July 15, 2010
HARRY R. JACKSON, JR., ET AL., APPELLANTS,
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE, AND DISTRICT OF COLUMBIA, INTERVENOR-APPELLEE.
Appeal from the Superior Court of the District of Columbia (CAB-8613-09) (Hon. Judith N. Macaluso, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued en banc May 4, 2010
Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON and OBERLY, Associate Judges.
Opinion for the courtby Associate Judge THOMPSON, joined by RUIZ, REID, KRAMER and BLACKBURNE-RIGSBY, Associate Judges.
Dissenting opinion by Associate Judge FISHER, joined by WASHINGTON, Chief Judge, and GLICKMAN and OBERLY, Associate Judges, at page 53.
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, discrimination prohibited by the Human Rights Act, and therefore was not a proper subject of initiative. As will be seen, however, the underlying issues are much broader and more fundamental. They concern (1) the allocation of the power to enact laws governing the District of Columbia, within the framework of the District of Columbia Home Rule Act; (2) the broad legislative authority that Congress conferred on the Council of the District of Columbia ("the Council" or "the Home Rule Council"), subject to specific enumerated limitations; (3) the deference this court owes to the Council with respect to the meaning of the law that the Council passed to enable the people of the District of Columbia to share in the Council's legislative power through an amendment to the Home Rule Charter, (and, in particular, the deference we owe to the Council's interpretation of the Charter amendments, as reflected in the nearly contemporaneous implementing legislation that the Council passed); (4) the right of the people of the District to legislate through the initiative process, a right that Congress affirmatively approved when it voted to accept the Charter amendment; and (5) the unique importance of the Human Rights Act, the District's comprehensive anti-discrimination law, which the people of the District of Columbia, speaking through their elected representatives, have long intended to have the "highest priority." Thus, once again, we are called upon "to interpret a unique and complex governmental structure" that is the District of Columbia under Home Rule. Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections & Ethics, 441 A.2d 889, 916 (D.C. 1981) (en banc) ("Convention Ctr. III").
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 last of these points, our court is unanimous.
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.).*fn1 JAMA became law on July 7, 2009, after Congress did not disapprove it.
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 § 1-1001.16 (b)(1)(C) (2006).*fn2 Appellants sought a writ of mandamus, asking the Superior Court to order the Board to take the necessary steps to certify the initiative to allow it to be placed on the ballot. Appellants also moved for summary judgment. The District of Columbia intervened in support of the Board and moved to dismiss the complaint or, in the alternative, for summary judgment.
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 it does to opposite-sex couples. It also provides that judges of record, the Clerk of the Superior Court of the District of Columbia or such deputy clerks as the Clerk may designate, and "every minister of any religious society approved or ordained according to the ceremonies of his religious society" may celebrate marriages in the District. Id. § 46-406 (b). However, it does not require a minister of any religion to celebrate any marriage. Rather, the Council expressed in the preamble to D.C. Act 18-248 its intent to "ensure that no minister of any religious society . . . shall be required to solemnize or celebrate any marriage." 57 D.C. Reg. 27.*fn3 The Mayor signed the Marriage Equality Act, it was transmitted to Congress on January 5, 2010, see 57 D.C. Reg. 1833, and it became law on March 3, 2010.*fn4 Id.
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 District of Columbia Charter, which establishes the organizational structure of the District government. D.C. Code §§ 1-204.01--1-204.115(2006). The Charter became effective when ratified by the citizens of the District of Columbia through a Charter referendum vote. See Home Rule Act, §§ 701, 704 (codified at D.C. Code §§ 1-207.01, 1-207.04 (2006)). The Charter created a tripartite form of government within the District and vested in the Council the broad legislative power granted to the District. D.C. Code § 1-204.04; Wilson v. Kelly, 615 A.2d 229, 231--32 (D.C. 1992). Section 302 of Title III of the Home Rule Act describes that legislative power in broad terms: "Except as provided in sections 601, 602, and 603 [of the Home Rule Act, codified at D.C. Code §§ 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." D.C. Code § 1-203.02 (2006).*fn5
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 § 1-206.02 (c)(1) (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 "[n]otwithstanding any other provision of this Act or of any other law, the Council shall have authority to enact any act or resolution with respect to matters involving or relating to elections in the District." Id.
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).*fn6 On May 17, 1977, the Council exercised its authority under section 303 to pass the Initiative, Referendum, and Recall Charter Amendment Act of 1977 (the "CAA"). 24 D.C. Reg. 199 (July 8, 1977); see also 25 D.C. Reg. 244 (July 14, 1978). The Council amended the CAA on November 1, 1977, making technical changes to the legislation before it was presented to the voters. H.R. Rep. No. 95-891, at 24 (1978). The District's electorate ratified the CAA on November 7, 1977, each House of Congress affirmatively approved it, and the CAA (and, thus, an amended Charter providing for the right of initiative) became effective on March 10, 1978. Hessey v. District of Columbia Bd. of Elections & Ethics, 601 A.2d 3, 12 (D.C. 1991) (en banc); Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections & Ethics, 399 A.2d 550, 551 (D.C. 1979) ("Convention Ctr. I"); 25 D.C. Reg. 244 (July 14, 1978).
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. § 1-204.101 (a).*fn7 The CAA provided a "very broad" right for the District's electorate to utilize the initiative and referendum process.*fn8 Hessey, 601 A.2d at 12. However, the initiative and referendum provisions were not self-executing and did not include particulars about how the initiative or referendum process would be implemented. Convention Ctr. I, 399 A.2d at 552--53. Instead, the CAA affirmatively required the Council to "adopt such acts as are necessary to carry out the purpose of [the Act] within 180 days of the effective date of [the Act]." D.C. Code § 1-204.107.
