In December 2009, the Washington DC city government legalized same-sex marriage. Naturally, this attracted a lot of controversy because oh my God, gays can marry each other!!!!
Congress, to the chagrin of DC residents, can overturn any DC law that it does not like so long as it acts within a 30 day review period. Being controlled by Democrats (and Nancy Pelosi in particular in the House) Congress did absolutely nothing, so the law stood. In March 2010, the city began issuing licenses to same-sex couples.
Spearheaded by Bishop Harry Jackson, a group of clergy tried to get a the DC marriage law on a ballot for a city-wide referendum. The DC Board of Elections refused to authorize the referendum claiming that it would violate the city’s Human Rights Law. Jackson and his fellow clergymen appealed to the DC Superior Court which affirmed the Board. The DC Court of Appeals did the same. Jackson filed a petition for certiorari* to the United States Supreme Court.
On January 18, 2011 the Supreme Court issued a denial of cert, effectively ending Jackson’s farce. There is no further recourse; same-sex marriage is staying in the District.
Having said that, I was surprised that it was big news that the Supreme Court denied cert. I was positive there was no way the Court would take this case.** While I have no doubt that (1) certain members of the Court are hostile to the idea of same-sex marriage, and (2) the Justices are very well aware that same-sex marriage cases are on the horizon, this was not a case that the Supreme Court was going to touch. DC passed a law, and it has its own internal system for referenda. DC laws are created by its own internal political structure, reviewable by Congress, and overseen by DC’s court system. This issue was so DC-specific that nothing about it would affect the rest of the nation. Supreme Court intervention would have been treading on the toes of DC’s government and Congress–something that the Court tries to avoid whenever possible. And for what? Even if the Court took the case, nothing about it would have applied outside of this one instance. Such specificity is anathema to the Court (except for Bush v. Gore.)
So, it is completely not shocking that the Supreme Court denied cert even though all the major newspapers wrote about it, and all the LGBT bloggers blogged about it. But do not read too much into what the Supreme Court did. When the DOMA cases that are currently working their way through the Circuit Courts of Appeals finally reach the Court, well that’s when the battle really starts.
* For those who don’t know what that means, here is an explanation. Everyone has the automatic right to appeal a trial court decision to an appellate court. However, in the federal system (and many of the states) you do not have the right to a second appeal–a second appeal usually being to the Supreme Court. To get a case to the Supreme Court a petitioner has to file what is called a writ of certiorari (cert), which explains to the Supreme Court why that particular case is worthy of being heard. The vast majority of these petitions are denied. In legal jargon this is referred to as a denial of cert.
** Trying to figure out which cases the Supreme Court will or will not take is a fun parlor game, but it is not advisable for the lay person to gamble over. The Justices will often refuse to hear cases that seem to require their input and take cases that no one expects them to. I had a law professor, a former Supreme Court clerk, who, at her family’s Thanksgiving dinner in 2000, swore to anyone who would listen that there was no way the Supreme Court would hear the case that eventually became Bush v. Gore.