Supreme Court nears action on D.C. gay marriage case

(Blade photo by Michael Key)

The U.S. Supreme Court could decide as soon as Tuesday whether or not to hear a case seeking to force the District of Columbia to allow voters to decide whether to repeal the city’s same-sex marriage law.

According to the court’s public docket, the nine justices scheduled a private conference among themselves for Friday to discuss the case known as Jackson v. the D.C. Board of Elections and Ethics. Under longstanding court rules, the justices usually announce a decision on whether to accept or reject a case on the Monday following such a conference.

“Generally, if a case is considered at a conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10 a.m. the following Monday,” the court’s website says.

A court spokesperson said because a federal holiday, Martin Luther King Day, falls on Monday, the court is expected to release its decision on the Jackson case on Tuesday.

Bishop Harry Jackson, pastor of a Beltsville, Md., Christian church, and other same-sex marriage opponents filed a petition with the Supreme Court Oct. 12 asking the court to consider hearing the case in a process known as a petition for a Writ of Certiorari. The case consists of their appeal of a lower court ruling that rejected their contention that the city must allow voters to decide the marriage question in a ballot initiative.

The D.C. Court of Appeals upheld the Board of Elections and Ethics’ decision to bar Jackson and his supporters from organizing a ballot initiative on grounds that, if approved, the initiative would violate the city’s Human Rights Act. The Human Rights Act bans discrimination based on sexual orientation.

Jackson and his attorneys argue that the city did not have the authority to ban ballot measures that impact the Human Rights Act because only Congress could make such a change by amending the city’s Home Rule Charter. Gay rights attorneys have joined city attorneys in disputing that contention, claiming the city acted within the scope of the Home Rule charter in the 1970s when it put in place restrictions on certain ballot measures.

City attorneys defended those restrictions in a brief submitted before the Supreme Court on Dec. 17. The attorneys, among other things, argued that the case involves a local matter pertaining to the city’s initiative and referendum law. They noted that the high court has a longstanding precedent of deferring to state or D.C. appeals courts on cases that don’t have a national impact.

If the Supreme Court rejects Jackson’s request to take on the case, the D.C. Court of Appeals decision remains in force to permanently prevent a ballot measure on the same-sex marriage law.

If it accepts the case, it would become the first time the Supreme Court addresses a same-sex marriage-related issue. But the case would not address marriage itself or whether same-sex marriage is protected under the constitution — only the question of whether D.C. voters should be allowed to decide the issue through a ballot measure.

Arthur Spitzer, legal director of the ACLU’s D.C. area office, said it’s possible that the court won’t issue a decision on the Jackson case on Tuesday.

“If there’s no order that day, that’s also significant, meaning either that the justices were not able to decide in their first discussion, or that someone is writing a dissent from denial,” he said.

He was referring to a decision denying Jackson’s request that the court take the case.