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 onBill 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, 399 A.2d at 553; D.C. Council, Comm. on Gov't Operations,Report on Bill 3-2 at 1 (Jan. 31, 1979). The Council approved Bill 3-2, including the Human Rights Act safeguard, as the Initiative, Referendum, and Recall Procedures Act of 1979 (the "IPA"), which became law on June 7, 1979. D.C. Law 3-1, 1979 & 1980 D.C. Stat 7.*fn9
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.*fn10
"Concerned that [the Title 34] police power regulations might not have the same force and effect as a statute, the post-Home Rule Council of the District of Columbia re-enacted the [Human Rights Law] regulations as The Human Rights Act of 1977." Blodgett v. Univ. Club, 930 A.2d 210, 217 (D.C. 2007). The bill (Bill 2-179) that became the Human Rights Act was introduced on June 16, 1977, within a month after the Council passed the original version of the CAA.*fn11 D.C. Council, Comm. on Pub. Servs. and Consumer Affairs, Report on Bill 2-179 at 1 (July 5, 1977) (hereinafter, the "Human Rights Act Report"). In reporting the bill, the Committee on Public Services and Consumer Affairs Council explained that, in doing so, it made "no substantive changes," but acted with "the sole effect [of] . . . enact[ing] that law as a statute and thus mak[ing] it a permanent part of the District of Columbia Code." Id. The Council intended to "reinforce . . . [its] view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government." Id. It also sought 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." Id. at 3.The Council understood that the District's Human Rights Lawwas "widely hailed as the most comprehensive of its kind in the nation" and sought to put it on "firm legal footing" by re-enacting it as a statute. Id. at 2.
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, 930 A.2d at 218 n.4. The Act continues to provide that "[e]very individual shall have an equal opportunity to participate . . . in all aspects of life, including, but not limited to" those aspects specifically described. D.C. Code § 2-1402.01 (2007). This court has noted that "[t]he Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds." Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 732 (D.C. 2000).
III. The Parties' Contentions
Appellants contend that by refusing to accept their proposed initiative, the Board denied the citizens of the District their "guaranteed right under the District of Columbia Charter to be heard" on the issue of the definition of marriage.*fn12 In ratifying the CAA, appellants argue, voters conferred upon themselves and all citizens of the District a right to utilize the initiative process with only one limitation-that the initiative process is not available to propose laws appropriating funds (something the parties agree the Marriage Initiative of 2009 does not purport to do). According to appellants, when voters approved the CAA, including its provision requiring the Council to "adopt such acts as are necessary to carry out the purpose of this subpart within 180 days of the effective date of this subpart," D.C. Code § 1-204.107, they authorized the Council only to provide "procedural" rules to facilitate the people's exercise of the right to initiative (and to do so "within 180 days," id.). Section 1-204.107 did not, appellants contend, authorize the Council to "impose additional substantive limitations on the people's right of initiative." Thus, appellants say, when the Council enacted the IPA and added the Human Rights Act safeguard, the Council exceeded the authority conferred to it by the CAA. Noting that the Charter Amendments are "in the nature of constitutional provisions," Convention Ctr. III,441 A.2d at 915,appellants emphasize that the CAA "cannot be amended or contravened by ordinary legislation [of the D.C. Council.]" Id. ("As implementing legislation, the Initiative Procedures Act is valid, of course, only insofar as it conforms to the underlying Charter Amendments"). Appellants urge us to hold that the Human Rights Act safeguard of the IPA conflicts with the broad right of initiative created by the CAA, and therefore "cannot be used as a basis for disapproving the Marriage Initiative of 2009."*fn13
In contrast, the District contends that the CAA "gave the Council the authority to determine what acts were necessary to carry out its purpose, with no provision for review of that determination by this court or any other body." The District argues that, by giving the Council this authority without defining the purpose and without including words of limitation on the types of acts that the Council could enact to carry out that purpose, the CAA "gave the Council authority broader than that necessary to ensure merely that mechanical procedures exist for initiatives to proceed," and established no "judicially manageable standards for determining whether the Council has properly exercised its discretion." As a result, the District asserts, whether the Human Rights Act safeguard is necessary to the purpose of the CAA is a "non-justiciable political question." The District emphasizes that the Council itself passed the CAA in the same Council session in which it devised the IPA, suggesting that the Council well understood the CAA's purpose as it carried out its mandate to enact necessary implementing law. Thus, the District urges, even if this case is justiciable, under well-established principles of statutory interpretation, this court should presume that the Council acted in conformity with that purpose when it enacted the Human Rights Act safeguard of the IPA. Therefore, the District maintains, any review of the Council's action "should be highly deferential." The District also stresses that section 752 of the Home Rule Act gave the Council broad "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.
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, 601 A.2d at 12, it can be no broader than the Council intended when it initiated legislation to share its direct legislative authority with the electorate. This is an important point, which reflects the fact that the people's right of initiative in the District is quite different from the right of initiative in other jurisdictions.*fn14 In other jurisdictions, it is the people who, through state constitutions, have conferred rights on the legislature, but have reserved general legislative power to themselves as well.*fn15 By contrast, in the District, through section 303 of the Home Rule Act, Congress gave a broad grant of legislative power to the Council alone (subject to specified restrictions set out in Title VI, including Congress's power to disapprove Council legislation). In passing the CAA, the Council had to decide the extent of the legislative power it would share with the people.*fn16 Thus, to resolve the issue that is before us, the Council's intent when it passed the CAA is paramount.*fn17 Cf. Stevenson v. District of Columbia Bd. of Elections & Ethics, 683 A.2d 1371, 1376 (D.C. 1996) (reasoning that ambiguous language in the CAA must be read in a way that expresses the Council's intent and rejecting the "premise that the bill as enacted meant something different from the bill the Council intended").
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, 491 U.S. 440, 454-- 55 (1989); Brizill, 911 A.2d at 1216 n.8 ("The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used"). Thus, in our effort to determine the Council's intent, we turn first to the language of the CAA. As already described, the definitional section of the CAA defines the term "initiative" as "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. § 1-204.101 (a). This is the language on which appellants focus primarily, arguing that the "except laws appropriating funds" phrase is "the exclusive substantive limitation" on the right to initiate legislation.
