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Chief justice denies stay of District's same-sex marriage law

By Robert Barnes
Washington Post Staff Writer
Wednesday, March 3, 2010; B04

Chief Justice John G. Roberts Jr. denied a last-minute request Tuesday afternoon to stay the District's same-sex marriage law, ruling against opponents of the measure who had wanted to bring it before city voters in a referendum.

The decision apparently cleared the way for the District to begin allowing gay couples to apply for marriage licenses Wednesday morning.

A group led by Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, has wanted to stop the law from going into effect, but the effort has been stymied by decisions in lower courts. The group has also been unsuccessful in its attempt to repeal the D.C. Council's decision on same-sex marriages through the ballot initiative process. It wants to propose a law establishing that marriage is between a man and woman.

In a three-page opinion, Roberts said that the challengers had a point.

Although the D.C. Charter provides for referendums, the group has been blocked because the D.C. Council disallowed any referendum on an issue that would violate the D.C. Human Rights Act, which prohibits discrimination.

"Petitioners argued 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," Roberts wrote.

But Roberts said that the issue is still being considered by the D.C. Court of Appeals and that it is not the time for the Supreme Court to get involved.

"It has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern," Roberts wrote.

He also said the same-sex marriage statute could have been blocked by a joint resolution of Congress, "but Congress has chosen not to act." And he said that although the time for a referendum on the law will have passed, the group can still pursue a ballot initiative.

"The request for an initiative will not become moot when the act becomes law," Roberts wrote. "On the contrary, the D.C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time."

Roberts denied the stay request on his own without referring it to the full court.

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