia Board of Elections and Ethics,
. See D.C.Code § 1-203.02 (entitled “Legislative power”), which states:
Except as provided in §§ 1-206.01 to 1-206.03, the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter subject to all the restrictions and limitations imposed upon the states by the 10th section of the 1st article of the Constitution of the United States.
Article I, Section 10, of the Constitution forbids the states to do a variety of things, including entering into treaties, coining money, granting a title of nobility, or, without the consent of Congress, laying any duty of tonnage.
. Demonstrating that it thought carefully about the need for express limitations when drafting the Charter Amendments Act, the Council placed three express limitations on the right of referendum. See supra note 3.
. The parties agree that this case does not implicate this express limitation on the right of initiative.
. See, e.g., District of Columbia v. John R. Thompson Co.,
. The Human Rights Act was extended to cover government services in 2002. Human Rights Amendment Act of 2002, D.C. Law 14-189 § 2(g) (Act 14-399), 49 D.C.Reg. 6523 (2002) (codified at D.C.Code § 2-1402.73 (2007)). Since 1977, several protected categories, including “gender identity or expression” and "familial status,” have been added. Compare D.C.Code § 2-1401.01 (2007) with D.C.Code § 6-2201 (1978 Supp.). Council-member Alexander has recently introduced a bill to amend the Human Rights Act “to protect victims and family members of victims of domestic violence, sexual abuse, and stalking against discrimination by employers.” Bill 18-0796, proposing the "Protecting Victims of Crime Amendment Act of 2010.”
. The House Report accompanying the concurrent resolution which approved the CAA explained: “Section 8 requires the Council to adopt appropriate implementing acts, and makes October 1, 1978, the effective date of this Council Act.” H.R.Rep. No. 95-890, at 5 (1978). The attached report from the Council of the District of Columbia similarly states that Section 8 "directs the Council to adopt any further acts which may be necessary to implement the Amendment and prohibits the submission of any initiative or referendum petitions to the Board until after October 1, 1978.” Id. at 17.
. Article I, Section 8, Clause 18 provides: "The Congress shall have Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
. For example, the supporters of an initiative "shall file with the Board 5 printed or typewritten copies of the full text of the measure, a summary statement of not more than 100 words, and a short title of the [proposed initiative]....” D.C.Code § 1-1001.16(a)(1). If the Board accepts the initiative or referendum measure, "[wjithin 20 calendar days, of [such acceptance],” it must, among other things, "[p]repare, in the proper legislative form, the proposed [measure].” D.C.Code § 1-1001.16(c)(3). "After preparation, the Board shall adopt the summary statement, short title, and legislative form at a public meeting and shall within 5 days, notify the proposer of the measure of the exact language. In addition, the Board, within 5 days of adoption, shall submit the [same information] to the District of Columbia Register for publication.” D.C.Code § 1-1001.16(d).
. Both, the Office of Corporation Counsel and the General Counsel of the Council of the District of Columbia issued cautionary advice on more than one occasion while the IPA was under consideration. For example, commenting in the spring of 1978, Corporation Counsel stated: "Additional restrictions in the subjects subject to initiative which are not in the Charter Amendment could not be made pursuant to an act of the Council, but only through the Charter Amendment procedure.” Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, 6 ¶ 2 (May 2, 1978); 3 Op. C.C.D.C. 60, 65 (1978). The General Counsel stated that in contrast to all the other limitations on the right of initiative, which were "procedural in quality” and provided for a "ministerial review process ... consistent with the function of an implementing act[,]" the antidiscrimination provision "engrafts ... a new requirement not in the Charter amendment....” Memorandum from Edward B. Webb, Jr., General Counsel, to Council Members, 2 (June 7, 1978) (attaching the supplemental memorandum from Corporation Counsel). The General Counsel opined that "[cjlearly, this is an indirect attempt to further amend the Charter and is, therefore, legally without effect.” Id.
. In Hessey III we held that a proposed initiative would not violate the HRA. Hessey v. Burden,
. “Since amendments to the Charter required Congressional approval when the initiative right was approved by Congress, D.C.Code § 1-1320 (1991 Repl.), the court must consider Congressional intent in approving the amendment. Because the Charter amendment is in the form of an act passed by the Council, and because the Charter Amendment on the right of initiative included authority for the Council to adopt implementing legislation, the court must address the intent of the Council.'' Hessey II,
. No inference of approval may fairly be drawn from the failure of Congress to disapprove the IPA, which contained the Human Rights Act limitation on the right of initiative. See Springer v. Government of the Philippine Islands,
. The Council approved the original version of the Charter Amendments Act before it passed the Human Rights Act. The Mayor signed the Human Rights Act on September 28, 1977. 24 D.C.Reg. 6038 (Jan. 27, 1978). However, the Council amended the Charter Amendments Act four weeks later, before it was presented to the voters on November 8, 1977. H.R.Rep. No. 95-890, at 2.
. Art. I, § 26, provided:
Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
. If the logic of the majority’s argument were followed, one wonders if the Council, using its power under Section 752, could instruct the Board of Elections to refuse to accept petitions from certain classes of candidates running for election to the Council— even though they met the qualifications for holding office established in the District Charter?