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. III, 441 A.2d at 918 (explaining that voters' power to legislate by initiative can be no broader than the Council's legislative power). Since section 1-204.101 (a) obviously could not and did not remove those limits, it cannot be read as expressing the entire scope of restrictions on the initiative right. Rather, section 1-204.101-which Congress recognized as merely "defin[ing] the operative terms" of the CAA*fn18 -does not purport to address, and is ambiguous as to, whether there are other limitations on the right to initiative (and referendum).*fn19 The Human Rights Act safeguard is not inconsistent with that ambiguous language.*fn20
b. The Council's Authority to "adopt acts as are necessary to carry out the purpose" of the CAA
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."*fn21 This language is in marked contrast to the counterpart language used in the bill that Councilmember Hobson introduced on January 3, 1977 (Bill 2-2, which, as amended, became the CAA). Bill 2-2 directed that "[t]he Council of the District of Columbia shall provide the manner in which petitions shall be circulated, presented and certified and measures submitted to the electors." See D.C. Council, Comm. on Gov't Operations, Report No. 1 on Bill 2-2 at Attachment A 4 (March 16, 1977) (hereinafter, "CAA Report"). The CAA "necessary to carry out the purpose" language also is in stark contrast to the language used in the bills that were introduced in Congress (bills that culminated in passage of the Home Rule Act) that would have created a right to initiative and mandated the Board (not the elected Council) to "prescribe such regulations as may be necessary or appropriate (1) with respect to the form, filing, examination, amendment, and certification of initiative petitions, and (2) with respect to the conduct of any election during which any such petition is considered." Hearing on S. 1603 and S. 1626, 92d Cong.163. Similarly, the CAA language contrasts with the language used in section 303 (c) of the Home Rule Act, which also afforded the Council a model it might have used to declare its authority to enact merely procedural rules governing the initiative and referendum process. See D.C. Code § 1-203.03 (c) (2006) ("The Board of Elections and Ethics shall prescribe such rules as are necessary with respect to the distribution and signing of petitions and the holding of elections for ratifying amendments to subchapter IV of this chapter according to the procedures specified in subsection (a) of this section"). By comparison to all of those formulations, the "necessary to carry out the purpose" language that the Council used in section 1-204.107 appears to be purposefully undefined.*fn22 Notably, in other contexts, virtually identical language has been used to authorize the adoption not only of procedural rules, but also of substantive requirements. See, e.g., District of Columbia Ins. Placement Facility v. Washington, 269 A.2d 45, 48--49 (D.C. 1970) (noting that statute that directed the Superintendent of Insurance to promulgate such regulations as "he shall deem necessary to carry out the purposes" of the statute authorized the Superintendent to direct that insurance placement facilities issue crime insurance).*fn23
The fact that section 1-204.107 placed no express limit mandating that the CAA-implementing legislation must be procedural only may be taken as "a convincing indication that none [i.e., no such limit] was intended." Myers, 272 U.S. at 128.*fn24 At the very least, section 1-204.107 is ambiguous as to whether it authorized the Council to adopt additional restrictions or limitations on use of the initiative process. That being the case, the additional "restriction" that the Council imposed through the Human Rights Act safeguard is not manifestly contrary to the "acts as are necessary to carry out the purpose" language of section 1-204.107.
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.*fn25 We deem it significant that the CAA Report refers to the initiative, referendum, and recall processes as "legacies of the Progressive Era in American politics" that are designed "to provide direct and continual accountability of public officials to the electorate." CAA Report, at 2; see also H.R. Rep. No. 95-890, at 8 (containing the same explanation).*fn26 If this is the broad purpose of the CAA, the Council could reasonably have thought, for example, that it was necessary to that purpose-i.e., the purpose of helping to ensure that the Council was accountable to the entire electorate-for the Council to disallow use of the initiative or referendum process to enact legislation that would have the effect of discriminating against sectors of the electorate who might need protection from the "major forms of discrimination currently encountered by citizens."*fn27 Human Rights Law Report, at 1 (describing the target of the Human Rights Law).
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 between the purpose of the CAA and the Human Rights Act safeguard. The "degree of [the safeguard's] necessity, the extent to which [it] conduce[s] to the end, the closeness of the relationship between the means adopted and the end to be attained, [were] matters for [the legislature's] determination alone." Comstock, 130 S.Ct. at 1957. To be "necessary to carry out the purpose" of the CAA, it was not required that the Human Rights Act safeguard be absolutely necessary to enable the initiative and referenda processes to be launched.*fn28 To conclude that the Human Rights Act safeguard is not inconsistent with the CAA, it is enough that we can conclude (as we do) that, on its face, the Human Rights Act safeguard is not manifestly contrary to the "purpose" of the CAA.
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 thelanguage 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, 537 U.S. 186, 213 (2003) (quoting Myers, 272 U.S. at 175); see also Printz v. United States, 521 U.S. 898, 905 (1997) ("[E]arly congressional enactments provide contemporaneous and weighty evidence of the Constitution's meaning[.]") (citations and internal quotation marks omitted). The principle that the Supreme Court re-affirmed in Eldred is squarely applicable here, because the Council that authored and, in April 1978, began consideration of the bill that became the IPA was largely the same Council that passed the CAA in May 1977.*fn29 We agree with the District that these facts-i.e., the passage of the IPA by Council members who also were the "framers" of the Charter Amendments, and the near-contemporaneity of their work on first the CAA and then the IPA-dictate that we accord substantial deference to the Council's "legislative construction"*fn30 of the CAA as expressed in the IPA, which was intended to implement the CAA.*fn31
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, 645 A.2d 594, 596--99 (D.C. 1994) (striking down IPA provision that required the Board to use the November 1989 voter registration roll to calculate the number of signatures required for an initiative or referendum petition where the specific terms of the CAA required use of the December 1993 voter registration roll, because "to the extent any IPA provision is inconsistent with the Charter Amendments, the latter controls"); see also INS v. Chadha, 462 U.S. 919, 944 (1983) (explaining that longstanding acceptance will not "save [a practice] if it is contrary to the Constitution"). But where, as here, the relevant CAA provisions admit of more than one meaning, the Council's legislative construction of those provisions when it drafted the IPA less than a year after it passed the CAA is entitled to substantial weight. Myers, 272 U.S. at 113, 174--75.*fn32 Thus, we must begin with a presumption that the Human Rights Act safeguard that the Council enacted as part of the IPA is consistent with the CAA.
