To the Highest Court: Anything to Stop Marriage

Jackson (Photo via PFAW.)

My newest at Metro Weekly covers “Jackson’s Last-Minute Effort” at the Supreme Court:

Bishop Harry Jackson, along with others opposed to marriage equality coming to Washington, filed a last-minute request at the U.S. Supreme Court on Monday, March 1, seeking to stop the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 from becoming law on March 3 so that he can proceed with his referendum effort.

Aided by lawyers from the national organization Alliance Defense Fund, Jackson filed a request for an immediate stay of the law with Chief Justice John Roberts, who is responsible for hearing appeals coming from the District. Roberts has the ability either to make the decision himself or to turn the matter over to the full court for a decision.

If Jackson’s request were granted, the stay would halt the effective date of the marriage law – putting off marriage equality until the full Supreme Court could resolve the underlying issues Jackson has presented to it.

A copy of the application for a stay can be found here (pdf), care of HRC’s Michael Cole (who has been helpful above the call of duty throughout this flurry of legal action).

[UPDATE: The District of Columbia government has filed an opposition to the application, which I have made available here (pdf) at Law Dork. I'm reviewing it and have an update at MW. Here's my favorite part:

The District also argues that the stay sought by Jackson – a stay as to the effective date of the law – is actually irrelevant because the referendum period ends when an act becomes law, not when it becomes effective. The District’s lawyers further argue that the entire legislative process would need to be stalled to keep the bill from becoming law in order for Jackson’s stay to have its intended effect of allowing the possibility of a referendum to continue past March 3. And that, they conclude, is a position that has no support in the ADF filing or in law, so far as the District’s lawyers were aware.

Totally interesting argument.]

[UPDATE 2: Before hearing from the Supreme Court, the same marriage equality opponents have filed a Sec. 1983 civil rights action in U.S. District Court for the District of Columbia, asserting a violation of their due process rights and seeking an injunction keeping District officials from moving forward with marriage applications for same-sex couples beginning at 8:30 a.m.

The Complaint is now available here (pdf) at Law Dork.

It is unclear whether the District Court will take action at this time.]

[UPDATE 3: In an opinion posted to the Supreme Court's website after 5 p.m. Tuesday, Chief Justice John Roberts, acting alone, rejected the request of marriage equality opponents that he stay the effective date of the District's marriage equality bill. He wrote: "Without addressing the merits of petitioners’ underlying claim, however, I conclude that a stay is not warranted."

The Chief Justice specifically noted the argument advanced by the District that the Supreme Court generally defers to the local D.C. courts for "matters of exclusively local concern." Roberts also noted the fact that Congress did not act to disapprove of the law during the 30-day review period and the remaining availability of the initiative process in reaching his decision not to grant the stay.

The opinion is available here (pdf) at Law Dork, and my updated story, "Roberts Rules," is up at MW.]

[UPDATE 4: As same-sex couples began applying for marriage applications, I received word that the last last-ditch effort, the Sec. 1983 TRO claim filed in federal court, was rejected by another Roberts -- U.S. District Court Judge Richard Roberts.

In the opinion, Roberts determined both that Bishop Jackson and the others did not meet their burden of showing irreparable harm -- in large part because of the initiative process that they are pursuing -- and that the lawsuit -- claiming a violation of marriage equality opponents' due process rights -- was itself unlikely to succeed. He wrote:

[P]rocedural due process is satisfied when “an appropriate hearing has been provided at a meaningful time and in a meaningful manner.” . . .

The plaintiffs’ procedural due process right to be heard has been satisfied by their filing a motion for preliminary injunctive relief in Superior Court, and their subsequent opportunity to appeal after the Superior Court denied the motion.

The opinion is available here (pdf) at Law Dork.]

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