Appeal from the Superior Court of the District of Columbia; (Hon. Shellie F. Bowers, Trial Judge)
Before Ferren, Terry, and Steadman, Associate Judges. Judgment Per Curiam. Opinion Concurring in part and Dissenting in part by Associate Judge Ferren. Concurring opinion by Associate Judge Terry. Concurring opinion by Associate Judge Steadman.
PER CURIAM: The judgment of the trial court is affirmed pursuant to Parts I., II., III., and V. of Judge FERREN's opinion and the Concurring opinions of Judges TERRY and STEADMAN.
TERRY, Associate Judge: I join in parts I-III of Judge Ferren's opinion. I also join in Judge Steadman's opinion. Accordingly, I vote to affirm the judgment of the trial court in all respects, although not precisely for the reasons stated by the trial court.
The outcome of this case, in my view, turns on the definition of "marriage." Shakespeare in his 116th Sonnet wrote of "the marriage of true minds." In the game of pinochle, the king and queen of the same suit are referred to as a "marriage" when those cards are held by the same player; if that suit is trump, the combination of king and queen is a "royal marriage." But these and similar expressions are only metaphors, figures of speech derived from the literal meaning of the word that serves as the fulcrum of this case. Judge Ferren, in parts II and III of his opinion, cogently demonstrates that the word "marriage," when used to denote a legal status, refers only to the mutual relationship between a man and a woman as husband and wife, and therefore that same-sex "marriages" are legally and factually -- i.e., definitionally -- impossible.
This Conclusion necessarily disposes of the equal protection issue that Judge Ferren goes on to discuss in part VI of his opinion. That is, if it is impossible for two persons of the same sex to "marry," then surely no court can say that a refusal to allow a same-sex couple to "marry" could ever be a denial of equal protection. I am willing to assume, for the purposes of this Discussion, that homosexuality is an immutable trait; indeed, recent scientific literature strongly suggests that this is so, as Judge Ferren tells us, ante at 86-89 & nn. 49-52. But if two people are incapable of being married because they are members of the same sex and marriage requires two persons of opposite sexes, as Judge Ferren has shown, then I do not see how it makes any difference that the District of Columbia, or any agency of its government, discriminates against these two appellants by refusing to allow them to enter into a legal status which the sameness of their gender prevents them from entering in the first place. Thus Judge Ferren's Discussion of "adjudicative" versus "legislative" facts in part IV, while fascinating, is ultimately irrelevant to the outcome of this case, *fn1 and the equal protection issue is moot.
It seems obvious that the remedy for the dilemma facing these appellants lies exclusively with the legislature. The Council of the District of Columbia can enact some sort of domestic partners law, bestowing on same-sex couples the same rights already enjoyed by married couples, whenever it wants to. But no court can order a legislature to enact a particular statute so as to achieve a result that the court might consider desirable, or to appropriate money for a purpose that the court might deem worthy of being funded. See Zahn v. Board of Public Works, 274 U.S. 325, 328, 71 L. Ed. 1074, 47 S. Ct. 594(1927); Hart v. United States, 118 U.S. 62, 67, 30 L. Ed. 96, 6 S. Ct. 961(1886); cf. Reeside v. Walker, 52 U.S. (11 How.) 272, 289-290, 13 L. Ed. 693(1851) (mandamus will not lie against the Secretary of the Treasury to pay a claim when Congress has not appropriated money to pay it). The separation of powers doctrine prohibits such action by a court. Nor can a court alter or expand the definition of marriage, as that term has been understood and accepted for hundreds of years. Thus the Council, and only the Council, can provide Messrs. Dean and Gill with the relief they seek.
Having concluded unanimously that it is impossible for two persons of the same sex to marry, this court cannot also conclude that it is -- or even may be -- a denial of equal protection to refuse to allow such persons to marry. The two Conclusions are inherently inconsistent. *fn2 If these appellants cannot enter into a marriage because the very nature of marriage makes it impossible for them to do so, then their quest for a marriage license is a futile act, and the District's refusal to issue a license to them is legally and constitutionally meaningless. They are, of course, free to refer to their relationship by whatever name they wish. But it is not a marriage, and calling it a marriage will not make it one.
STEADMAN, Associate Judge, Concurring: I join Judge FERREN'S compelling analysis of appellants' several arguments in Parts I., II., III., and V. of his comprehensive opinion. However, in my judgment, the marriage statute must be sustained as well against the challenge under constitutional equal protection, applicable within the District of Columbia through the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 98 L. Ed. 884, 74 S. Ct. 693(1954).