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.*fn33 But the elected representatives of the people-the Council and the Mayor-thought otherwise. Importantly, it was the Council members, not the lawyers, who were privy to the full panoply of discussions, conferences, and considerations that led to adoption of the CAA, and who had the authority to propose and vote on the IPA. It is their understanding that informs our analysis.*fn34 An observation by the Supreme Court in Myers is instructive. The issue before the Court in that case was whether "under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate." 272 U.S. at 106. The Court noted that the First Congress had decided the issue-i.e., had "early adopted as the practical construction of the Constitution that this power was vested in the President alone[,]" id. at 153-"within two years after the Constitutional Convention and within a much shorter time after its ratification[,]" and while "number[ing] among its leaders those who had been members of the Convention." Id. at 136. Regarding the First Congress's decision, the Supreme Court observed that "[i]t was of course to be expected that the decision would be received by lawyers and jurists with something of the same division of opinion as that manifested in Congress, and doubts were often expressed as to its correctness." Id. Nevertheless, the Court observed, "the acquiescence which was promptly accorded [the First Congress's interpretation] after a few years was universally recognized." Id. "[T]he decision of Congress in 1789 and the universal practice of the Government under it, had settled the question beyond any power of alteration." Id. at 146 (quoting Parsons v. United States, 167 U.S. 324, 330 (1897)). So, here, the doubts expressed by lawyers who had neither the authority to enact the CAA nor were answerable to the electorate do not undermine our reliance on the Council's interpretation (as reflected in the IPA) of language in the CAA that can bear more than one meaning.
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, 415 A.2d at 1367 (Gallagher, J., concurring) (internal quotation marks omitted). As the Supreme Court reasoned long ago in Myers, in determining ultimately whether to accept the legislature's near-contemporaneous construction of an ambiguous constitutional provision, it is important to understand the context in which the framers did their work and the concerns that animated them.*fn35 Accordingly, we look to the context in which the Council passed the CAA (both the original version of the CAA and the revised version that was put to voters in November 1977) and the broader legislative agenda and objectives that motivated Council members at the time.
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.*fn36 As described above, the Council explained that it intended the re-enactment to "forcefully convey to the executive and administrative agencies of the District Government the importance which the Council places on vig[o]rous enforcement of its provisions" and to reinforce and underscore the Council's intent that the District's human rights law be given the "highest priority" and "be read in harmony with and as supplementing other laws of the District." Human Rights Act Report, at 3. The Council emphasized, inter alia, its objective to reinforce the principle that the Human Rights Law was intended as a supplement to every District licensing and benefit scheme-to make it "unequivocally clear, for example, that a licensed establishment which has been found to discriminate in violation of the Act, could have its license suspended, revoked, or otherwise restricted for that reason." Id.*fn37 The Council explained, too, that it was taking action in the wake of Newsweek, 376 A.2d 777, a decision of this court issued on March 28, 1977, and an earlier decision from 1974,*fn38 that called into question the District government's powers to enforce some of the remedies provided in the Human Rights Law, which had been promulgated by the pre-Home Rule Council (under its more limited powers) as a regulation rather than a statute. Human Rights Act Report, at 2. During the Council discussion of the bill upon its final reading, Councilmember Barry urged the Council to "go on record as carrying out our progressive tradition in this city of being in the forefront of human rights," and to make the District's human rights law "as broad and as sweeping as we possibly can," to eliminate discrimination "under any guises." Final Reading of Bill 2-179, "The Human Rights Act of 1977," at 75 (July 26, 1977). Councilmember Rolark explained that she co-sponsored the bill because she "kn[e]w how hard that fight has been to obtain human rights in the District of Columbia for all of us and I do underscore 'all.'" Id. at 76.
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, 364 A.2d 1183, 1185 (D.C. 1976).*fn39 For this reason, we are persuaded that the Council would have understood the human rights law as "supplementing" the CAA, Human Rights Act Report, at 3, and as an implied limitation on the initiative and referendum prerogative (in a manner similar to the way in which the District's human rights law was and is a limitation implied in the various "permit, license, franchise, benefit, [and] advantage" schemes administered by agencies of the District government. D.C. Code § 2-1403.17 (a)).*fn40 See IPA Report, at 10 ("It is [an] implied restriction to ensure that no initiated measure will establish an affirmative policy in favor of discrimination in this community"). Stated differently, we are persuaded that the Council would have viewed the CAA as permitting citizens to place initiatives and referenda on the ballot only insofar as consistent with the District's human rights law (and that, by broadly describing its mandate to adopt "acts as are necessary to carry out the purpose" of the CAA, the Council left the door open for the IPA to incorporate explicitly that human rights safeguard).*fn41 "[T]o hold otherwise" would be to conclude that the Council intended to confer an initiative right that could "make it impossible[,]" Myers, 272 U.S. at 164, to achieve the Human Rights Act objectives that the Council emphasized had the highest priority.
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.*fn42
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 violative of the Equal Protection Clause of the Fourteenth Amendment, Proposition 14, an initiative measure that provided that the state could not abridge the right of any person to sell or decline to sell his property as he or she chooses. 387 U.S. at 370--71. The Supreme Court held that "[t]he California Court could very reasonably conclude" that the result of Proposition 14 was that "[t]he right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter," id. at 376--77, and that the initiative measure would "significantly encourage and involve the State in private discriminations." Id. at 381.
