The U.S. Supreme Court has decided not to hear an appeal of a lower court ruling that has had the effect of blocking an initiative or referendum vote on same-sex marriage in the District of Columbia.
The high court’s action brings to an end this judicial phase of the effort to rescind a same-sex marriage law enacted by the D.C. city council in 2009. The law took effect in March 2010 and has never been enjoined by a court of law. As a result, same-sex marriages have been taking place in D.C. for nearly a year.
The basic issue in the case was the scope of the D.C. government’s authority to shield certain enactments from the city’s initiative and referendum process. That process was created under amendments Congress approved to the city’s Home Rule Charter in 1978 that authorized the city council to hold initiatives, referenda, and recall votes by the city’s voters, and it excluded only one type of legislation from being subject to these votes—measures that would appropriate funds from the public treasury. Nonetheless, in 1979, the city council passed a bill that excluded measures that would affect the city’s nondiscrimination laws from public votes.
Those laws are largely embodied in the city’s Human Rights Act, which has roots in the civil rights debates of the mid-20th century. When the city council created same-sex marriage in 2009, it included this provision in the Human Rights Act and then argued—successfully, as it turns out—that it had the power to block any referendum on the new law. The D.C. board of elections agreed with this view, as did the D.C. Court of Appeals in a 5-4 vote in January 2010.
Proponents of traditional marriage argue that, except for appropriations, the legislative power in the nation’s capital is concurrently held by the council and by the people. The city council is both free to enact same-sex marriage and to repeal it, and therefore the people have the same right under the terms Congress set for initiatives and referenda.
With the decision by the Supreme Court, some are saying the debate over same-sex marriage is over in the District. But the city remains a federal enclave subject to Congress’s ultimate authority. At the very least, Congress is free to disagree with the city and the lower courts’ view that the Human Rights Act is an appropriate place to secrete laws the people might not support. In 2009, Congress let the new same-sex marriage law go into effect, but Congress’s ultimate constitutional authority over the District allows it to change its mind at any time. It could insist, by various means, that D.C. recognize the concurrent legislative authority of the people and schedule a vote on same-sex marriage.
Council members who support same-sex marriage argue rhetorically that human rights should never be put to a vote. But whether a right to marry a person of the same sex actually exists, or is in the public interest, is exactly the issue at stake. Expansive notions of human rights are contentious topics, as a Member of Congress recently illustrated by arguing that a vote to repeal Obamacare would violate the U.S. Constitution.
Council members who support same-sex marriage are likely also aware that every other U.S. jurisdiction that has held popular votes on the issue has rejected same-sex marriage. Having said that, the District is one of the nation’s most liberal jurisdictions, and a vote there offers proponents of same-sex marriage a chance to show that they do indeed have popular support for their cause.
While the U.S. Supreme Court does not generally reveal its rationale for declining to hear a case, in this instance it’s obvious that legislative routes to address this intense dispute remain open for exploration. The High Court has left the future of marriage in the nation’s capital exclusively within the hands of elected representatives in the council and in Congress, though it is no longer in the hands of the people to take it upon themselves to vote.
Marriage is a cornerstone institution of civil society. That is reason enough to hope that its future will continue to be the subject of debates and votes in a city whose monuments stand for both our essential foundations and our deepest aspirations.