finding marriage statute constitutional on ground, among others, that it is not a statute of exclusion, like the provision in Romer v. Evans, 517 U.S. 620 (1996), but “a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by the state”
How later courts described this case
- finding marriage statute constitutional on ground, among others, that it is not a statute of exclusion, like the provision in Romer v. Evans, 517 U.S. 620 (1996), but “a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by the state”
- assuming without deciding that D.C. Marriage License Bureau is a place of public accommodation while noting amicus curiae argument by District Human Rights Commissioners that "all District of Columbia agencies are places of public accommodation, within the meaning of the Human Rights Act, because they provide goods and services to District residents”
- finding that this “central purpose . . . provides the kind of rational basis . . . permitting limitation of marriage to heterosexual couples”
- observing Supreme Court has “ ‘never held that only classes with immutable traits can be deemed suspect’ ” (quoting Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989) (Norris, J., concurring))
Written by the judges who cited it.
The opinion
TERRY, Associate Judge:
I join in parts I — III of Judge Ferren’s opinion. I also join in Judge Steadman’s opinion. Accordingly, I vote to affirm the judgment of the trial court in all respects, although not precisely for the reasons stated by the trial court.
The outcome of this case, in my view, turns on the definition of “marriage.” Shake-. speare in his 116th Sonnet wrote of “the marriage of true minds.” In the game of pinochle, the king and queen of the same suit are referred to as a “marriage” when those cards are held by the same player; if that suit is trump, the combination of king and queen is a “royal marriage.” But these and similar expressions are only metaphors, figures of speech derived from the literal meaning of the word that serves as the fulcrum of this case. Judge Ferren, in parts II and III of his opinion, cogently demonstrates that the word “marriage,” when used to denote a legal status, refers only to the mutual relationship between a man and a woman as husband and wife, and therefore that same-sex “marriages” are legally and factually— ie., definitionally — impossible.
This conclusion necessarily disposes of the equal protection issue that Judge Ferren goes on to discuss in part VI of his opinion. That is, if it is impossible for two persons of the same sex to “marry,” then surely no court can say that a refusal to allow a same-sex couple to “marry” could ever be a denial of equal protection. I am willing to assume, for the purposes of this discussion, that homosexuality is an immutable trait; indeed, recent scientific literature strongly suggests that this is so, as Judge Ferren tells us, ante at 346-347 & nn. 49-52. But if two people are incapable of being married because they are members of the same sex and marriage requires two persons of opposite sexes, as Judge Ferren has shown, then I do not see how it makes any difference that the District of Columbia, or any agency of its government, discriminates against these two appellants by refusing to allow them to enter into a legal status which the sameness of their gender prevents them from entering in the first place. Thus Judge Ferren’s discussion of “adjudicative” versus “legislative” facts in *362 part IV, while fascinating, is ultimately irrelevant to the outcome of this case, 1 and the equal protection issue is moot.
It seems obvious that the remedy for the dilemma facing these appellants lies exclusively with the legislature. The Council of the District of Columbia can enact some sort of domestic partners law, bestowing on same-sex couples the same rights already enjoyed by married couples, whenever it wants to. But no court can order a legislature to enact a particular statute so as to achieve a result that the court might consider desirable, or to appropriate money for a purpose that the court might deem worthy of being funded. See Zahn v. Board of Public Works, 274 U.S. 325, 328 , 47 S.Ct. 594, 594-95 , 71 L.Ed. 1074 (1927); Hart v. United States, 118 U.S. 62, 67 , 6 S.Ct. 961, 963 , 30 L.Ed. 96 (1886); cf. Reeside v. Walker, 52 U.S. (11 How.) 272, 289-290 , 13 L.Ed. 693 (1851) (mandamus will not lie against the Secretary of the Treasury to pay a claim when Congress has not appropriated money to pay it). The separation of powers doctrine prohibits such action by a court. Nor can a court alter or expand the definition of marriage, as that term has been understood and accepted for hundreds of years. Thus the Council, and only the Council, can provide Messrs. Dean and Gill with the relief they seek.
Having concluded unanimously that it is impossible for two persons of the same sex to marry, this court cannot also conclude that it is — or even may be — a denial of equal protection to refuse to allow such persons to marry. The two conclusions are inherently inconsistent. 2 If these appellants cannot enter into a marriage because the very nature of marriage makes it impossible for them to do so, then their quest for a marriage license is a futile act, and the District’s refusal to issue a license to them is legally and constitutionally meaningless. They are, of course, free to refer to their relationship by whatever name they wish. But it is not a marriage, and calling it a marriage will not make it one.
. The same could be said about the due process section of Judge Ferren’s opinion, part V, although I agree with him that the Supreme Court has made clear that "marriage" between two persons of the same sex is not a fundamental right, and hence that the denial of a right to enter into such a "marriage” is not a violation of due process.
. Judge Ferren suggests that my rationale is "akin to” the discredited notion that "a divine natural order forbids racial intermarriage,” a notion which the Supreme Court quite properly laid to rest in Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1967). With all respect, Judge Ferren reads too much into this opinion. As a mere judge, I claim no ability to fathom the "natural order,” and any discussion of a divinity that shapes its ends is far beyond the scope of this opinion or the competence of its author. All I am saying is that the very nature of the relationship that we call marriage, as it has been recognized and defined for centuries — indeed, millennia — necessarily excludes two persons of the same sex from entering into that relationship. I leave the theological issues to the theologians; the legal and constitutional issues that this case presents are difficult enough.