Chief Justice Roberts Refuses to Block D.C. Same-Sex Marriage Law; Measure Effective Today

With the D.C. Religious Freedom and Civil Marriage Equality Amendment, making marriage available to same-sex couples, going into effect today (March 3), the determined opponents of the measure took a stab at blocking its implementation by seeking a stay from the Chief Justice of the United States, John Roberts, who hears emergency petitions arising in the District of Columbia.  Chief Justice Roberts denied the application on March 2, in an opinion that will be published in volume 559 of the U.S. Reports.  The name of the case is Jackson v. District of Columbia Board of Elections and Ethics.

The petitioners are a group of ministers who are ardently opposed to same-sex marriage, and argue that the question whether same-sex couples should be allowed to marry should be determined by popular vote of the electorate, not by the City Council.  They sought a referendum on the question, but the Superior Court and the District's Court of Appeals rejected their lawsuit, appealing from a decision by the D.C. Board of Elections and Ethics to reject the call for a referendum.  The local bodies maintain that under a D.C. statute, a referendum that would violate the District's Human Rights Act, which prohibits sexual orientation discrimination, may not be put to the voters.  An appeal of that ruling is pending before the U.S. Court of Appeals for the D.C. Circuit.

The argument for the stay was that a referendum to block the law from going into effect cannot be ordered after the law goes into effect, and thus the law should be stayed until all appeals in pursuit of the referendum are exhausted. 

Chief Justice Roberts did not buy the argument, rejecting the stay for the following reasons:

1.  As a matter of "judicial policy"  The Supreme Court has usually deferred to the local courts of the District of Columbia on "matters of exclusively local concern."

2.  The D.C. marriage equality amendments were subject to a 30-day period of review by Congress, "but Congress has chosen not to act," wrote Roberts.  In addition, the D.C. statute that allows the Board to block referenda that would violate the Human Rights ordinance was itself subject to the 30-day period of review, but Congress allowed it to go into effect.  "While these considerations are of course not determinative of the legal issues," wrote Roberts, "they do weigh against granting petitioners' request for a stay, given that the concern is that action by the Council violates an Act of Congress."

3.  Roberts pointed out that once the Act goes into effect, D.C. voters can seek to repeal it by resort to procedures spelled out in the D.C. Charter.  Roberts pointed out that a separate petition for a ballot initiative is pending, and will not become moot when the law goes into effect. 

Taking these three points together, Roberts concluded that the Supreme Court would be unlikely to grant certiorari at present, so a stay was not indicated.

Comments

[Ron O.]

What did you think about Roberts' comment "This argument has some force," located on page 2 of the opinion?

Is there anything to read into with that statement or is it just trying to parse something that isn't there?

[Art Leonard]

I think he was slipping in his view that the argument was not frivolous, but that doesn't mean that he necessarily thinks it is a winning argument.