High court declines to hear challenge to D.C.'s gay marriage law

Washington Post Staff Writers
Wednesday, January 19, 2011

The U.S. Supreme Court announced Tuesday that it would not hear a challenge to the District's 10-month-old same-sex marriage law, marking a likely end to legal disputes over gay marriages in the city. But opponents of the law say they will press Congress to intervene, potentially requiring the city to hold a voter referendum.

The high court declined without comment to hear the case, six months after the the D.C. Court of Appeals had narrowly upheld the law.

Opponents and supporters of the law agreed Tuesday that the decision means the debate shifts away from the courts.

"This represents the end of the judicial road for opponents," said D.C. Council member David A. Catania (I-At Large), the author of the city's same-sex marriage law. "They have a political remedy that I suspect they will pursue."

Brian Brown, executive director of the National Organization for Marriage, one of the organizations that had asked the Supreme Court to consider the case, said he and fellow activists will "look at what the best route is" to have Congress intervene to try to force a referendum.

The lawsuit was filed by a group led by Maryland minister Harry R. Jackson Jr., who has campaigned against the gay marriage law with the backing of the National Organization for Marriage and other national groups. It did not directly challenge the legality of the District's same-sex marriage statute but instead held that the District's Board of Elections and Ethics erred in ruling that the law could not be subjected to a referendum.

The board had ruled on several occasions that a provision in the city's Human Rights Act prohibited the marriage question from being put to a vote. Jackson's group had said that the provision could not trump the District's charter, which provides for voter-initiated laws and ballot review of laws enacted by the council.

Opponents had seen hope after asking the Supreme Court last year for an emergency stay to prevent the District from issuing marriage licenses to gay couples. Chief Justice John G. Roberts Jr., although denying the stay, _blankwrote in a short opinion that the opponents' legal argument "has some force." But he also said the court was "unlikely" to review the case.

The pair of laws passed in 2009 by the D.C. Council - one to recognize gay marriages performed outside the District, another allowing them to be performed within its borders - passed though a mandated congressional review period without challenge. Several conservative representatives sponsored bills to ban same-sex marriages in the District or mandate a referendum, but none made it to the floor of the then-Democratic House.

But a new Republican majority in the House has gay-marriage supporters concerned about new attacks - most likely through "riders," or restrictions placed on city spending during the appropriations process.

Two members of Congress with key roles in District oversight - Rep. Jo Ann Emerson (R-Mo.), chairwoman of an appropriations subcommittee, and Rep. Trey Gowdy (R-S.C.), named Tuesday as chairman of an oversight subcommittee - declined requests to comment.

Catania said he's skeptical that opponents of the law can be successful in the current Congress, which features a Democratic Senate, but he said that city leaders should begin contacting GOP leaders with oversight over the District to "make it known" what the city's "point of view is towards these local issues."

Eleanor Holmes Norton (D), the District's nonvoting delegate, said she and Mayor Vincent C. Gray (D) plan to meet next week with Emerson and Gowdy to deliver a "hands-off" message. She also called on District residents to refrain from lobbying the Hill for intervention.

"No self-respecting resident of the District of Columbia would ever want to ask the Congress of the United States to overturn local laws, any more than any Baltimorean or Virginian would ask the Congress to overturn local law," she said.

But Brown said that the city government's "egregious actions" to prevent the issue from reaching the ballot justify further intervention.

D.C. Superior Court, which issues the city's marriage licenses, does not keep separate statistics on licenses issued to same-sex couples versus opposite-sex couples. But between March 3, 2010 - when gay marriage was legalized in the District - and the end of the year, the number of couples applying for licenses more than doubled from the same period in 2009, from 2,725 to 5,828.

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