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    March 03, 2010

    Roberts rules but leaves the door open

    Posted by: Chris

    I speculated yesterday that must not have been easy for a conservative Catholic like Chief Justice John Roberts to deny a stay that would have blocked gay couples from lining up this morning to apply for marriage licenses in the District of Columbia. Apparently, I was right.

    I haven't yet reviewed Roberts' three-page ruling (available here), but the well-respected SCOTUSblog indicates that he left plenty of wiggle room for the Supremes to revisit gay marriage in the nation's capital once local courts have ruled on a challenge designed to put the matter directly before voters:

    Even while saying a delay was not now legally justified, Roberts noted that the challengers may still try to undo the new D.C. marriage provision by attempting to put it on the ballot asking local voters to repeal the law.  That separate maneuver is now under review in the D.C. Court of Appeals, Washington’s highest local court. …

    Roberts said the opponents’ legal challenge “has some force.”  … And, he noted, the potential to pursue the  initiative process will not cease to exist even though the marriage law does take effect Wednesday.

    The opponents still have the option of asking another Justice, or the full Court, to consider their plea for delay, but Roberts’ action makes success unlikely on any such plea.  Ultimately, the legal questions may reach the Court in a future test case after the Court of Appeals rules on the initiative maneuver.

    The issue isn't as cut and dried as some gay bloggers have suggested, portraying the suit as desperate and baseless. In an effort to prevent these sorts of referendums, the D.C. Council amended the city's Human Rights Act to provide that it could not be altered in by referendum in a discriminatory way. As much sense as this makes in principle, it is unusual for a simple ordinance to be used as a mechanism for blocking a referendum process provided for in the D.C. home rule charter.

    More on this later, when I've had a chance to look at the arguments myself, but it's enough to put a bit of a damper on today's festivities here in Washington. My advice to couples ready to the knot is get thee to the altar, lest you miss your opportunity a la Prop 8 in California.

    (Photos of Darlene Garner, left, and her partner, Candy Holmes, via AP).



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    1. daftpunkydavid on Mar 3, 2010 7:27:37 PM:

      so if 2 of the 3 reasons roberts gave for denying grant of cert are still standing after the district court of appeals rules (i.e. deference to local courts and inaction by congress), is the third and last reason important enough that roberts would acquiesce in a challenge of a district court of appeals finding that a ballot initiative cannot be proposed?

    1. Chris on Mar 3, 2010 10:02:16 PM:

      It's a good question. I don't see how the U.S. Supreme Court overrules the D.C. Court of Appeals, the "state supreme court" of D.C., on a question of D.C. law, unless there is a federal issue involved. But given the unique (not in a good way) status of the District of Columbia in the U.S. legal system, it is possible.

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    1. Joe Schmoe on Jan 7, 2012 12:09:28 PM:

      The Catholic Church (and other churches) are not content to not do gay marriages. They want to block other institutions from performing marriages of which they don't approve. If they don't support the right of other institutions to decide, why should I support their right to decide? They want to have it both ways!

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