Chief Justice Roberts Protects DC Gay Marriage Law

Commentary by Boyce Hinman

I have long assumed that, with the advent of the new more conservative U.S. Supreme Court, that court would return to its long standing tradition of judging gay rights cases based on the prejudices of the justices rather than the facts and the constitution.

But yesterday, Chief Justice Roberts did something astonishing. He refused to prevent a Washington DC same sex marriage law from going into effect.

Last fall the Washington D.C. city council passed a law allowing same sex couples to register to marry in that city and to legally marry. Because of the city’s unique status, Congress can overturn any law passed by the city. However it has a time limit on how long it has to overturn such laws. Yesterday was the end of the time period for overturning the marriage law and Congress took no action on it.

Bishop Harry Jackson, of Hope Christian Church, appealed to U.S. Supreme Court Chief Justice John Roberts to put the city ordinance on hold until he and other opponents of the law could mount a referendum to see if the voters of Washington want to overturn the ordinance.

But Chief Justice Roberts issued a decision on March 2 refusing to put the ordinance on hold. As a result, same sex couples began registering to marry in Washington, DC today, March 3. So the city now joins Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont as places where same sex couples may legally marry.

In his decision, Roberts noted that the Washington, D.C. charter allows the voters in the city to overturn an ordinance passed by the city council. However, he also noted that the City Council has exempted from referendum any vote that would violate the city’s Human Rights Act.

Jackson argued that the city council does not have the power to exempt any laws from referendums that are required by the D.C. charter. Presumably he thinks that would be like Congress passing a law to amend the constitution without any further process needed.

Jackson went on to state that, if Justice Roberts refused his request, the people of Washington, DC would lose their right to vote on the ordinance in a referendum.

Robinson made several points in refusing Jackson’s request. First he noted that it has been the practice of the Supreme Court to defer to the courts of Washington, D.C. in any matters relating solely to the city.

Second, he said, Congress had the authority to overturn the marriage ordinance, but it failed to do so within the 30 day time limit. He also noted that Congress had had the right to overturn the D.C. ordinance exempting certain D.C. Council actions from the referendum process. And, again, Congress did not do so.

Finally, Justice Roberts agreed that, unless the ordinance is put on hold, the voters would lose the opportunity to hold a referendum on it. However, he noted that the opponents of the marriage ordinance have already started a ballot initiative, as allowed by the city charter, as another way of overturning the ordinance. So, said Roberts, the voters may yet get a chance to vote on the issue.

Justice Roberts refused to put the ordinance on hold.

You may see a copy of Justice Robert’s 3 page decision by directing your browser to the following address: www.calcomui.org and clicking on “Same Sex Marriage” on the left side of our home page, and finally clicking on “Justice Robert’s Decision on Same Sex Marriage”.

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Boyce Hinman is the founder of California Communities United Institute and can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it