Having studied Reitman, 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.*fn43 The Council cited the language in Reitman that "the initiative process may not be used to place the Government in the posture of affirmatively condoning discrimination" and that "when the Government's official position of neutrality toward protected minority classifications (such as those identified in the Human Rights Act of 1977) is removed and a policy of discrimination is imposed, such measures will fail." IPA Report, at 9. Accordingly, the Committee recommended including in the IPA a mandate that the Board not accept any initiative or referendum that would authorize discrimination or have the effect of authorizing discrimination prohibited by the Human Rights Act.*fn44
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 implements the intent of the CAA.*fn45
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, "[n]otwithstanding 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).*fn46
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 § 1-203.03 (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 § 1-207.61 (a) (2006) (providing that the provisions of the Home Rule Act "shall prevail and be deemed to supersede" any other laws with which they are in conflict). Moreover, the "[n]otwithstanding any other provision of this Act or of any other law" language of section 752 is "strong stuff" that cannot be assumed to have been superseded by an after-enacted law. Winters, 596 A.2d at 573 (Schwelb, J., concurring) (reasoning that "[a] clearer statement [than "notwithstanding any other provision of law"] is difficult to imagine" and that this language "must be read to override any conflicting provision of law in existence at the time" and as "powerful evidence that Congress did not intend any other, more general, legislation, whenever enacted, to qualify the authority . . . set out" in the Act that contains the "notwithstanding" clause) (italics omitted). And, the legislative history of the Home Rule Act suggests strongly that, through section 752, Congress intended to give the Council authority to legislate on substantive matters regarding elections (and not merely to establish procedures).*fn47
At the same time, "a statute generally should be read to give effect, if possible, to every clause," Heckler v. Chaney, 470 U.S. 821, 829 (1985) (citation and internal quotation marks omitted), and it is a "basic axiom . . . that courts should construe all legislative enactments to give them some meaning[.]" Rosado v. Wyman, 397 U.S. 397, 415 (1970). Adhering to these basic rules of construction, we decline to interpret the Council's authority under section 752 of the Home Rule Act in a way that effectively would mean that the initiative right, conferred through the Charter-amending procedures also set out in the Home Rule Act, could be rendered meaningless, or in a way that would so diminish the initiative right as virtually to nullify it. This "basic axiom" articulated in Rosado is especially applicable here since the right of initiative is "a right that Congress affirmatively approved." See Stevenson, 683 A.2d at 1375 ("[I]t is not without significance that Congress affirmatively approved the Charter Amendments Act after passage by the Council."). Accordingly, we must, if we can, harmonize section 752 and the CAA. We can do so, as follows.
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 § 1-1106 (a) (1973). We interpret section 752 to confer upon the Council the authority to enact laws giving direction to the Board in the handling of election matters, notwithstanding the Board's status as an independent agency.*fn48
This is what the Council did in imposing the Human Rights Act safeguard of the IPA, by declaring that, consistent with the Council's interpretation of the scope of the right of initiative in the CAA, the Board must refuse to accept initiative measures that it determined would authorize prohibited discrimination. In doing so, the Council explicitly relied on its authority under section 752. See IPA Report,at 11 ("Further legal support for the provisions of the enabling legislation here presented are found in [section 752], which grant[s] the Council plenary authority over all election matters."). Under section 752-and despite what one court has called the "general rule favoring postelection review" of the validity of a proposed initiative measure*fn49 -the Council had authority to require the Board to conduct pre-election review of whether the subject matter of a proposed initiative is a proper subject matter. See Convention Ctr. III, 441 A.2d at 914 (concluding that the IPA mandate that the Board exclude from the ballot a referendum measure that would negate a budget-request act "comports with the Charter Amendment limitations on the initiative right [and that] the reliance of the Board . . . on that provision was entirely proper").*fn50 The Board's decision, as has been made evident by this and many other cases, is subject to prompt judicial review.
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.*fn51
C. The Proposed Initiative Would Authorize or Have the Effect of Authorizing Discrimination Prohibited by the Human Rights Act
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, 653 A.2d 307 (D.C. 1995), establishes "conclusively" that the Human Rights Act "does not reach the marital relationship."
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.*fn52 In Dean, a panel of this court considered a claim by a same-sex couple that, "by refusing to issue them a marriage license, the Clerk [of the Superior Court acting through the Marriage License Bureau] 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)." 653 A.2d at 318. Before reaching this issue, the court set out a lengthy discussion of the language and legislative history of the District's marriage statute, which, the Dean court concluded, "demonstrate that neither Congress nor the Council of the District of Columbia has ever intended to define 'marriage' to include same-sex unions." Id. at 310. The Dean opinion noted that the only significant changes in the District's marriage and divorce provisions since 1901 had occurred in the Marriage and Divorce Act of 1977, D.C. Law 1-107, 1977 D.C. Stat. 114. Id. at 311. On the path to enacting that legislation, which "merely amended existing code provisions," Id. at 312, the Council had declined to act favorably on a bill introduced by Councilmember Dixon that would have permitted marriages between persons of the same sex. Id. at 311. The court saw no "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. Id. at 314. Rather, the court concluded, there was a "consistent legislative understanding and intent that 'marriage' means-and thus is limited to-unions between persons of opposite sexes." Id. at 315. This "statutory understanding [was] further confirmed by the ordinary sense and meaning traditionally attributed to the word 'marriage'" in dictionary definitions. Id. The court could not "conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions." Id. ("[C]ases from other jurisdictions with marriage statutes similar to the District's . . . have uniformly interpreted [']marriage,' by definition, as requiring two members of opposite sexes").