My initial difficulty with a postulate of appellants' analysis, reflected in Judge FERREN'S Discussion of equal protection, is its treatment of the marriage statute as the equivalent of a statute expressly addressed to an assertedly suspect class. The marriage statute is simply not the same as, say, a statute prohibiting the employment of homosexuals. Cf. Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (holding that Amendment 2, which prohibited the state and municipalities from passing legislation to protect homosexuals, infringed on plaintiffs' right to vote in violation of the Equal Protection Clause). Rather, it is a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by the state. To the extent it is exclusive, it is exclusive evenly of all same-sex couples, who may, for whatever reason, wish to enter that legal status.1a I think it would take a considerable stretch to find, in such circumstances, the requisite "purposeful" or "invidious" legislative discrimination addressed to homosexuals. See Personnel Administrator v. Feeney, 442 U.S. 256, 274, 60 L. Ed. 2d 870, 99 S. Ct. 2282(1979) (when a neutral law is challenged as having a disparate impact on women, plaintiffs must show purposeful discrimination); Washington v. Davis, 426 U.S. 229, 239-40, 48 L. Ed. 2d 597, 96 S. Ct. 2040(1976) (plaintiffs who alleged a racially disproportionate impact from governmental action must show invidious discrimination on the part of governmental actors).2a
But even assuming that the marriage statute should be analyzed as one of unequal application to homosexuals and assuming further that homosexuals are a quasi-suspect class, as Judge FERREN suggests may be the case, *fn3 I fail to see an unconstitutional transgression of equal protection. As Judge FERREN demonstrates, the right to marry is a fundamental right only in application to opposite-sex couples. While plainly the marriage state involves far more, *fn4 the Supreme Court teaches that at bottom the institution reflects considerations "fundamental to the very existence and survival of the race," Skinner, supra, 316 U.S. at 541, and bound up with sexual relations, procreation, childbirth and child rearing. Zablocki, supra, 434 U.S. at 386. *fn5 It seems to me apparent that much the same considerations that elevate opposite-sex marriage to the status of a fundamental right constitute the requisite substantial relationship to an important governmental interest *fn6 of a statute designed to recognize and promote that fundamental right. Surely, if only opposite-sex marriage is a fundamental right, the state may give separate recognition solely to that institution through a marriage act as here. *fn7
These and like considerations have led, so far as I am aware, every appellate court in the land presented with the issue to reject federal constitutional challenges to opposite-sex marriage statutes. *fn8 I am led to the same Conclusion.
FERREN, Associate Judge, Concurring in part and Dissenting in part: Plaintiff-appellants, two homosexual men, want to marry each other. They appeal from the trial court's order granting summary judgment for the District of Columbia, rejecting their complaint for an injunction to require the Clerk of the Superior Court to issue them a marriage license. Appellants contend the trial court erred in three respects: (1) ruling that the District of Columbia marriage statute, D.C. Code §§ 30-101 to -121 (1993), prohibits the Clerk from issuing marriage licenses to same-sex couples; (2) ruling that the Clerk did not unlawfully discriminate against appellants under the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1992), by refusing to issue them a marriage license; and (3) interpreting the marriage statute in a way that unconstitutionally deprives same-sex couples of the right to marry.
We find no statutory violation or denial of due process, but, unlike the majority, I believe there are genuine issues of material fact precluding summary judgment on appellants' constitutional claim that they have been denied equal protection of the laws. Specifically, I conclude that a trial is required to determine whether same-sex couples comprise a "suspect" or a "quasi-suspect" class entitled either to "strict" or to "intermediate" scrutiny of governmental discrimination against them -- in this case denial of the right to marry. Furthermore, if, as a result of the trial, the court decides that same-sex couples do comprise such a protected class, the trial will also be needed to determine whether the District, despite such constitutionally protected status for same-sex couples, has a "compelling," or at least a "substantial," governmental interest in keeping the marriage limitation to heterosexual couples as is. If it does, the District would prevail, otherwise not.
Recognition that homosexuals -- like racial minorities and women -- are entitled to special constitutional protection, therefore, would not necessarily mean that homosexuals are constitutionally entitled to marry one another; not all governmental discrimination against constitutionally protected groups is forbidden. But I do not believe that this court can properly conclude at this point -- as a matter of law without benefit of a trial -- that appellants have failed to proffer an equal protection claim. Accordingly, unlike my colleagues, who dispose of the matter summarily, I would reverse and remand this case for trial on the equal protection issue.
On November 13, 1990, appellants Craig Robert Dean and Robert Gerard Gill applied for a marriage license from the Clerk of the Superior Court, as required by D.C. Code § 30-110. The Clerk, acting as head of the Marriage License Bureau, denied their application, explaining his action in a memorandum to the Director of the court's Family Division:
Title 30-110 of the District of Columbia Code authorizes the Clerk of the Court to grant or deny applications for marriage licenses.
The sections of the District of Columbia Code governing marriages do not authorize marriage between persons of the same sex. Therefore the application for a marriage license in this case is respectfully denied.
Appellants filed an action in Superior Court seeking declaratory and injunctive relief requiring the Clerk to issue them a marriage licence. In their amended complaint, appellants alleged that they qualified for the license because the marriage statute, D.C. Code §§ 30-101 to -121, is "gender-neutral" and, further, because the Clerk, by refusing to issue the license, had discriminated against them on grounds of sex or sexual orientation, in violation of the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 to -2557.
