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Supreme Court says “yes” to DC Marriages

Timothy Kincaid

March 2nd, 2010

capitolOpponents of marriage equality in the District of Columbia have been trying everything they could think of to stop marriage license from being issued to same-sex couples tomorrow. Unable to persuade city council members from choosing discrimination, they sought to get a congressional veto.

Recognizing that their congressional efforts were simply a clown show, they went to the courts and demanded that they be allowed to vote by initiative. After the District Courts all declined their demands, they made a last ditch appeal to the Supreme Court. (AHN)

Efforts by conservatives to overturn the law have continued. A group of conservatives including clerics Harry Jackson and James Silver filed papers Monday asking the Supreme Court to stay the law.

“The D.C. Council violated the congressionally authorized process for amending the D.C. Charter and, as a result, the citizens of the District are being denied the right to refer the act to the people,” the group said in its petition.

The D.C. Court of Appeals ruled against Jackson’s group last week. Jackson and Silver, members of a coalition of community leaders and pastors called, also tried to seek approval last year from the D.C. board of elections for a ballot initiative on whether marriage should be between persons of opposite sexes.

Today Chief Justice John Roberts declined placing a stay. (AP)

The Supreme Court has refused to stop the District of Columbia’s gay marriage law.

The court on Tuesday turned down requests from gay marriage opponents to stop the law, which will take effect on Wednesday.

This is good news for DC and Maryland residents.

But it may possibly also be good news for California gay couples and those around the nation. Were Justice Roberts an anti-marriage advocate, he may have been willing to lean towards granting the stay. It is, of course, far too soon and far to speculative to assume that this is a forerunner of his position on Perry v. Schwarzenegger, but it certainly weighs on the side of hope.



March 2nd, 2010 | LINK

Perhaps the plaintiffs really didn’t have a strong case, and the Courts’ “yes” has no relevance at all to their opinion on the issue at hand.

March 2nd, 2010 | LINK

It could just be that Roberts knew that the claim that “The D.C. Council violated the congressionally authorized process for amending the D.C. Charter” was a load of bull..

March 2nd, 2010 | LINK

This in no way says anything positive about Roberts: Is a refresher on how he has voted in past gay rights cases needed? SCOTUS is not going to get involved in the murky standing of D.C.’s independence: this has nothing to do with a pro-gay view of the Court.

But still: Happy news.

March 2nd, 2010 | LINK

Yes, it was a load. I believe the major influence on Roberts was that Congress did not act. Roberts did mention that he didn’t weigh any underlying issues in making his ruling.

March 2nd, 2010 | LINK

It’s good news for DC but tells us nothing about the Roberts Court. I do not believe the Perry case has a chance to get more than 4 votes when it reaches SCOTUS. It’s one thing for the Court to rule against a legislature that has approved of SSM, it’s quite another to strike down state amendments/laws that have likewise been approved by various legislatures. I just don’t see that happening at this time. 50 years from now? Sure. Yet not now. I fully expect a Plessy-type ruling that will take decades to undo with another Brown.

March 2nd, 2010 | LINK

I’m glad about this ruling as well, but I’m kind of with John.

I think we’re completely on the right side of reason, logic and facts in our case, but I don’t have full trust in the Roberts court to side with any of those.

I guess I’ve just learned to be pessimistic and expect nothing better than itsy-bitsy baby steps in our favor. With any luck, we’ll have gay marriage by 2100…

David C.
March 2nd, 2010 | LINK

Supreme Court says “yes” to DC Marriages

Well, let’s just say they didn’t say “no”. Yet.

March 3rd, 2010 | LINK

Gary, David: You’re correct. This is nothing more than the SCOTUS refusing to grant a preliminary injunction. It sets no precedent at all. If the SCOTUS had in fact granted such an injunction, it would have been a display of judicial activism that would make Bush v. Gore look like a model of judicial restraint.

March 3rd, 2010 | LINK

Roberts also basically invited the Protect Marriage people to challenge the DC Courts to put the issue on the ballot, and heavily implied that they would hear that appeal, when the time came. We’re not getting five. No way, no how.

Bill Ware
March 3rd, 2010 | LINK

The court was just saying that the DC law prohibiting a public referendum when the subject is minority rights had been properly applied in this case. It had nothing to do with what minority right, in this case gay marriage, was at issue.

March 3rd, 2010 | LINK

If Justice Kennedy meant the words he wrote in the Lawrence v. Texas ruling, it will be very difficult for him to reach a negative opinion about equal marriage in Perry v. Schwarzenegger — and if he is in favor of equality under the law, as he said in Lawrence, he would be the 5th vote. The only reason there is any doubt about his view is that the identity of the court’s right wing has changed since Lawrence, and Kennedy has to deal with a more aggressive right-wing bloc, who will be trying to find a way to persuade him to distinguish the Lawrence case from the equal marriage case. No one knows what will happen, but there are good reasons to hope it will be 5-4 for equality.

March 3rd, 2010 | LINK

Well I’m a bit confused about the American law making process here, but congratulations to all the same sex couples in D.C. and Maryland who wish to utilize the new law.