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.*fn53 The court further acknowledged that "[t]he 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." Id. The court reasoned, however, that the Council "did not intend the Act to prohibit every discriminatory practice," id., and went on to hold:
[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.*fn54 The proposed initiative would require District government agencies and offices that provide or administer an array of services, programs, and benefits otherwise available to married persons, to deny certain of those services, programs, or benefits to individuals who are partners to a same-sex rather than opposite-sex union.*fn55 The initiative thus would take away from those individuals a civil right that the Council has seen fit to recognize and expressly allow, and its effect would be to authorize discrimination on the basis of sexual orientation. Although, theoretically, it is possible that heterosexuals of the same gender would enter into a same-sex marriage, there can be no dispute that the impact of District agencies' refusal to recognize same sex-marriage would fall most heavily on gay and lesbian residents,*fn56 denying them the ability to participate fully in an important aspect of life in the District.
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 "merely a technical change, whereby the language [that] prohibits specific discriminatory types of petitions has been deleted . . . . The effect is synonymous with that of Bill 2-317 [which contained the list of proscribed categories of discrimination, including sexual orientation]." Memorandum from Deborah K. Green, Legislative Assistant to the Chairman, to the Committee on Government Operations, on Bill 3-2, the "Initiative Referendum and Recall Procedures Act of 1979," February 6, 1979, at 2.
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., 546 F. Supp. 54, 74 (E.D. Mich. 1982). Moreover, in enacting the Human Rights Act, the Council re-enacted prior law (the Human Rights Law) that explicitly was intended to "provide a regulation of sufficient scope and flexibility to be responsive to future needs for the protection of civil and human rights," since "there may be contexts and reasons for discrimination tomorrow that we do not anticipate today." Human Rights Law Report, at 2. We believe it would contravene the legislative intent to require the Board to apply a dated version of the Human Rights Act that may not be, as the pre-Home Rule Council described and as the Home Rule Council implicitly echoed, adequate to answer the "future needs and circumstances of modern life." Id.
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.
FISHER, Associate Judge, 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.*fn57
The following year, the Council enacted implementing legislation known as the Initiative, Referendum and Recall Procedures Act of 1979 (the "IPA"). In addition to establishing procedures for submitting, processing, and voting on an initiative petition, the IPA placed a limit on the subject matter that could be addressed by an initiative. The Council instructed the Board of Elections and Ethics not to accept a measure if it "authorizes, or would have the effect of authorizing, discrimination prohibited under" the District of Columbia Human Rights Act. This subject matter limitation on the right of initiative is not found in the Charter, which created that right, or in the more comprehensive Home Rule Act, which places certain limits on the legislative power of the District.
In 2009, appellants*fn58 proposed that the voters exercise their right of initiative and declare that "[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia." The Board refused to accept the measure, holding that the proposal was not a "proper subject of initiative" because it would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act. This court must decide, as a matter of first impression, whether the IPA's "Human Rights Act limitation" is a valid restriction on the right of initiative. For the reasons which follow, we would hold that it is not.
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*fn59 petitions to the Board, seeking to suspend two acts of the Council relating to same-sex marriage, but their efforts were unsuccessful. The Board rejected the proposed referenda, citing the Human Rights Act ("HRA"), litigation ensued, and the acts became law.*fn60 "No act is subject to referendum if it has become law according to the provisions of § 1-204.04 [after a period of congressional review]." D.C. Code § 1-204.102 (b)(2) (2006).
The Jury and Marriage Amendment Act of 2009, which became law on July 7, 2009, provides that the District of Columbia will recognize "[a] marriage legally entered into in another jurisdiction between 2 persons of the same sex . . . ." D.C. Code § 46-405.01 (2010 Supp.). On March 3, 2010, the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 became law. It allows couples of the same sex to marry in the District of Columbia. D.C. Code § 46-401 (2010 Supp.).
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.*fn61
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, 442 A.2d 110, 113-14 (D.C. 1982) (discussing Congress's delegation of legislative power). Congress intended, among other things, to "grant to the inhabitants of the District of Columbia powers of local self- government . . . and, to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters." D.C. Code § 1-201.02 (2006).
Nevertheless, the Home Rule Act contains several limitations on the legislative power of the District.*fn62 For example, the Council has no authority to "[i]mpose any tax on property of the United States," to enact a "commuter tax" on the income of persons who do not reside in the District, to alter the organization and jurisdiction of the District of Columbia courts, or to "amend or repeal any Act of Congress . . . which is not restricted in its application exclusively in or to the District[.]" D.C. Code § 1-206.02 (a)(1), (3), (5), (8) (2006); see also D.C. Code § 1-206.03 (restrictions related to the budget process).
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, 441 A.2d at 903 (plurality opinion) (legislation enacted by the Council must "be consistent with the U.S. Constitution and the Home Rule Act"); id. at 930 (dissenting opinion) ("it is beyond serious dispute that legislation may not amend a constitution (the Charter)"); District of Columbia v. Washington Home Ownership Council, Inc.,415 A.2d 1349, 1367 (D.C. 1980) (en banc) (concurring opinion) (referring to the Home Rule Act as "the 'constitutional' analog").
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 § 1-203.03 (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 § 1-125 (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 § 1-203.03 (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,399 A.2d 550, 551 (D.C. 1979) (Convention Center I), and they may not be changed by ordinary legislation. "We are required to construe the right of initiative liberally . . . and may impose on the right 'only those limitations expressed in the law or "clear[ly] and compelling[ly]" implied.'" Hessey v. Burden, 584 A.2d 1, 3 (D.C. 1990) (Hessey I) (quoting Convention Center III, 441 A.2d at 913).
As amended, the Charter includes one express limitation on the subject matter of an initiative*fn63 -- the voters may not propose "laws appropriating funds."*fn64 Other express limitations are found elsewhere in the Home Rule Act; as we have already mentioned, the legislative power of the District (whether exercised by the electors directly or by the Council) does not extend to certain enumerated subjects. Some limitations are implicit -- "[t]he initiative right must conform to the structure of government established by Congress in the Charter." Hessey v. District of Columbia Board of Elections and Ethics, 601 A.2d 3, 19 (D.C. 1991) (Hessey II). Importantly, all of these limitations, whether express or implied, are found in the Charter or the Home Rule Act.