The District moved to dismiss for failure to state a claim for relief. Judge Bowers granted summary judgment for the District. He explained that all definitional sources for "marriage" -- the legislative history of the Marriage and Divorce Act, D.C. Law 1-107, 1977 D.C. Stat. 114; the various references to gender in relevant provisions of the District of Columbia Code; the common law of the District of Columbia; decisions of appellate courts in other states; references to marriage in the Bible; and dictionary definitions of "marriage" -- show that marriage inherently requires one male and one female participant. Furthermore, according to Judge Bowers, the "City Council consciously chose not to make the language of the Human Rights Act applicable to the regulation of the marital relationship." He drew that Conclusion from the fact that, only a few months before the Council enacted the Human Rights Act, it had rejected a proposal expressly to permit same-sex marriages. Judge Bowers concluded:
Plaintiffs were denied a marriage licence because of the nature of marriage itself, requiring, as it does, that the parties thereto be a male and a female. What the plaintiffs herein sought a license to enter into, by definition, simply was not a "marriage." Any change in that definition must come from the legislature -- not this Court.
Appellants moved for reconsideration. They asserted that, in ruling that same-sex couples did not have the right to marry, the trial court interpreted the marriage statute and the Human Rights Act in ways that violated appellants' constitutional rights to due process and equal protection of the laws under the Fifth Amendment, and violated the establishment of religion clause of the First Amendment as well. In an opinion issued on June 2, 1992, Judge Bowers granted the motion for reconsideration but rejected appellants' constitutional claims. Appellants filed a timely appeal on both statutory and constitutional grounds. *fn1
II. THE MARRIAGE STATUTE CLAIM
Appellants contend that the Clerk should be required to issue them a marriage license because the marriage statute is gender-neutral and does not expressly prohibit same-sex marriages. We cannot agree. The language and legislative history of the marriage statute demonstrate that neither Congress nor the Council of the District of Columbia has ever intended to define "marriage" to include same-sex unions.
A. Legislative History of the Marriage Statute
On March 3, 1901, Congress enacted the first District of Columbia Code. See An Act to Establish a Code of Law for the District of Columbia, 31 Stat. 1189, ch. 854 (1901). That Act read: "All acts of Congress by their terms applicable to the District of Columbia . . . in force at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with, or are replaced by, some provision of this code." Id., ch. 1, § 1, at 1189. Chapter 43 of the Code addressed marriage; *fn2 Chapter 22 dealt with divorce. *fn3 The current marriage provisions, D.C. Code §§ 30-101 to -121 and, for the most part, the present divorce provisions, D.C. Code §§ 16-901 to -924 (1989 & Supp. 1993), are essentially the same as those enacted in 1901. *fn4
The only significant changes in the marriage and divorce provisions since 1901 occurred in the Marriage and Divorce Act of 1977, D.C. Law 1-107, 1977 D.C. Stat. 114. See generally Samuel Green & John V. Long, The Real and Illusory Changes of the 1977 Marriage and Divorce Act, 27 CATH. U. L. REV. 469(1978). *fn5 Before that Act was adopted, however, Councilmember Arrington Dixon had introduced substantially different legislation, Bill No. 1-89, the "District of Columbia Marriage and Divorce" bill, which would have completely repealed and redrafted D.C. Code §§ 30-101 to -121 (1973) (marriage) and §§ 16-901 to -924 (1973) (divorce). See The District of Columbia Marriage and Divorce Act, Bill 1-89 (May 6, 1975, with amendments proposed July 7, 1975) (hereafter Original Bill 1-89). In particular, Bill No. 1-89 would have changed § 30-101 to read: "A marriage between two persons which is licensed, solemnized and registered as provided in this Act is valid in the District of Columbia." (Emphasis added.) Id. During a public hearing on Bill 1-89, Councilmember Dixon explained that the bill would permit marriages between persons of the same sex. See Councilmember Arrington Dixon, Opening Statement at Public Hearings on Bill No. 1-89 2 (June 7-8, 1975). Although the language of the bill did not directly authorize same-sex marriages, proposed § 30-112 expressly referred to such unions and thus indirectly acknowledged their validity:
(a) The court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity; provided that this clause shall not apply to married persons of the same sex.
Original Bill 1-89, § 30-112 (Emphasis added).
If Bill 1-89 had become law, same-sex marriages clearly would have been authorized in the District. Because of the fervent debate generated by Bill 1-89, *fn6 however, Councilmember Dixon moved to substitute for original Bill 1-89 another bill proposed by the bar associations. This substitute bill was the one Council enacted as the Marriage and Divorce Act of 1977. See 1977 D.C. Stat. 119. Rather than entirely repealing and redrafting D.C. Code §§ 30-101 to -121 (1973) (marriage) and §§ 16-901 to -924 (1973) (divorce), the 1977 Act merely amended existing code provisions. See COMM. ON THE JUDICIARY AND CRIM. LAW, REPORT ON BILL NO. 1-89, THE DISTRICT OF COLUMBIA MARRIAGE AND DIVORCE ACT, at 1-5 (June 24, 1976). The 1977 Act contained no reference to same-sex marriages. In fact, it made only the following two changes in the long-standing marriage chapter:
Sec. 113. (a) Section 1291 of the Act of March 3, 1901 (D.C. Code, sec. 30-110) is amended by striking "names, ages and color" and inserting in lieu thereof "names and ages." *fn7
(b) Section 1296 of the Act of March 3, 1901 (D.C. Code, sec. 30-116) is repealed. *fn8
[O. 7] 1977 D.C. Stat. 119. In sum, the 1977 Act made no change germane to the issue before us; we are left to interpret "marriage" as understood by the Congress that enacted and codified the marriage statute in 1901 and, later, as understood by the Council that implicitly reconfirmed existing provisions of that statute while amending others through the 1977 Act.
