DC marriage appeal rejected by SCOTUS

Timothy Kincaid

January 18th, 2011

capitolFor a case to be heard by the US Supreme Court, four of the nine justices must have an interest in discussing the constitutionality of the case. The challenge to the District of Columbia’s denial of a referendum on marriage equality did not reach that standard. (AP)

The court did not comment Tuesday in turning away a challenge from a Maryland pastor and others who are trying to get a measure on the ballot to allow Washingtonians to vote on a measure that defines marriage as between a man and a woman.

Bishop Harry Jackson led a lawsuit against the district’s Board of Elections and Ethics after it refused to put that initiative on the ballot. The board ruled that the ballot question would in effect authorize discrimination.

The facts are interesting.

After the DC Council voted to enact marriage equality, Bishop Harry Jackson (a Maryland preacher) got signatures to put a referendum on the ballot. But the District has a provision which disallows referenda on civil rights issues and the Board of Elections and Ethics deemed an anti-gay marriage vote to be just such a vote.

When the courts did not overturn this decision, Jackson appealed to the Supreme Court and asked for a stay. In March, Justice Roberts declined the stay. Now the case is settled.

We cannot extrapolate too much from this decision. However, the following seems to be true:

  • There are not four anti-gay activist justices on the Supreme Court who are willing to take whatever steps are necessary to oppose equality.
  • The idea that gay marriage is, indeed, a civil rights issue – or can legitimately be seen as such by an Elections Board – is acceptable to at least six of the nine justices.

L. Junius Brutus

January 18th, 2011

I disagree. This is a vote that has very little to do with the substance of gay rights, just like the one that was settled 8-1 by the Supreme Court. I think it has more to do with local and state power, which conservatives strongly support. So I do think that there are four solid anti-equality votes (or rather, generally pro-religious right votes).

And if a few justices did want to grant cert, that would have been mentioned with the denial of cert, as it always is. Apparently, it was so without merit that none of them could even pretend that it had any merit whatsoever. And when Scalia decides that opposing the ‘gay side’ isn’t feasible, you’ve got to know that something’s up.

Priya Lynn

January 18th, 2011

Junius, any judge that’s truly anti-gay will be happy to sacrifice local and state power to fight gay rights. Timothy’s right, their aren’t four solid anti-equality votes on the U.S. supreme court.


January 18th, 2011

You may be right, Brutus, which could bode well for SCOTUS’ eventual ruling in Gill v. OPM. After all, state power and federalism are very much at the heart of the case.

Regardless, this denial is a victory IMO. Hallelujah!


January 18th, 2011


ohhhhhhhhhhh would i love to be a fly on the wall over at Jackson’s church


January 18th, 2011

One potential correction. I do not believe Jackson ever actually mounted a signature collection effort. Even if the Board had allowed for the referendum, as I understand it, the procedures for doing so are so onerous they have not been tried often, if at all. There is a limited window of time to collect the signatures, they must be collected in every Ward of the city, and there has to be a minimum % of registered voters in each ward signing for the referendum to pass. Given that the largely gay areas are concentrated in two Wards, it would have been very difficult for Jackson to get the necessary signatures.

L. Junius Brutus

January 18th, 2011

Priya: “Junius, any judge that’s truly anti-gay will be happy to sacrifice local and state power to fight gay rights.”

Well, then Scalia is not truly anti-gay, because he did not vote to grant cert in this case, which is belied by every single opinion that he has written about the subject.

And apparently, Thomas isn’t personally anti-gay, but he thinks that states have a right to be anti-gay, if they so wish. It’s called manners and tolerance, or so I’m told.

“Timothy’s right, their aren’t four solid anti-equality votes on the U.S. supreme court.”

I’m hoping with you and Timothy, but I can’t see how you can come to such a conclusion.

