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.