Chief Justice John G. Roberts, Jr., refused on Tuesday to block a District of Columbia court’s order that cleared the way for same-sex couples to get marriage licenses and wed in the capital city, beginning on Wednesday.  The Chief Justice, in denying an emergency stay filed by opponents of gay marriage, issued a three-page opinion, found here, explaining his action.   He acted in his role as Circuit Justice for the D.C. area; the issue was not referred to the full Court.  (The stay application, 09A807, is here; the opposition to it is here, and the reply is here.)

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.

Although challengers are pursuing other legal steps,  the capital city will at least temporarily join these states in allowing gay couples to wed: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont.

The D.C. City Council on Dec. 15 passed a new law authorizing marriage licenses within the city for same-sex couples. The city’s mayor signed it on Dec. 18.  Under a requirement imposed by Congress, the measure had to be sent to Congress for clearance; Congress had 30 legislative days to veto it.  Those legislative days, city officials have said, were to expire today (Tuesday).  Congress has taken no action, so city officials plan to start issuing marriage licenses on Wednesday.

The dispute, as it went before Chief Justice Roberts, grew out of an attempt to get a ballot measure before city voters to declare that, in the District of Columbia, only a marriage between a man and a woman would be valid or recognized.  This was an attempt to settle the issue before the City Council could act on a measure to do just the opposite.

A local election board, backed up by a local trial court, refused to clear the opponents’ measure for the ballot, concluding that human rights law in the city does not allow an initiative proposal that would authorize discrimination based on sexual orientation.  Arguing that local law does not put such a limit on voter initiatives, the opponents took the issue on to the D.C. Court of Appeals, where the case is still pending.

After the City Council adopted the same-sex marriage law and the mayor signed it, the opponents then sought to put the measure to a vote of Washingtonians.  The election board turned down that maneuver, too, again finding that it would result in discrimination.   Opponents returned to local courts, seeking to block the effective date of the new law because, once that law took effect, it could not be pre-tested in a referendum.  Both a local trial judge and the D.C. Court of Appeals refused to delay the law’s effect.  The opponents then took their plea for delay to the Chief Justice, in his role as Circuit Justice for Washington, D.C., matters.

The challengers told Roberts that they planned to appeal to the Supreme Court on the question of whether city officials had the legal authority to add a new limitation on the ballot measure process.   They argued that the city’s home rule charter does not permit such a charter amendment, since such an amendment requires voter approval.

The Chief Justice studied the issue for a day, then refused to issue an order delaying the new marriage law. In doing so, Roberts said the opponents’ legal challenge “has some force.”  But he then gave three reasons for refusing any relief at this point: a tradition of deferring to D.C. courts on D.C. matters, the fact that Congress did not use its veto power — either on the marriage law or on the amendment barring a discriminatory measure, and that the ballot initiative process seeking a repeal was still an open issue before the D.C. Court of Appeals.

The initiative question, Roberts said, raises some of the same legal issues as the referendum question did.  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.

Posted in Cases in the Pipeline