B. Statutory Definition of "Marriage"
Because the present marriage statute is essentially the same as the 1901 statute, which was derived from even earlier legislation, see (supra) note 2, the initial question is: what did Congress intend by the word "marriage" when it enacted the marriage statute in 1901? *fn9
Citing our well-known interpretive criteria, appellants stress that we should focus, first, on the plain words of the statute. See Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc). They contend that since its inception the marriage statute, standing alone, has been essentially gender-neutral and, for that reason, has always authorized same-sex marriages.
One provision of the present marriage statute -- and only one -- has always used gender-specific language. *fn10 The so-called consanguinity provision, D.C. Code § 30-101, refers to marriages of a "man" with a "wife," and of a "woman" with a "husband." *fn11 Appellants maintain that the policy underlying this provision is the prevention of genetic birth defects and mental retardation, a policy that necessarily would not apply to same-sex couples because they cannot produce children together. From this policy premise, appellants argue that this one statutory exception to gender neutrality in the marriage statute actually substantiates their argument that the right to marry extends to same-sex couples. According to appellants, because the only gender references are contained in a public health provision, relevant only to opposite-sex couples, it follows, perforce, that the omission of gender references in all other provisions of the marriage statute necessarily implies that same-sex marriages are permitted. See McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986) (basic rule of statutory construction is "that when a legislature makes express mention of one thing, the exclusion of others is implied, because there is an inference that all omissions should be understood as exclusions").
Appellants' argument, by its own terms, only has force if the consanguinity provision is limited to prohibitions against biological inbreeding. It is not. While that concern is obvious in the prohibition of a man's marrying his sister or a woman's marrying her father, there is no genetic danger in other prohibited situations; for example, the prohibitions against a man's marrying his son's wife or a woman's marrying her stepfather. See D.C. Code § 30-101 (1) and (2), (supra) note 11. The consanguinity provision, therefore, reflects taboos -- indeed moral judgments about improper marriage relationships -- that transcend genetic concerns.
The use of gender-based terminology in § 30-101 to prohibit certain marriages, therefore, reflects a legislative understanding that marriage, as understood by Congress at the time of original enactment and thereafter, is inherently a male-female relationship. If that were not so, some of the statutory prohibitions not based on genetic reproductive concerns either would not be there or, to be consistent, would have been extended, for example, to prohibit a man's marrying his stepfather (just as a man cannot lawfully marry his stepmother) or to prevent a woman's marrying her wife's father (just as a woman cannot lawfully marry her husband's father). See D.C. Code § 30-101, supra note 11.
If appellants were to prevail in their statutory interpretation, the law would permit same-sex couples to enter into some kinds of marriage relationships that the statute forbids for opposite-sex couples, even though such relationships would not be genetically dangerous for any kind of marriage. Indeed, if men could marry men, § 30-101 would not preclude a bi-sexual man who may have had a biological son from marrying that son, or from marrying his own father or brother. We do not believe that Congress, almost a century ago, envisioned such possibilities, given the consanguinity prohibitions imposed on opposite sex couples. See (supra) note 11. Nor is there any indication that more recent Congresses, or the Council in amending the marriage statute, ever modified the fundamental legislative understanding that "marriage" is limited to opposite-sex couples. Appellants' argument that § 30-101 reflects merely public health limitations, leaving room for all genetically safe marriages regardless of gender, accordingly fails.
In sum, to conclude that Congress intended to permit same-sex marriages would mean that Congress in 1901 intended to permit various categories of genetically safe, same-sex marriages that were denied, though genetically safe, to opposite-sex couples. There is no evidence this was the case; the consanguinity provisions, far from supporting appellants' argument, actually reinforce the government's position that the legislature never had same-sex marriages in mind when adopting, codifying, or amending the marriage statute.
C. The Marriage Statute as Part of a Larger Legislative Scheme, Including the Divorce Statute
Our Conclusion that the marriage statute does not authorize same-sex marriages is buttressed by looking at the larger statutory scheme of which it is a part. See Citizens Ass'n of Georgetown v. Zoning Comm'n, 392 A.2d 1027, 1033 (D.C. 1978) (en banc) ("It is a canon of statutory interpretation that one looks at the particular statutory language within the context of the whole legislative scheme when legislative intent is to be determined."); see also 2A NORMAN J. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992). As indicated earlier, see (supra) notes 2 and 3, the marriage and divorce statutes originally were enacted at different times, but the modern statutes were both enacted in 1901. See (supra) notes 2 and 9. Nonetheless, these statutes from the beginning have been placed in different chapters of the D.C. Code, perhaps suggesting that they are not part of the same legislative scheme. On the other hand, there is, necessarily, a logical relationship between the marriage and divorce statutes; if same-sex couples can marry then, presumably, they must be able to divorce. Thus, as elaberated below, we can look at the divorce statute for clues as to how Congress, as well as the Council, has understood "marriage."
