December 21, 2010 | by Lou Chibbaro Jr.
D.C. files Supreme Court brief defending marriage

D.C. Attorney General Peter Nickles and other city attorneys have urged the U.S. Supreme Court not to take a case filed by a local minister seeking to overturn the city’s same-sex marriage law.

In a 35-page legal brief filed Dec. 17, the city attorneys argue that the D.C. Court of Appeals ruled correctly earlier this year that the District has authority to prohibit a voter initiative or referendum seeking to overturn the Religious Freedom and Marriage Equality Amendment Act of 2009.

“This case is not important enough to merit review” by the Supreme Court because it “lacks national importance as it is confined in effect to the District,” Nickles and the other attorneys said in their brief.

The case, known as Jackson v. the D.C. Board of Elections and Ethics, was initiated by Bishop Harry Jackson and other local opponents of same-sex marriage earlier this year.

The city filed its brief on the last day such a brief could be filed under Supreme Court rules.

Jackson and his allies are seeking to overturn separate rulings by the city’s election board and the D.C. Superior Court and Court of Appeals that the District’s initiative and referendum law doesn’t allow ballot measures that would have the effect of violating the city’s Human Rights Act. The act, among other things, bans discrimination based on sexual orientation.

Most legal observers say the Supreme Court traditionally defers to state appeals courts –- including the D.C. Court of Appeals — in matters that don’t have national implications. The observers, including local gay rights attorney Mark Levine, have said the high court would be violating its own precedent and possibly showing a sign of bias against same-sex marriage should it rule in favor of Jackson’s petition.

The city’s brief also seeks to refute a claim by Jackson’s attorneys that the Supreme Court can take on a case without national significance if the lower court ruling is reached through an “egregious error.”

“In fact, the appeals court decision is correct” and the “egregious error” argument doesn’t apply, Nickles and his team of city lawyers argue in the brief.

Jackson’s petition to the high court, known as a Petition for a Writ of Certiorari,” calls for the court to take on the case and involves a decision by the nine justices to accept or reject that request. Should they accept the case, the justices would then review it on its merits through oral and written arguments and issue a separate ruling.

Arthur Spitzer, legal director of the ACLU’s D.C. area office, said the Supreme Court is likely to decide whether to accept or reject the Jackson case in January.

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

4 Comments
  • Another specious “Bishop” heard from? Why aren’t he and his flock out clothing the naked, ministering to the sick, feeding the hungry and doing all that kind of thing?
    He’ll use this to make political hay and get more money into his pietistic coffers, no doubt.

  • Next, we’ll vote on Bishop Jackson’s personal life.

  • I think the Bishop Harry Jackson is a despicable self-hating queen who needs to be outed. Doesn’t this guy have a life apart from harrassing gay & lesbian people in DC and Maryland, (where this clown actually lives). I am really getting tired of these so-called Christians and their campaigns of hate across America. And if memory serves, and I’m sure that it does, shouldn’t this hateful clown, (Jackson) be under investigation for voter fraud after he claimed he lived in DC while living in Maryland. Lets go after him and his hateful congregation instead of sitting around waiting for them to bash us.

  • If I were the DC Attorney General, i would have filed a motion to dismiss Bishop Jackson’s lawsuit, on the grounds that because he is a religious leader who is motivated by an anti-gay religious doctrine, he has no legal standing to overturn the D.C. marriage equality statute.

    Religious approbatins against homosexuality cannot be employed to justify continued de jure discrimination against gay and lesbian couples by the government, whether the District of Columbia, the 50 states or the federal government. This is strictly forbidden by the U.S. Constitution’s Religious Test Clause (Article VI, Section 2) and by the Establishment of Religion Clause (Amendment I).

    Since the Supreme Court fully decriminalized same-gender sexual relationships in its 2003 Lawrence v. Texas decision that struck down the last remaining anti-sodomy laws, there is no longer any legal justification to bar gay and lesbian couples from marrying. The federal 1996 Defense of Marriage Act and all state laws that do so are therefore unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

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