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, 631 A.2d 354, 371 (D.C. 1993). Title 34 also drew upon a rich history of local legislation, police regulations, and Commissioners' Orders dating back to 1869 that prohibited various types of discrimination in the District of Columbia.*fn65
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, 930 A.2d 210, 217 (D.C. 2007). The first section of the Human Rights Act explains that the legislature intended "to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit . . . ." The substantive provisions which existed in 1977 prohibited discrimination in public accommodations, employment, educational institutions, and housing and commercial space based upon many characteristics, including sex and sexual orientation.
"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 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, 830 A.2d 874, 887 (D.C. 2003) (en banc) (quoting D.C. Council, Committee on Government Operations, Report on Bill 12-34, "The Human Rights Amendment Act of 1997," at 2 (May 29, 1997)).
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., 749 A.2d 724, 732 (D.C. 2000) (citation and internal quotation marks omitted), and its reach has expanded significantly since 1977.*fn66 "Among the statute's basic purposes is reinforcement of the Council's view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government. . . ." Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 33 (D.C. 1987) (en banc) (internal quotation marks and citation omitted). Nevertheless, by contrast to the Charter, the Human Rights Act is not part of our local "constitution." The Council may amend the Human Rights Act by ordinary legislation, and frequently has done so. See supra note 10.
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.
V. 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-at-Large 33, 34-35 (1978 Comp.) (the codified statute, D.C. Code § 1-204.107, uses the term "subpart" in place of "Amendment"). The outcome of this appeal depends mainly on how we construe this portion of Amendment No. 1.
A. Creating Time to Implement the CAA
The District of Columbia asserts that "[d]eciding 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," 399 A.2d at 553, for the Council to pass "enabling legislation," id. at 551, 552, "implementing legislation," id. at 553, or "implementing acts." Id. "[T]he drafters chose the October 1 date on the assumption that the necessary preparations for administering an initiative election -- the passage of implementing legislation and the allocation of monies to the Board -- would be completed." 399 A.2d at 553. If the Council acted, as directed, within 180 days, the implementing steps would be completed before the Amendment took effect on October 1.*fn67 Notably, Section 8 of Amendment No. 1 does not purport to enlarge the Council's authority; it does not contain any additional delegation of Congressional power.
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.*fn68 That model might have been used if the Council, the voters, and the Congress intended that Section 8 enhance the power of the Council. The fact that the word "necessary" appears in both places does not make this an apt comparison.
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., 872 A.2d 633, 652 (D.C. 2005) (en banc) ("[W]e do not read statutory words in isolation; the language of surrounding and related paragraphs may be instrumental to understanding them."). Rather than being "undefined," and perhaps indiscernible, as the District suggests, the "purpose" of the CAA was "[t]o amend the Charter of the District of Columbia to provide for the power of initiative, referendum, and recall." D.C. Law 2-46, Preamble, 1978 D.C. Statutes-at-Large 33 (1978 Comp.). The CAA contained two amendments to the District Charter, each of which had a distinct purpose. Charter Amendment No. 1 -- now codified as Subpart 1 -- establishes the rights of initiative and referendum. The codified version of Section 8 of Amendment No. 1 (D.C. Code § 1-204.107) instructs the Council to "adopt such acts as are necessary to carry out the purpose of this subpart [Amendment] within 180 days of the effective date of this subpart." Charter Amendment No. 2 -- Subpart 2 as codified -- establishes the right of recall. A corresponding provision, D.C. Code §1-204.115, instructs the Council to "adopt such acts as are necessary to carry out the purpose of this subpart . . . ."
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.*fn69 The Board must reject a petition that is not in the proper form. D.C. Code § 1-1001.16 (b)(1)(B). Moreover, "the Board shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative . . . under the terms of title IV of the District of Columbia Home Rule Act [the District Charter] . . . ." D.C. Code § 1-1001.16 (b)(1). These were genuine implementing steps. But the Council went further and inserted a restriction on the subject matter an initiative could address -- a limitation not found in the Charter or in the Home Rule Act.
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 § 1-1001.16 (b)(1)(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 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).*fn70
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 . . . (1974) (quoting Marbury v. Madison, 1 Cranch 137, 177 . . . (1803)).
District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d at 1351 n.5.
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, 645 A.2d 594, 598-99 (D.C. 1994) (citing Convention Center III, 441 A.2d at 915). "[L]egislation implementing the Charter Amendments is valid only if it does not conflict with the Charter Amendments." Id. "Nor could the Council amend the Charter Amendments by enacting the IPA since, as the Self-Government Act clearly provides, the Charter may be amended only as provided in D.C. Code § 1-205(a) (1992) [now codified as D.C. Code § 1-203.03 (a) (2001)]." Price, 645 A.2d at 599.
VI. Appellees' Arguments
A. Should We Abstain?
Invoking the Supreme Court's decision in Baker v. Carr, 369 U.S. 186 (1962), the District urges us to abstain from deciding this case. It argues, among other things, that the Council's inclusion of anti-discrimination provisions in the Initiative, Referendum and Recall Procedures Act of 1979 has "functioned successfully" over the past decades and now forms part of a statutory scheme upon which the government and the public rely. This argument surely overstates the case. Although the Human Rights Act limitation on the right of initiative has existed for more than thirty years, this is the first challenge to its validity.*fn71 More importantly, Baker makes plain that "[t]he courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority[,]" 369 U.S. at 217, which is precisely what is at issue here.
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 congressionally delegated authority.'" Atchison v. District of Columbia, 585 A.2d 150, 156 (D.C. 1991) (quoting American Federation of Government Employees v. Barry, 459 A.2d 1045, 1050 (D.C. 1983)).