The divorce statute, traceable to congressional legislation before codification in 1901, see (supra) note 3, is replete with gender-distinctive references. See D.C. Code §§ 16-901 to -924 (1989). More specifically, the following provisions contain the terms "husband" and "wife": D.C. Code's §§ 16-904 (d)(1) (annulment granted if either party has a husband or wife living), -911 (husband or wife must pay alimony to other spouse pending divorce), -912 (husband or wife may retain right of dower in other's estate), -913 (husband or wife may be required to pay alimony when divorce is granted), -916 (court may decree permanent alimony if husband or wife fails to maintain needy spouse). *fn12 Accordingly, when the marriage statute is read in context with the broader legislative scheme that includes divorce, one cannot say that marriage is gender-neutral.
Although we attribute corroborative, not determinative, significance to the divorce statute's pervasive use of gender terminology, it is significant that Congress enacted and codified the divorce chapter at the same time it enacted and codified the marriage chapter, in 1901, using gender-specific terminology in each. See District of Columbia v. Thompson, 593 A.2d 621, 630 (D.C. 1991) (when legislature enacts two statutes at same time and the statutes have similar subject matter and purpose, principle of in pari materia dictates that the statutes should be read with reference to each other). That basic language has been carried forward ever since, both by Congress and by the Council of the District of Columbia. See (supra) note 3. This statutory evolution, therefore, strongly suggests a consistent legislative understanding and intent that "marriage" means -- and thus is limited to -- unions between persons of opposite sexes.
D. The Traditional Understanding of "Marriage"
Our statutory understanding is further confirmed by the ordinary sense and meaning traditionally attributed to the word "marriage" when used to indicate an intimate relationship. See Barbour v. District of Columbia Dep't of Employment Servs., 499 A.2d 122, 125 (D.C. 1985) ("Words of a statute must be construed by their common meaning and their ordinary sense."); In re Estate of Shutack, 469 A.2d 427, 429 (D.C. 1983) ("The words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them."). Black's Law Dictionary defines marriage as the "legal union of one man and one woman as husband and wife." BLACK'S LAW DICTIONARY 972 (6th ed. 1990) (emphasis added). The second edition of Black's Law Dictionary printed in 1910 -- presumably reflecting the common understanding at the time the marriage statute was enacted in 1901 -- defined marriage as "the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex." BLACK'S LAW DICTIONARY 762 (2d ed. 1910) (emphasis added). Similarly, Webster's Dictionary from 1902 defined "marry" as follows: "to unite in wedlock or matrimony; to join, as a man and woman, for life; to make man and wife." WEBSTER'S MODERN DICTIONARY 281 (1902) (emphasis added). The same dictionary today defines marriage as "the state of being united to a person of the opposite sex as husband or wife." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1384 (1986) (emphasis added). Although this edition of Webster's, as a third definition, defines marriage as "an intimate or close union," see id., and commitment and union are undoubtedly fundamental elements of a marriage, we are satisfied that the ordinary understanding of the word "marriage" -- both at the turn of the century when the marriage statute was enacted and in modern times when that statute was amended -- means the union of two members of the opposite sex.
Of course, the meanings of words are continually evolving, and we do not overlook the fact that the terms "marriage" and "gay marriage" are used colloquially today to refer to long-term same-sex relationships between gays and between lesbians. See Cory & LeRoy, Homosexual Marriage, 29 SEXOLOGY 660 (1963). Our task, however, is to determine what the legislature intended "marriage" to mean when the marriage statute was enacted, codified, or amended. Given the statutory language used, buttressed by the usual definition of "marriage," we cannot conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions.
E. Case Law from Other Jurisdictions
Although not at all dispositive here, we note that the cases from other jurisdictions with marriage statutes similar to the District's -- neither expressly prohibiting nor expressly authorizing same-sex marriages -- have uniformly interpreted marriage," by definition, as requiring two members of opposite sexes. The Supreme Court of Minnesota, for example, explained:
Minn.St. c. 517, which governs "marriage," employs that term as one of common usage, meaning the state of union between persons of the opposite sex. It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense.
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185-86 (Minn. 1971), appeal dismissed, 409 U.S. 810, 34 L. Ed. 2d 65, 93 S. Ct. 37(1972). See also Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973) (same-sex couple incapable of entering into marriage as the term is defined); M.T. v. J.T., 140 N.J. Super, 77, 355 A.2d 204, 208 (N.J. Super. Ct. App. Div. 1976) ("requirement that marriage must be between a man and a woman . . . is so strongly and firmly implied from a full reading of the statutes that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed"); Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974) (marriage statute "clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman"); Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R.3d 1199, 1199 (1975) ("In all cases so far discovered which have considered the question whether persons of the same sex may marry each other, the view has been taken that since the marriage relationship has always been the union of a man and a woman as husband and wife, there may be no valid contract entered into between persons of the same sex"). *fn13
While these cases do not deal with our local statute, they at least reflect the interpretive approach we apply here and thus provide precedent in the sense of analytical support for the result we reach.
