January 11, 2011 at 10:10 am EST | by Lou Chibbaro Jr.
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.

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

  • so a preacher from the next state over is sticking his nose in DC laws…. so if the christians are going to deny gays the same rights under the us constitution they have simply based on there religious views will they grant gay people a second tier citizenship along with lower tax rates

  • Touch screen popularity contests do not result in justice or fairness. Gay rights are human rights. No one no matter if they have a 51% majority or not should have the right to say I can’t marry the person I love so long as we are both consenting adults.

  • I’m sure the Bishop will run back to Maryland in time for the gay marriage fight this Spring.

  • Gay marriage is wrong. As my favorite quote goes, “God made Adam and Eve not Adam and Steve”. Being gay is not normal and i fell it is a disease.Physically guys are not meant to be with guys and girls are not meant to be with girls.

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