Scalia – every opinion of his on gays and abortion simply radiates hatred
Thomas – probably not a religious radical, but votes with them anyway
Alito – religious radical, as shown by his record on the Circuit Court, as well as what his mom said: “Of course he’s against abortion!”
Roberts – I’m guessing that he’s like Thomas: he is not a religious radical, but he’ll vote with them anyway

Kennedy – devout Catholic, strongly pro-life (only reason Reagan nominated him), but has an even stronger devotion to the rule of law

Priya Lynn

January 18th, 2011

I don’t put a lot of faith in your opinion Junius, I’m sticking with what Timothy said.

Timothy Kincaid

January 18th, 2011


I don’t think we know whether Scalia or Thomas wanted to grant cert, only that there were not a total of four that wished to do so.

John B.

January 18th, 2011

Although the denial of review sets no precedent, what happened here in Washington, DC is actually quite significant. This wasn’t just about the court cases; this was about the complete failure of NOM and its proxies to have any effect here at all. After their dire predictions of a voter uprising, Harry Jackson, NOM, et al. utterly failed to make same-sex marriage an issue in DC, they failed to influence our elections, they failed to get even one councilmember who supported same-sex marriage voted out of office, and now their stand-in, Maryland minister “Bishop” Harry Jackson has been smacked down by the DC board of elections, the DC Superior Court, the DC Court of Appeals, and now the Supreme Court of the United States.


January 18th, 2011

I wouldlike to offer my two cents on this very screwed up attempt at a legal discussion. But first, I’d just like to let out a big sigh of relief. This case really was like an asteroid that just missed hitting the Earth. Now that we know it won’t hit, it will be quickly forgotten. But if it had hit, it really had catastrophic potential. A Prop 8-style battle in the nation’s capital, intentionally racialized and further poisoned by class and religious divisions, would have been brutal. I recall Jackson testifying about how sacred civil rights were being hijacked to serve the sexual desires of affluent professionals living in their luxury condos in the NW quadrant. That was just a taste of what we would have had to deal with. Oh, and as an added bonus of losing this case, all other gay issues would have been subject to popular vote as well.

So really, big, big relief.

On the legal discussion: with one narrow exception, the denial of cert in this case doesn’t tell you anything about the Court’s view on marriage, gay rights, or federalism. First, contrary to what Junius Brutus says, individual votes to grant cert are not published when cert is denied. In fact, you rarely know what the vote is and who voted which way. (The only exception is when a Justice opts to write a dissenting opinion, which is rare.)

So the only thing we do know is that 4 Justices did not vote to grant. I assume that Scalia and Thomas voted to grant. So to my mind, the end result tells you that either Roberts or Alito or both, at the very least, do not share Scalia’s obsession with homosexuality. That is a small point, but one that can be fairly drawn from this result IMO.

Briefly, the denial does not speak to the Court’s view of the merits of the arguments on marriage or gay rights b/c the appeal would have been largely if not exclusively focused on the issue of the DC Council’s right to carve out an exception to initiative process set forth in the DC Charter.

It doesn’t speak to state/federal power issues as those are usually understood, b/c this case would have turned not on constitutional issues relating to federalism, but purely on statutory interpretation to determine Congressional intent vis a vis the District. If you want to see how dry and technical the case would have been, take a look at the DC Court of Appeals decision. It will cure your insomnia.


January 18th, 2011

John B. and Theo are both correct and best informed. Had there been enough justices to take on this case, there existed a possibility, slim but a possibility nonetheless, that we could have been dealt a Supreme Court ruling with immense implications for–even perhaps gutting–human rights ordinances in counties, cities and smaller college towns nationwide. It would have caused chaos, potentially setting back by decades the goals of the LGBT movement.