F. The Anti-Sex Discriminatory language Act or 1976
Appellants do not rest on their own interpretation of the marriage statute. They argue that the Council itself, through two separate pieces of legislation, has indirectly confirmed (or reinterpreted) the statutory definition of marriage in ways that guarantee the right to same-sex marriages.
The first interpretive legislation was the Anti-Sex Discriminatory Language Act of 1976. See 1976 D.C. Stat. 194. *fn14 This Act, which among other things amended the 1901 marriage statute, sought "to achieve equality under the law for men and women by eliminating sex-based distinctions in the District of Columbia Cede, so that the rights and responsibilities of persons under D.C. law will not be different solely on the basis of their sex." COMM. ON THE JUDICIARY AND CRIM. LAW, REPORT ON BILL No. 1-36, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT, at 2-3 (May 20, 1976) (hereafter COMM. REPORT ON BILL 1-36). The Anti-Sex Discriminatory Language Act made only one change in the marriage statute:
Sec. 32. Section 1292 of the Act of March 3, 1901 (D.C. Code, sec. 30-111), is amended by striking out "unless the father of such persons, or if there be no father, the mother," and inserting in lieu thereof "unless a parent." *fn15
Because Councilmember Dixon's Bill 1-89 recognizing same-sex marriages was pending at the time the Council was discussing Bill 1-36 to establish the Anti-Sex Discriminatory Language Act, the Committee on the Judiciary and clarified the relationship between the two bills:
It is true that Bill 1-36 makes substantive changes in the domestic relations law. However, every such change is designed to achieve only one result, i.e., to make the law equal in effect for males and females. . . . Comprehensive revision of the divorce and marriage laws is contemplated in another Council bill, Bill No. 1-89, the "District of Columbia Uniform Marriage and Divorce act." That bill would make major revisions to local domestic relations law and would do so in a non-sex-discriminatory manner . . . . The Council should promptly enact Bill 1-36 which would do only one thing -- enact the principle of sex equality into the D.C. Code including the domestic relations law. Thereafter, the Council may proceed to consider a more comprehensive revision of the domestic relations law.
COMM. REPORT ON BILL 1-36, at 5-6. This comment clarifies that the Anti-Sex Discriminatory Language Act served a limited purpose: to make the law equal in effect for men and women vis-a-vis each other; for example, it gave mothers a right equal to that of fathers to consent to marriage by a child under 18. See (supra) note 15. There was not a hint that the legislation was intended to give one class of males, e.g., gay men, an equality with another class of males, e.g., heterosexual men. Thus, the 1976 Act did not revise the substance of the marriage statute to redefine the term "marriage."
G. The 1982 Gender Rule of Construction
Finally, in 1982, the Council adopted a new Gender Rule of Construction, D.C. Law 4-111, § 2(a), 29 D.C. Reg. 1684 (1982), now contained in D.C. Code § 49-203 (1990). Appellants say this Rule conclusively requires interpretation of the marriage statute to authorize same-sex marriages.
This 1982 legislation amended the language of former D.C. Code § 49-203, traceable to the 1901 Code, 31 Stat. 1189, ch. 854, Preamble, § 2 (Second), which had provided: "Words importing the masculine gender shall include all genders, except where such construction would be absurd or unreasonable." The new Rule also amended the language of D.C. Code § 1-230, adopted in 1975, which had read: "For the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise -- . . . (3) words importing one gender include and apply to the other gender as well." 22 D.C. Reg. 1990 (1975). In adopting the new Gender Rule of Construction in 1982, therefore, the Council amended two provisions of the D.C. Code (among others not relevant here). It amended § 49-203 to say: "Unless the Council of the District of Columbia specifically provides that this section shall be inapplicable to a particular act or section, all the words thereof importing 1 gender include and apply to the other gender as well." D.C. Code § 49-203 (1990). And it amended § 1-230 (3) to read: "With regard to resolutions, words importing 1 gender include and apply to the other gender as well." D.C. Code § 1-230 (3) (1992).
Appellants argue that, when the Council removed the words "except where such construction would be absurd or unreasonable" from the 1901 rule of construction in former § 49-203, without adding a disclaimer with respect to the marriage statute, the Council implicitly authorized same-sex marriages. We cannot agree.
The legislative history of the Gender Rule of Construction makes clear that the Council enacted the Rule in 1982 for one purpose: "to create a consistent gender rule of legislative construction throughout the D.C. Code." COMM. ON PUBLIC SEE VICES & CONSUMER AFFAIRS, COMMENTS ON BILL 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT AMENDMENT ACT OF 1981, at 1 (Feb. 16, 1982). Wilhelmina J. Rolark, then Chair of the Committee on Public Services & Consumer Affairs, elaborated:
Presently, there are two separate, somewhat inconsistent rules for interpreting statutory words having a gender meaning. Section 49-203 of the Code (31 Stat. 1189, enacted March 3, 1901) provides that "words importing the masculine gender shall be held to include all genders, except where such construction would be absurd or unreasonable." By contrast, Code section 1-230 (D.C. Law 1-17, 22 DCR 1990, effective September 23, 1975) provides that for the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise "words importing one gender include and apply to the other gender as well."
