D.C. marriage victory: Supreme Court and Congress still loom

scalesIn yet another important win for marriage equality, the District of Columbia’s highest court ruled July 15 that the city government acted lawfully when it rejected a local minister attempt to place a referendum before voters that sought to roll back equal marriage rights for gay couples in the nation’s capital.

The ruling leaves intact marriage equality legislation, in effect in the District City Council since early March.

But the ruling may not be the end of the battle for Washington, D.C. The U.S. Supreme Court and Congress may have the final word.

There were two questions before the D.C. Court of Appeals, which is the equivalent of a state supreme court. First, whether the proposed ballot measure was discriminatory or not, and second, whether the D.C. City Council had the authority to restrict a ballot initiative that violated a provision of city’s Human Rights Act, which bans discrimination based on the basis of sexual orientation and other categories.

All nine justices of the Court of Appeals agreed on one point: The proposed ballot measure would be discriminatory. They split, 5 to 4 on the second question. Court of Appeals Associate Judge Phyllis Thompson, writing for the majority said the Council’s restriction was “not inconsistent” with the city’s charter, its equivalent of a state constitution.

Marriage equality opponents, led by Harry R. Jackson Jr., the pastor of a local church, sought the referendum and, with the aid of the conservative Alliance Defense Fund, took the battle to court. The Alliance issued a statement after the ruling, indicating it is considering whether to petition the Court of Appeals decision to the U.S. Supreme Court.

“The decision from the District of Columbia Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom –the right to vote,” said Alliance Senior Legal Counsel Austin Nimocks. “We are considering our options to right this wrong, which include asking the Supreme Court of the United States to consider this case.”

The dissent, which agreed in part with the Alliance, said the particular restriction on the initiative process—that no initiative have the potential to violate the city Human Rights Act—is not one explicit or even implied in the city charter.

The Human Rights Act, said the dissent, “is not part of our local ‘constitution.’” And while the charter instructs the D.C. Council to provide for a right to an initiative process, said the dissent, “It did not grant any license to restrict those rights….”

It said the D.C. Council had no authority to restrict the initiative process, as it did.

“The prospects of the Supreme Court granting a review are probably low at this stage,” said Paul Ainsworth, an associate at the law firm Covington & Burling, during a July 22 conference call with reporters. The firm filed a brief in support of the District of Columbia and other groups and individuals supporting the marriage equality law in the case.

One reason the high court is unlikely to consider any review, he said, is the D.C. Appeals Court’s “avoiding issues of U.S. constitutional law” in its opinion. The decision, Ainsworth added, focused on “the text of the District’s [Home Rule] Charter,” the equivalent of a state constitution, and “the legislative history of the Charter and amendments.”

And yet, “One question we considered,” added Covington & Burlington partner Jean Vita, “is whether there was some federal constitutional right to have an unfettered right to … participate in an initiative?” The answer to that question, she said, “I think is ‘No.’”

Still, said Ainsworth, “We’ll have to see how [the Alliance] frames the petition.”

The Alliance, Jackson, and supporters have until mid-October to file for Supreme Court review.

Meanwhile, Congressional intervention, through a variety of venues, including a D.C. appropriations bill or rider or some other piece of legislation, poses a greater threat.

“Unlike judicial review,” Ainsworth explained, “there is no expiration in Congressional control over local D.C. matters.”

The likelihood of Congressional intervention could pivot on this fall’s midterm elections.

“If the Democrats lose the House or the Senate,” the situation on Capitol Hill “could all turn around,” cautioned local gay civil rights activist Peter Rosenstein, a board member of the local advocacy group, Campaign for All D.C. Families. Rosenstein also participated in the telephone conference call.

The District “is such a different place,” he said.

D.C. is not a state but a federally controlled district, over which Congress has the authority to exercise considerable control.

3 Responses to D.C. marriage victory: Supreme Court and Congress still loom

  1. It’s time for full civil and marriage equality rights in 21st century America.

    Onward, Joe Mustich, Justice of the Peace,
    Washington, Connecticut, USA.

    And kudos to CT, a marriage equality state since 2008.

  2. There is more background on the D.C. marriage victory in the “Marriage and Family” section of GLAA’s “Agenda: 2010” policy brief, online at:

    What is remarkable about this case is not the small chance of intervention by Congress or SCOTUS, but the strength of our victory, which is largely the result of the careful planning over many years by GLAA and our fellow coalition members. A lot of careful groundwork was laid before we went forward, leaving our opponents with very little in the way of legal footholds. But even if the GOP gains control of Congress in the midterms, they wouldn’t have enough votes to overturn D.C. marriage equality without help from President Obama. He may not support marriage equality, but he didn’t support the Federal Marriage Amendment, and he won’t support the trampling of D.C. Home Rule. So a congressional overturn is unlikely prior to noon on January 20, 2017 (based on my expectation of Obama’s re-election).

    Even if Congress and the President forced a ballot measure on the District, we have good reason for optimism. A number of polls suggest we have an excellent chance of winning, and just the fact of federal interference in the District’s affairs would give the pro-equality side a bump in the polls of several points due to the strong, across-the-spectrum opposition by D.C.’s electorate to the feds treating D.C. as a “plantation.” And we planned for the eventuality of a ballot measure: we have a campaign organization in place which can ramp up as needed. Meanwhile, Bishop Jackson and his cohorts have repeatedly demonstrated they have a tin ear for D.C. politics.

  3. BTW, regarding the question of whether there is a federal constitutional right to participate in an initiative: As I and others testified before the D.C. Board of Elections and Ethics —
    — Article IV, Section 4 of the U.S. Constitution guarantees a republican form of government, while saying nothing about plebiscites. Our opponents want to change the rules because we won by our participation over many decades in the established political system.

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