October 18, 2010 | by Lou Chibbaro Jr.
Jackson petitions Supreme Court in D.C. marriage case

Attorneys for Bishop Harry Jackson, the minister who has led efforts to kill D.C.’s same-sex marriage law, filed a petition last week asking the U.S. Supreme to weigh in on whether the city should allow voters to decide whether to overturn the law.

In a filing known as a petition for a Writ of Certiorari, Jackson’s attorneys asked the high court to allow Jackson and six others to appeal a decision earlier this year by the D.C. Court of Appeals rejecting their lawsuit seeking to force the city to hold a ballot measure on the marriage law.

D.C. Attorney General Peter Nickles, who has been praised for his strongly worded briefs defending the same-sex marriage law in court, has yet to say whether the city will file a brief opposing Jackson’s Supreme Court petition.

City officials, including presumptive Mayor-elect Vincent Gray, have said they remain strongly supportive of the same-sex marriage law and would martial all the needed resources to defend it if the Supreme Court agrees to take Jackson’s case.

Supreme Court rules say briefs opposing a Petition for a Writ of Certiorari are not mandatory. One gay rights attorney said opposing parties often don’t file opposition briefs if they believe the high court is unlikely to approve a certiorari petition.

“I would think Peter Nickles might still write something,” said gay rights attorney Mark Levine. “But he may choose not to.”

Spokespersons for Nickles and the mayor’s office did immediately respond to calls asking if the city plans to file an opposition brief on the case.

The city has 30 days to file an opposing brief.

Four of the nine Supreme Court justices are needed to approve a petition for certiorari, which allows a case to come before the court for consideration on its merits. The court turns down the overwhelming majority of cases that come before it through petitions of certiorari, according to information posted on the court’s website.

Should the court agree to take the case, five of the nine justices are needed to issue a ruling in Jackson’s favor by overturning the appeals court decision.

Levine said it’s unlikely that the Supreme Court would agree to take the case, although he said its past rulings on some controversial cases have surprised legal observers.

The D.C. Court of Appeals ruled earlier this year that the city’s Board of Elections and Ethics was correct in disqualifying Jackson’s proposed ballot measure seeking to overturn the same-sex marriage law. The election board cited a city law governing voter initiatives and referenda that it said prohibits the city from holding such a ballot measure because, if approved, it would violate the D.C. Human Rights Act’s ban on discrimination based on sexual orientation.

Jackson and his attorneys argue that the law restricting ballot measures that go against provisions in the D.C. Human Rights Act is invalid because it violates the city’s Home Rule Charter, which Congress passed in the early 1970s.

The election board and a D.C. Superior Court judge rejected that claim as did the Court of Appeals. Each said the ballot measure restriction doesn’t violate the Home Rule Charter.

In March, before the appeals court issued its decision on the case, Jackson’s lawyers filed an emergency motion asking the Supreme Court to issue a stay preventing the same-sex marriage law from taking effect until the appeals court ruled on the matter.

Chief Justice John Roberts denied the request for a stay, saying Jackson and others opposed to the marriage law could not show that they could win the case on its merits, or that allowing the law to take effect would cause them irreparable harm at that time.

However, Roberts said in his three-page ruling that Jackson’s argument that the city acted improperly by denying a request for a ballot measure on grounds that it would violate the Human Rights Act “has some force.”

That comment by Roberts has led to speculation by legal experts that the Chief Justice might give at least some consideration to supporting a petition that the Supreme Court take the case, even though the court has a longstanding history of deferring to lower courts on matters that don’t relate to the U.S. constitution or to federal law.

In a comment that same-sex marriage supporters viewed as a hopeful sign, Roberts also stated in his ruling in March that Congress had full authority to prevent the city from adopting its law prohibiting ballot measures that violate the Human Rights Act, but Congress chose not to do so.

Nickles, who wrote the city’s briefs defending the same-sex marriage law against Jackson’s lawsuit, has argued that the law barring ballot measure that violate the Human Rights Act was adopted in full compliance with the Home Rule Charter. He noted that Congress’s decision not to overturn either the ballot measure law or the same-sex marriage law shows there is no federal or constitutional interest in either law and Jackson has no grounds for asking the courts to overturn it.

The Supreme Court is not expected to announce its decision on whether or not to take Jackson’s case until sometime next year.

In addition to Jackson, the individuals that signed on to the petition seeking Supreme Court intervention in the case include Ward 5 ANC Commissioner Robert King, local minister Anthony Evans, former D.C. congressional delegate Walter Fauntroy, Dale Wafer, Melvin Dupree, and Howard Butler.

The group is being represented by attorneys with the Alliance Defense Fund, a conservative religious-oriented litigation group that has challenged same-sex marriages laws in other states.