Not only was the original (1901) § 49-203 deficient because it did not apply to feminine gender words -- e.g., the word "steward" in a statute would be construed to include a "stewardess," whereas the word "stewardess" in a statute would not be construed to apply to a "steward" -- but also that former § 49-203 had different criteria" from those in former § 1-230 "for determining when the gender rule of construction not apply." COMM. ON THE JUDICIARY, REPORT ON BILL NO. 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT OF 1981, at 3 (Feb. 10, 1982). The Report to the Members of the Committee on the Judiciary explained:
The "absurd or unreasonable" criteria is found in sec. 49-203. In sec. 1-230, the gender rule of that section applies "unless specifically provided otherwise" by the legislature. Section 2(a) of Bill 4-374 [to adopt the Gender Rule of Construction] would make the latter criteria the rule for all statutes in the Code.
Id. Thus, the Council merely intended to make D.C. Code § 49-203 (traceable to 1901) consistent with § 1-230 (adopted in 1975) when, in 1982, it adopted the Gender Rule of Construction to remove the words "except where such construction would be absurd or unreasonable" from former § 49-203.
Had the Council intended to enlarge the statutory definition of "marriage" to include same-sex unions, it surely would have mentioned such a significant intention in the legislative history of the statute implementing the new Gender Rule of Construction. See National Org. for Women v. Mutual of Omaha Ins. Co., 531 A.2d 274, 276 (D.C. 1987) (if Council intended such a dramatic change in law, "it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history") (hereafter NOW). The Council did not do so. The Council merely intended to resolve a conflict between two inconsistent rules of construction on the books. We conclude, accordingly, that the Gender Rule of Construction, D.C. Code § 49-203, § 1-230, does not require recognition of same-sex marriages in the District. See NOW, 531 A.2d at 276.
The Marriage and Divorce Act of 1977 and the Anti-Sex Discriminatory Language Act of 1976, as well as the Gender Rule of Construction enacted in 1982, did not substantively change the central provisions of the marriage statute enacted and codified in 1901. The commonly understood meaning of "marriage" in those years was limited to a union between a man and a woman. Congress, in enacting and then codifying the marriage statute, used gender-specific language which no later Congress or the Council of the District of Columbia has ever changed. The logically related divorce statute, loaded with even more gender-specific language and codified at the same time as the marriage statute -- without subsequent material change affecting the definition of "marriage" -- reflects the contemporary, common legislative understanding that marriage requires a man and woman. Indeed, the common societal understanding of marriage, reflected in legal and ordinary dictionary definitions from the last century until today, presupposes a heterosexual union. The courts of other jurisdictions take this view as well.
All this convinces us that no legislature for the District of Columbia -- Congress or Council -- has ever intended to sanction same-sex marriages. The trial court, therefore, did not err in granting summary judgment for the District on appellants' claim under the marriage statute.
III. THE HUMAN RIGHTS ACT CLAIM
Appellants next contend that, by refusing to issue them a marriage license, the Clerk discriminated against them because of their sex or sexual orientation, in violation of the Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1992). Specifically, appellants argue 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." See D.C. Code §§ 1-2511, -2519, -2532.
Human Rights Act § 1-2519 (a)(1) makes 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 . . . sexual orientation . . . of any individual." A "place of public accommodation" is defined in D.C. Code § 1-2502 (24) to include "wholesale and retail stores, and establishments dealing with goods or services of any kind," as well as "public halls and public elevators of buildings and structures." Appellants contend that the Marriage License Bureau is a "place of public accommodation" because it is an "establishment dealing with goods or services of any kind" and is located in the Superior Court building -- a "public hall."
On appeal, the government assumes for the sake of argument that the Marriage License Bureau is a place of public accommodation. Furthermore, Elizabeth A. Leader and Barbara R. Lewis, District Human Rights Commissioners who, in their individual capacities, filed an amicae curiae brief on behalf of appellants, argue 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. See also In the Matter of Kevin S. Dickerson v. District of Columbia Department of Human Services, District of Columbia Commission on Human Rights, No. 89-465-PA(N), Final Decision and Order (May 23, 1991) (District of Columbia Department of Human Services is place of public accommodation under Human Rights Act because it provides services to District residents). We, too, assume, without formally deciding, that the Marriage License Bureau is a place of public accommodation for purposes of our analysis.
The Council of the District of Columbia enacted the Human Rights Act of 1977 to "underscore the Council's intent that the elimination of discrimination within the District of Columbia should have the highest priority and that the Human Rights Act should therefore be read in harmony with and as supplementing other laws of the District." COMM. ON PUBLIC SERVICES AND CONSUMER AFFAIRS, REPORT ON BILL NO. 2-179, THE HUMAN RIGHTS ACT OF 1977, at 3 (July 5, 1977) (citations and internal quotation marks omitted) (hereafter COMM. REPORT ON BILL 2-179). The Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds, including sex and sexual orientation.
