The National Organization for Marriage and their allies tried, as they have in other states, to put same-sex marriage rights to a popular vote in Washington D.C. -- but that didn't work because of a D.C. law preventing discriminatory measures from being put to a popular vote. They subsequently attempted to punish District legislators for extending marriage rights by voting them out of office and failed. With Democrats still in control of the Senate and the White House, an attempt by Republicans in the House to strip District residents of their same-sex marriage rights is doomed to failure.
There's still one institution that could offer anti-marriage-equality activists a chance to turn back the clock: The U.S. Supreme Court. Lou Chibbaro Jr. reports:
According to the court's public docket, the nine justices scheduled a private conference among themselves for Friday to discuss the case known as Jackson v. the D.C. Board of Elections and Ethics. Under longstanding court rules, the justices usually announce a decision on whether to accept or reject a case on the Monday following such a conference.
“Generally, if a case is considered at a conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10 a.m. the following Monday,” the court's website says.
A court spokesperson said because a federal holiday, Martin Luther King Day, falls on Monday, the court is expected to release its decision on the Jackson case on Tuesday.
A little background here. Prior to the law taking effect, anti-marriage-equality activist Bishop Harry Jackson, the National Organization for Marriage's man in Maryland, alongside James Dobson's Alliance Defense Fund, asked the Supreme Court to stay the law.
They refused, but Justice John Roberts suggested that the ADF's argument, that the D.C. human-rights law passed in the 1970s prohibiting discriminatory measures from being put to a popular vote violates the D.C. Home Rule Charter, "had some force." As an ADF attorney told me at the time, anti-equality activists thought Roberts had "definitely nodded in our direction." Their argument is that the charter doesn't have the same prohibitions as the human-rights law, so the latter constitutes a violation of the people's right to change the charter only by popular vote.
If they decline to hear the case, the lower court ruling would stand and marriage equality in D.C. would be safe, at least for the foreseeable future. If they do decide to hear the case, they could very well force the District to decide the matter by a popular vote. Marriage-equality activists in D.C. are confident they could win a popular vote if it came to that, but they might not -- and no one knows how bitter the fight might become in the process.
According to Chibbaro, there's a long-standing precedent of deference toward the local D.C. courts in such matters, but we already know how the conservative majority on the Court feels about precedent. It only takes four justices to force a hearing, and it sounds like they've already got Roberts' vote.