Timothy Kincaid
March 3rd, 2010 | LINK


I agree. But wouldn’t Roberts’ decision suggest that he sees same-sex marriage as being both a “minority right” and a “civil right”? Or at least that he is willing to accept the DC courts’ defining it as such?

Fred in the UK
March 3rd, 2010 | LINK

More of a question that a comment.

Might Chief Justice Roberts view same-sex marriage as a minority/civil right that the D.C. council was perfectly entitled to bestow upon its citizens, but one that was beyond the those required by the Constitution?

March 3rd, 2010 | LINK

“If Justice Kennedy meant the words he wrote in the Lawrence v. Texas ruling, it will be very difficult for him to reach a negative opinion about equal marriage in Perry v. Schwarzenegger”

Kennedy agreed with the other four right wingers that cameras shouldn’t be allowed during the Perry trial because it was “very likely that irreparable harm” would come to the Prop 8 defendants as the hands of the gays. That’s what you call a “tell”. We’re done, the rest is just biding time.

John Culhane
March 3rd, 2010 | LINK

With respect, I think the view that the denial of the stay in this case bodes well for marriage equality in the long term is naive. The better portent, unfortunately, is the Supreme Court’s willingness, in the Perry case, to block the televising of the Perry case. There, the Court stuck its nose into a debate that it should have avoided, and bought the most specious arguments of the anti-marriage forces (esp. the idea that the pro-Prop 8 witnesses, who were already quite well known for their views, would be intimidated by having to testify). The decision was “per curiam” (translation for non-lawyers: “By the Court”), but I strongly suspect that Roberts wrote it. I blogged about it on my site:

March 3rd, 2010 | LINK

Reading SCOTUS tea leaves is something best left to the experts. The law was so clear here that it would have been astounding for the Court to have granted a stay. We should look to those familiar with HOW stays are granted, with how much and with what sort of comment they are issued, to discern Roberts’ intent.

I’m no expert, but a three-page stay strikes me as unusual. That it mentioned other cases that, legally, have absolutely nothing to do with the petition at hand, fills me with foreboding.

March 3rd, 2010 | LINK

I wouldn’t make such a big deal about the cameras in the court thing. It was mostly decided on the fact that it was unprecedented for a federal court case and that the rules were changed with little time before the trial. It’s not necessarily because they bought the pro-Prop 8 arguments hook, line, and sinker.

I believe Roberts made the point that Congress could have stopped it in his writing.

March 3rd, 2010 | LINK

Err.. I should say about the writing declining to put a stay on D.C. marriages.

Timothy Kincaid
March 3rd, 2010 | LINK

In reading Roberts’ decision, we see that he decided this on the merits of the argument, which was:

Petitioners argue that this action was improper, because D.C. Council legislation providing that a referendum is not required cannot trump a provision of the D. C. Charter specifying that a referendum is required.

In other words, the Council back in 79 exempted Human Rights issues from the referendum process stated in the Charter. But that the Council had no authority to override the Charter’s provisions and thereby usurp Congress’ power. That being the case, referenda which violate the Human Rights Act – no matter how egregious – are perfectly legal and allowed.

Roberts said that “This argument has some force.” But he also noted that Congress had an opportunity to veto the Human Rights Act and it’s usurptation on its power and chose not to.

He also noted that Congress chose not to act at this time, implying that if it felt that the Human Rights exclusion violated the intent of Congress it could have remedied the situation.

He also noted that the issue wasn’t over because there is an appeal for an initiative (as opposed to a referendum).

March 3rd, 2010 | LINK

Great day for gays, and I’m happy about that. Unfortunately, it’s a lousy day for kids who need to be adopted. Catholic Charities of DC has said that they will have to shut down their adoption operations in DC, just like in Boston and SF. That’s really too bad. Only the children will suffer.

Unfortunately, we seem to live in a zero sum world. It’s hard to make compromises between gay rights and religious freedoms. I, for one, think that there are realistic compromises that accommodate both sides, if only both sides were willing to meet in the middle. Sadly, that’s not the case.

So we have a mixed blessing here.

I don’t want to force Catholics to act in an un-Catholic fashion. I think they should be able to be Catholic till the cows come home, just as I should be free to be gay till the cows come home.

Timothy Kincaid
March 3rd, 2010 | LINK


You needn’t worry about the children. Catholic Charities has not “shut down operations” but has instead transferred operations to the National Center for Children and Families.

So the taxpayer funded adoptions will continue, they just won’t be administered by the Catholic Church any longer.

The Catholic Church may continue to be Catholic and discriminate all they like on whatever issue they want, just not with the public’s funds.

Ben in Oakland
March 4th, 2010 | LINK

Joey: if by “religious freedom” you mean freedom to discirminate on the basis of religious belief, you are correct.

Except that we have laws at every level of government which forbid such discrimination… and iwth good reason.

The question for you to answer is this:why is this particular form of religious discrimination a good idea, while all the other forms of religious discrimination are not?

Answer: maybe it’s really about plain old bigotry, given a very thin veneer of respectabilty by being disguised as religious belief.

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