The Council, however, did not intend the Act to prohibit every discriminatory practice. For example, in NOW, 531 A.2d at 277-78, we concluded that the Council did not intend the Human Rights Act to apply to the gender-discriminatory actuarial pricing practices of insurance companies. We explained:
It is true that it can be argued with some persuasion that the "plain language" of the Act prohibits discrimination based on gender in the services offered by insurance companies. See D.C. Cede §§ 1-2502 (24), -2519 (1987). Significantly, however, the statute contains no language purporting explicitly to regulate insurance premium practices. If the Council had intended to effect such a dramatic change in insurance rate-setting practices, it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history.
Our analysis in NOW, determining whether the Council intended the Human Rights Act to preclude gender-based rate differentials in the insurance statute, dealt with a much clearer case than the one currently before us. In NOW, although the Committee Report and other legislative history never specifically referred to actuarial rating practices, the Council clearly had heard testimony regarding legislation in other states prohibiting discrimination by insurance companies, when the Council considered the 1973 regulation Governing Human Rights, see 34 DCRR (1973) ("Title 34. Human Rights Law"), which is virtually identical to the present Human Rights Act. See NOW, 531 A.2d at 277. Furthermore, we noted that, throughout the effective period of the Regulation and at the time the Human Rights Act was adopted, the insurance statute expressly allowed a three-year set-back *fn16 for calculating life insurance premiums for women, but not for men. See id. Finally, we considered the fact that, soon after adopting the Human Rights Act, the Council requested an opinion from the Corporation Counsel as to whether the life insurance set-backs violated the Act. See id. at 278. The Corporation Counsel issued an opinion saying such action would be lawful, and the Council accordingly increased the permissible set-back for women to six years. See id. Under these circumstances, we concluded that the Act did not preclude such differentials. We emphasized: "If the Council had intended to effect such a dramatic change . . ., it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history." Id. at 276.
Although the Council undoubtedly intended the Human Rights Act to be read broadly to eliminate the many proscribed forms of discrimination in the District, we 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. See NOW, 531 A.2d at 276. There is none. See COMM. REPORT ON BILL 2-179. This is not surprising, however, for by legislative definition -- as 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. See Singer, 522 P.2d at 1190-95(Washington's Equal Rights Amendment does not require the state to authorize same-sex marriage because such relationships are outside definition of marriage).
Furthermore, in 1977, the same Council was considering both the Human Rights Act and the Marriage and Divorce Act legislation. Councilmembers were keenly aware of the gay marriage debate and presumably would have stated their intentions expressly if they had wanted the Human Rights Act, instead of the Marriage and Divorce Act, to expand the marriage statute to authorize same-sex unions. See NOW, 531 A.2d at 277("References to other statutes is particularly appropriate when the statutes were enacted by the same legislative body, at the same session."). We therefore cannot conclude that the Council intended the Human Rights Act to change the fundamental definition of marriage. The trial Judge properly granted summary judgment for the District on appellants' Human Rights Act claim.
IV. THE CONSTITUTIONAL ISSUES: PROCEDURAL AND ANALYTICAL PREREQUISITES
A. Whether Constitutional Issues Have Been Properly Raised
Because of the way appellants presented their constitutional claims, there is a threshold question whether these claims are properly before this court. The amended complaint refers exclusively to statutory claims under the marriage law and under the Human Rights Act. In appellants' memorandum in support of their motion for summary judgment, however, they argued that the marriage statute "should be read, if it can be, so as to avoid difficult and sensitive constitutional questions." Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 16 (D.C. 1987) (en banc) (lead opinion). In other words, appellants argued as a fallback that, even if the trial court rejected their plain language and legislative history arguments, the statute could not survive a limitation to opposite-sex marriages unless that interpretation satisfied the Constitution. Specifically, appellants urged the court to use the approach we employed in Gay Rights Coalition: construe the statute in a way that "saves" its constitutionality -- an analysis that inherently requires deciding whether a statute that bars same-sex marriages could withstand due process and equal protection challenges. See id., 536 A.2d at 49(Ferren, J., Concurring in the result in part and Dissenting in part) (desire to save statute from constitutional infirmity means "constitutional analysis determines statutory analysis," in contrast with "quite different . . . doctrine favoring statutory over constitutional ground for decision when both are independently available").
In its first opinion granting summary judgment for the District, the trial court ignored the constitutional issues plaintiff-appellants had presented. Appellants moved for reconsideration on constitutional grounds, presenting comprehensive arguments, supported by case law and other authorities, explaining why the marriage statute, if upheld, would violate appellants' right to due process and equal protection of the laws. In response, the District contended that, "until the filing of their motion for reconsideration the plaintiffs consistently maintained that their case did not focus upon constitutional issues." The District accused appellants of an "eleventh hour attempt to recast themselves as victims of unconstitutional action." The trial court, however, granted appellants' motion for reconsideration and expressly ruled upon -- and rejected -- the constitutional claims. The District has not questioned on appeal the propriety of our reaching these issues; and, in any event, given appellants' and the trial court's presentation and resolution, respectively, of the constitutional claims, we conclude they are appropriately before us.
At this point in the constitutional analysis, I write only for myself until Part V., which Judge STEADMAN expressly joins. Neither Judge TERRY nor ...