Politically, we were very well positioned here in DC: including faith community leaders in our legislative campaign, doing many months of grassroots voter contacts to dispel myths about same gender marriage, presenting hours of compelling testimony before City Council hearings, ensuring that people of color were visibly active and vocal, and the entire campaign was based on years of educating council candidates about the LGBT communities, electing them to office and working with their staffs to maintain an amazingly united (almost, 11-2) front. We were also fortunate to have the Democratically controlled US House and Senate on the Hill to derail attempts to violate the concept of District home rule. Given the Republican takeover in November, it was as it turned out, a very narrow window of opportunity in which to accomplish our victory–but it was achieved nonetheless.

I still would not have wanted to proceed to a ballot. It is conceivable, even probable that we would have won, but the campaign would have been ugly, divisive and expensive and a sad use of valuable and limited resources.

But we also owe a debt to the pioneers of District government who, back in the 1970s, were quite aware of the ways in which ballot initiatives could be used as instruments by a majority of voters to deny equality and justice to discrete, insular and despised minorities. They wisely safeguarded our human rights ordinance from just such tyranny. Today their foresight was vindicated by the Supreme Court’s denial of cert to Bishop Jackson and the plaintiffs, but it may have been a very close call. We should be very relieved and all sleep better tonight.

L. Junius Brutus

January 18th, 2011

Theo: “First, contrary to what Junius Brutus says, individual votes to grant cert are not published when cert is denied. ”

The petition for a writ of certiorari is denied. Justice
Alito would grant the petition for a writ of certiorari.


The petition for a writ of certiorari is denied. Justice
Souter, Justice Ginsburg, and Justice Breyer would grant the
petition for a writ of certiorari.


Compare our case:



Priya Lynn

January 19th, 2011

They weren’t published in this case Junius, so you’re still wrong.


January 19th, 2011


I did say that on rare occasions, certain Justices will opt to make their dissent known. The two cases you cite above come out of a pool of about 16,000 rejected cert petitions in the 2006 and 2007 terms from which you drew your examples. We only learn the votes of those individual Justices who chose to make it known. Both cases are atypical in that they concerned broadly disputed issues of constitutional law (respectively, detainee due process and Takings), thus making a protest by one or more individual Justices more likely.

To recap: It is simply not the case that we “always” learn who dissented from the denial of cert, as you said above. On the contrary, we very rarely learn who dissented, and even then we might only glean an incomplete picture.

So in this case, the absence of a public dissent does not tell us that the vote was 9-0 to deny, and it does not tell us that all of the Justices concluded that Rev. Jackson’s case was without merit. On the contrary, the vote in the DC Court of Appeals was split, and Jackson had, IMO, a very good case on the Charter issue.

From the Oxford Companion to the US Supreme Court:

“If four justices vote in favor, cert is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. . . .Dissents from denial of cert are uncommon . . .”

L. Junius Brutus

January 19th, 2011

Theo, I found numerous examples of dissents to denial of cert, so at the very least, they are not that uncommon. It would not surprise me that since most cert requests are completely without merit, that in the vast majority of the cases, 0 out of 9 judges vote to grant cert.

As for your Charter issue, I don’t exactly know what it is, but it is up to DC to decide what it’s own laws are, so even if the DC Court’s decision was incorrect, it can’t be up to the Supreme Court to correct it. I can’t find Jackson’s petition, but it would not surprise me if it were completely frivolous – again, just like the jack@sses who argued that they had a constitutional right to keep petition names secret (which was slapped down 8-1).

Alex 0_0

January 19th, 2011

Tim is right. The fact that Fat Maggie’s paid-for poodle Jackson couldn’t automatically get 4 votes to grant cert is hugely indicative. This could have been a total disaster for LGBT equality, a barely averted “Dred Scott” case that could have wiped out equality gains all over the country by establishing the principle that gay rights are not legitimate civil rights.

Inside baseball, my feeling is that Scalia and Alito are lost causes, they represent the Opus Dei and nothing but, their anti-gay posture is guaranteed regardless of the facts of any case. Roberts and Thomas are more complicated, although both are also radical Catholic activists, one of them must have voted against granting cert. My guess is Roberts decided this was not a case he wanted.

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