Continuing with its general policy of refraining from getting involved with questions of local law in the District of Columbia, the Supreme Court denied without comment a petition for certiorari in Jackson v. District of Columbia Board of Elections and Ethics, No. 10-511, 2011 Westlaw 134291 (Jan. 28, 2011), decision below, 999 A.2d 89 (D.C., July 15, 2010), an action by some District residents asserting a right to place an initiative on the D.C. local election ballot that would define marriage as solely between a man and a woman.
On May 5, 2009, the D.C. City Council passed a local law under which the District's government would recognize same-sex marriages contracted in other jurisdictions. This was actually a test by same-sex marriage proponents to see whether local legislation on same-sex marriage could survive the Congressional review process. (Congress has a veto on local legislation, but must act promptly after such legislation is passed.) When Congress failed to veto the recognition law, the Council took the next step, passing a law authorizing same-sex marriage in the District in December 2009. An attempt by House Republicans to move a veto measure died in committee, and the District's marriage law went into effect in the spring of 2010.
Opponents of same-sex marriage in the District moved quickly to challenge these developments. Led by Reverend Harry R. Jackson, Jr., they proposed an initiative to allow the voters in the District to determine whether same-sex marriage should be recognized or available, by voting on a proposition to define marriage in the district as consisting only of the union of a man and a woman. The District's Board of Elections ruled that such an initiative was not authorized by District law, since it would conflict with the District's Human Rights Law, which forbids sexual orientation discrimination. Superior Court Judge Judith N. Macaluso upheld the Board's ruling, and the District's Court of Appeals affirmed Judge Macaluso's decision on July 15 in a 4-3 decision. The court's ruling engaged in what might be characterized as a somewhat innovative interpretation of the federal and local laws governing the initiative process in the District. In light of the split vote and the vehement dissenting opinion, there was at least some suspense about whether the Supreme Court would take the case.
As usual, the Supreme Court did not provide any explanation for denying the petition. Sometimes members of the Court will openly dissent from such cert denials and file dissenting opinions, but none were filed in this case. That doesn't necessarily mean that the vote within the Court was unanimous, merely that there were not at least four votes in favor of granting the petitition to review the lower court's ruling, and that none of the Justices, if any, who favored review were interested in noting their views publicly. The Court's cert denial should not be construed as a vote on the merits in favor of same-sex marriage. Depending what happens in the Proposition 8 litigation pending in the 9th Circuit, the Court might be called upon to address the issue a few years down the line….
The upshot is that the right of same-sex marriage in the District of Columbia is secure for now, and it is noteworthy that such availability has immediate extra-territorial consequence because the Attorney General of Maryland issued a formal opinion last year that same-sex marriages contracted elsewhere will be recognized in that neighboring state. A measure to authorize same-sex marriages in Maryland is expected to receive consideration in the legislature during 2011, with high hopes for passage. Of course, the other states that allow same-sex marriages (Vermont, New Hampshire, Connecticut, Massachusetts, Iowa) will recognize as marriages the same-sex marriages contracted in the District of Columbia, and other states with civil union or domestic partnership laws will extend some form of recognition to such marriages. Additionally, at present New York recognizes same-sex marriages contracted elsewhere, and earlier this month the Attorney General of New Mexico issued a formal opinion arguing that such marriages should be recognized in that state as well.