Facing the end of the 30-day congressional review period for laws passed in the District of Columbia, Bishop Harry Jackson and his allies with the National Organization for Marriage tried one last ditch effort: A request that the Supreme Court issue an "emergency stay" preventing the law from taking effect.
Yesterday Justice John Roberts refused to issue the stay, ensuring that marriage equality would become law in the nation's capital today. However, he did reaffirm what local activists have been telling me since the bill was signed -- that there is some legal merit to NOM's challenge to D.C.'s human-rights laws preventing discriminatory measures from being put to referendum. From Lyle Denniston at SCOTUSBlog:
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.
With a Democratic Congress and a Democratic president, the court challenge was where the real threat to marriage equality in D.C. was always going to come from, and that isn't over yet. I also wouldn't read too much into Roberts' decision yesterday, depending how the appeal process goes, he may yet get to rule in marriage-equality opponents' favor -- and marriage rights in D.C. may yet be put to a citywide vote.
As a side note, there is an amusing coda to this story so far. Bishop Jackson essentially faked his District residency in order to justify his involvement with D.C. affairs. But during the time he was carpetbagging into Washington from Maryland to stop marriage equality, Maryland began recognizing same-sex marriages performed out of state, which was the first thing D.C. did before it began the process of making marriage equality the law of the city.
-- A. Serwer