We frequently have had to decide the scope of the Council's authority under the Home Rule Act. Compare Washington Home, 415 A.2d 1349 (Council had no authority to pass another substantially identical emergency act in response to same emergency) with United States v. Alston, 580 A.2d 587 (D.C. 1990) (after period of congressional review was doubled for certain types of legislation, Council had authority to pass successive, substantially identical emergency acts to preserve the status quo while identical legislation enacted by the Council after two readings was pending before Congress for review); see also Umana v. Swidler & Berlin, Chartered, 669 A.2d 717, 724 n.15 (D.C. 1995) (Home Rule Act does not "limit the Council's authority to enact or to alter the substantive law to be applied by the courts"); Capitol Hill Restoration Society, Inc. v. Moore, 410 A.2d 184 (D.C. 1979) (Council's grant of appellate court jurisdiction in certain noncontested cases impermissibly altered this court's jurisdiction.). Furthermore, we have often considered the proper scope of the right of initiative, and we have rejected an "argument that adoption of the initiative right by the Council, Mayor, and electorate violated the District's Charter." Stevenson v. District of Columbia Board of Elections and Ethics, 683 A.2d 1371, 1375 (D.C. 1996). We also have addressed the validity of a separate portion of the IPA. See Price, 645 A.2d at 600 (concluding that a portion of the IPA conflicted with the Charter Amendments). The District does not satisfactorily explain why this case is so different that we must, or even may, abstain from deciding it.
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 29 ("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.*fn72
The District misplaces its reliance on Eldred v. Ashcroft, 537 U.S. 186 (2003), where the Supreme Court noted that it "has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution's] provisions." Id. at 213 (quoting Myers v. United States, 272 U.S. 52, 175 (1926)). This case is not comparable to Eldred, where the Court relied upon "Congress' unbroken practice since the founding generation . . . ." 537 U.S. at 213-14. "History reveal[ed] an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime." Id. at 200. The Court explained: "Such consistent congressional practice is entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive." Id. at 213 (internal quotations and citation omitted).
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 "routine application" or "consistent legislative practice" that has been followed by the Council or approved by the voters or Congress.*fn73 The most that can be said is that the Human Rights Act limitation has gone unchallenged for more than thirty years. The Myers decision, on which Eldred relied, makes clear that the legislature may not unilaterally determine the extent of its authority:
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.
272 U.S. at 170-71. It was a crucial factor in Myers that "the decision of the First Congress on a question of primary importance in the organization of the government . . . was soon accepted as a final decision of the question by all branches of the government." Id. at 136. Nothing comparable has happened here, and we therefore are not persuaded by the District's argument relying on Eldred and Myers.
C. The Council's Rationale
When 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?*fn74 No satisfactory answer has emerged from the legislative history of the CAA. However, the history of the IPA strongly suggests that the "Human Rights Act limitation" was an afterthought, a concern brought to the Council's attention after the Charter had been amended. D.C. Council, Report on Bill No. 2-317 at 5 (May 3, 1978) ("Subsequent to the public hearing [on the IPA], the Committee staff received myriad telephone calls in support of an amendment to the enabling legislation which would restrict consideration of initiative measures which foster discrimination. Such an amendment was adopted by the Committee in reporting this measure."). When imposing this limitation on subject matter, the members of the Council did not suggest that the CAA had empowered them to do so. Rather, they invoked authority outside the CAA -- the Supreme Court's decision in Reitman v. Mulkey, 387 U.S. 369 (1967), and the Council's own statutory authority over elections. D.C. Council, Report on Bill No. 2-317 at 11 (May 3, 1978). Neither rationale gave the Council authority to amend the Charter.
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." 387 U.S. at 374. When enacted, it became Art. I, § 26, of the California Constitution,*fn75 but the state Supreme Court held that it "was invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment." Id. at 373. Affirming, the Supreme Court of the United States accepted the California court's conclusion "that § 26 would and did have wider impact than a mere repeal of existing statutes. . . . The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government." Id. at 376-77. "The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations[,]" and the Supreme Court of the United States concluded that it had "been presented with no persuasive considerations indicating that these judgments should be overturned." Id. at 381.
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, 413 P.2d 825, 829 (Cal. 1966) (quoting the court's previous order). Moreover, the provision was struck down because it violated the federal Constitution, not because it was deemed inconsistent with a state law. Reitman clearly does not stand for the proposition that one act of the Council (here, the IPA) can place another act of the Council (even one prohibiting discrimination) off-limits to the initiative process.
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), which grants the Council "authority to enact any act or resolution with respect to matters involving or relating to elections in the District." We emphasize, however, what we have said before -- "nothing in Section 752 . . . grants the Council authority to amend the Charter . . . ." Price, 645 A.2d at 599.
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, 645 A.2d at 599. And by restricting the subject matter which an initiative may address, the Human Rights Act limitation unmistakably alters (and reduces) the right of initiative. The Council's authority relating to elections, found in Section 752, did not (and cannot) authorize a restriction amounting to an amendment of the Charter.*fn76
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-cumbersome 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.
Although the District concludes that the "Human Rights Act limitation" was wisely imposed, "consistently with our fundamental political traditions[,]"it offers little guidance on how one determines which topics are "inappropriate for direct democracy." If this is to be the standard, it is impossible to predict how large this newly hypothesized exception to the right of initiative may grow in the future.
Even if we assume that the people at large are more likely to discriminate against minorities than are their 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, 585 A.2d at 155 ("[T]he plenary legislative power given the Council includes the authority to repeal existing legislation, whether or not derived from an initiative."). And the courts will strike down any measure that is unconstitutional. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In short, in the District of Columbia, the right of initiative is not an example of unchecked democracy. It exists, rather, in conjunction with a republican form of government based on the principle of separation of powers.
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, 585 A.2d at 156. The Council of the District of Columbia exceeded its authority when it imposed the "Human Rights Act limitation" on the right of initiative. We respectfully dissent.