“Today’s petition by Bishop Jackson to the U.S. Supreme Court is nothing more than a last-ditch attempt by outside interests to try to eliminate marriage equality in the District,” said Joe Solmonese, president of the Human Rights Campaign, in a statement last week. “Every court that has reviewed this case, including two D.C. Superior Court judges and the full Court of Appeals, has found Jackson’s arguments to be without merit,” he said. “The Council and mayor, representing District residents, overwhelmingly approved legislation providing for marriage equality. And we will remain vigilant against any efforts to take it away.”

(Jackson photo is a Blade file photo by Michael Key)

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

10 Comments
  • U.S. Supreme Court has declared marriage to be a “basic civil rights of man,”. They have also said: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

    The 14th amendment says no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause “neither knows nor tolerates classes among citizens.”

  • If the court agrees with the concept that material harm has to be present to hear this request, then I don’t thing Bigot Harry Jackass has a hope in hell of getting his way. That has never stopped bigots elsewhere from screaming for attention like spoiled children always do.

    I also want some assurances that Bigot Harry Jackass is actually a citizen of the District of Columbia. I want official confirmation that he is paying income taxes to the city. While his income may be derived outside the city he’s still required to pay taxes to the city if he is a resident of the city and is registered to vote.

    If he is only a part time resident and maintains a voting residence in another jurisdiction, he lacks standing to challenge any city ordinance.

    If he is registered to vote in the District and is not paying taxes, I believe that would constitute fraud which would subject him to criminal prosecution and a stint in jail.

  • @ equal and Jerry, I like your thinking. Also, it amazes me that these black ministers are so strident in attacking the rights of GLBT folk. You’d think with all of the problems in their own community, they’d be busy until the Rapture.

    If he (and his ilk) really cared about families — then they would target some real causes for the failure of families. The fact is that 50% of marriages end up in divorce. Of course, these are heterosexual marriages since that’s the only kind available! Further, kids are increasing being born to single women. According to the Centers for Disease Control and Prevention’s National Center for Health Statistics for 2007 (the latest year of recorded data) 40% of children in the U.S. are born to single women, this is a blended number. The breakdown is: 28% to white women; 51% of Latinas; and 72% to Black women. Again, 72% are born to SINGLE BLACK WOMEN. But for bigot Jackson and his ilk, it’s just so much easier to argue a red herring than to address the real issues.

  • Let’s send the Mayor and City Council a note:

    eom@dc.gov, dccouncil@dccouncil.us

    Dear City of DC Mayor Adrian Fenty, Council Members, and Chairman Gray,

    As you probably know, Bishop Harry Jackson has filed motion with the Supreme Court challenging the right of LGBT citizens to marry legally in the City of DC.

    DC LGBT Citizens now look to you for your continued protection in preserving the Rights of LGBT Citizens to Marry Legally within the City of DC, and that you now stand by your commitments by Filing Briefs in an effective manner with the Supreme Court in support of the current and newly enacted DC City Law.

    Please do not stand idly by while both Our Rights and Your Hard Work might be swept away.

    Sincerely,

  • Can we see copies of the legal papers?

    What is Bishop Harry Jackson’s address in DC?

    What are the other filers addresses?

    Is Jackson using Church funds to file this Motion?

    Hope Christian Church World Headquarters
    6251 Ammendale Road
    Beltsville, MD 20705

    info@thehopeconnection.org

    Phone: 240-845-0388

  • Bishop Harry Jackson and Eddie Long are two of a kind.

  • Robbie
    Bishop Harry Jackson and Eddie Long are two of a kind.

    [Translate] Comment awaiting moderation.

  • Isn’t the silence of dclive and Ben amazing when they are needed to stand up to a bigot?

  • Bishop Jackson’s appeal to the U.S. Supreme Court should be rejected by the justices on the grounds that Jackson lacks legal standing to file an appeal on a purely local issue.

    Since Congress did not see fit to overturn the D.C. marriage statute — and Congress has the last word on D.C. laws — it is not up to the Supreme Court to decide the matter in the absence of any argument that the law is unconstitutional.

    Moreover, Bishop Jackson’s fight against the law is a thinly-disguised attempt to impose a “religious test” on the marriage law and force the D.C. government to endorse religious approbations against homosexuality by barring gay and lesbian couples from partaking in their constitutionally protected right to marry, a right firmly established by the U.S. Supreme Court in 1967 when it struck down laws that barred interracial couples from marrying.

    Gay and lesbian couples earned the right to marry when the high court struck down the last remaining anti-sodomy laws in 2003 (Lawrence v. Texas), fully decriminalizing gay and lesbian relationships. Combined with the high court’s 1996 decision (Romer v. Evans) that states cannot single out gays and lesbians for exclusion from the constitutionally protected rights and freedoms enjoyed by everyone else, there is, therefore, no legal justification whatsoever to take the right to marry away from gay and lesbian couples in the nation’s capital — or anywhere else in the United States.

    Dismiss Bishop Jackson’s appeal!

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