Will DC be the next California?

by on October 17, 2010  •  In Marriage, Supreme Court

Same-sex marriage became legal in DC in March over protests led by Bishop Harry Jackson, a local minister, who has crusaded first to block the law and now to have it repealed by means of a voter referendum. The DC Board of Elections denied a petition to put the question on the ballot on the ground that, if adopted, the repeal would violate the local anti-discrimination law, a category of proposed laws that the D.C. Charter (analogous to a state constitution) prohibits from being adopted by referenda. 

Jackson's organization – Stand for Marriage DC – tried to get the case before the U.S. Supreme Court on an emergency petition early this year, but the Court declined to hear the case. Writing separately, however, Chief Justice Roberts stated that the petitioners' "argument has some force," but that the proper procedure would be for them to first litigate in the DC court system. Bishop Jackson's group, he wrote, would "have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time." 130 S.Ct. 1279, 1280 (2010). That is what is known as a hint.

Accordingly,the group sought review in the D. C. Court of Appeals (equivalent to a state supreme court), which last summer upheld the decision of the Board of Elections. 999 A.2d 89 (2010).

Now they are back at the Supremes. The Alliance Defense Fund has filed a new cert petition, hoping that Chief Justice Roberts and at least three other Justices will vote to hear the case. (A minimum of four votes is required for the Court to grant cert.)

The case contains obscure questions of federal law that pertain only to DC because of DC's status as a unique quasi-colony in the federal system. If any other issue were involved, I think that the Court would be very likely to deny cert, finding that the legal questions presented did not merit highest court review, in part because of their very limited ramifications.  On gay marriage, though, with four extremely conservative Justices including one who signaled that he was sympathetic, I think all bets are off.

If the Supreme Court does reverse the DC courts, their decision would not involve the constitutionality of gay marriage one way or another. However, a vote on whether to repeal the equal marriage law would be scheduled in DC. The result would amount to an East Coast rerun of Prop 8, with issues of religion and race foregrounded.

In other words, the legal stakes are small, but the political stakes are enormous. This is a case to watch.


3 Responses to Will DC be the next California?

  1. daftpunkydavid October 19, 2010 at 7:15 AM

    when is the petition supposed to be decided? Is there a likely timeline?

  2. Nan Hunter October 19, 2010 at 8:19 AM

    First an opposition to the petition will be filed by the Board of Elections, then the Justices will decide whether to grant cert. There is no deadline for when that decision must be announced, but it is likely in the next two to three months.

  3. daftpunkydavid October 19, 2010 at 8:24 AM

    thanks. your blog is awesome, btw. i try and read it everyday.

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