Case before Supreme Court may offer preview of what is to become of Proposition 8

The City Council of the District of Columbia legalized same-sex marriage last December. Ever since, a coalition of social conservatives and religious groups have been working to bring the issue before the voters to decide, citing a provision of the City Charter which grants citizens of the District the right to hold a referendum on anything except "laws appropriating funds." Over the past year the effort has faced setbacks in both the Legislative and Judicial branches of government.

Bishop Harry Jackson of the Hope Christian Church
and leader of StandForMarriageDC, who I had an
opportunity to meet and work with twice during the
2010 Summer for Marriage Tour in Annapolis and D.C.

First, the coalition, which goes by the name "StandForMarriageDC", and is led by Bishop Harry Jackson, sued the District after the D.C. Board of Elections refused to grant them permission to hold a referendum to define marriage.

According to the Board of Elections, such referendum would have violated the city's Human Rights Act.

In January, 2010 the D.C Superior Court agreed with the Board of Elections and upheld their decision.

Congress had refused to intervene on the matter during their 30-day congressional review period, which they have over the city's affairs. Congress even has the ability to bypass the local city government altogether to pass legislation of their own. As a result, the same-sex marriage law went into effect on March 3, 2010.

Although Chief Justice John Roberts said Bishop Jackson's argument "has some force", he opted not to issue an emergency stay which would have put same-sex marriage on hold, at least temporarily. A full version of Justice Robert's decision can be read here.

Utah Senator Bob Bennett, facing a tough primary challenge from Tea Party favorite Mike Lee, tried in March to add an amendment to the health care reform legislation that would have prohibited the city from issuing marriage licenses to same-sex partners until the voters had a chance to weigh in on the matter. The Democrats were ultimately able to kill that amendment.

The next setback came in July right as the National Organization for Marriage was kicking off its 2010 Summer for Marriage Tour. StandForMarriageDC had appealed the January ruling from the D.C. Superior Court to the D.C. Court of Appeals, where in a 5-4 ruling, the Court affirmed that a referendum on the definition of marriage would violate the city's Human Rights Act.

Since then we've seen Proposition 8 ruled unconstitutional by a federal judge in San Fransisco. We've seen part of the Defense of Marriage Act ruled unconstitutional by a federal judge in Boston. We also saw a very powerful rally in front of the U.S. Capital to wrap up the Summer for Marriage Tour.

In the video below, you can see Bishop Harry Jackson leading the people in a rally chant of  "Let the people vote, Let the people vote, Let the people vote".

There is no question that this issue is headed to the Supreme Court and most likely to be heard is the Perry v. Schwarzenegger case out of San Fransisco, which on appeal to the 9th Circuit Court of Appeals and set to kick-off in December. Much of the debate, however, centers on how the Supreme Court will rule in Perry.

On both sides people agree that four justices will affirm the right of same-sex marriage (Kagan, Sotomayor, Ginsberg and Breyer) while four will almost certainly affirm traditional marriage (Roberts, Alito, Scalia and Thomas) as something worthy of preserving and something the government has a legitimate state interest in regulating. That leaves Justice Kennedy as the swing vote.

The only debate lies in which way Kennedy will vote. Justice Kennedy wrote the majority opinion in Lawrence v. Texas, a historically significant Supreme Court case that ultimately struck down anti-sodomy laws in various states across the Nation.

However, in his opinion, Kennedy did not offer too much insight into how his legal mind reacts to the notion of governmental recognition of same-sex relationships. He wrote:

The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

In this Kennedy affirms the right of homosexual and heterosexuals alike to engage in sexual activities, which he calls "the most private human conduct" as they please. But he glosses over the issue of relationship recognition which was not at issue in this case.


There is part of his opinion, however, which is particularly interesting given the discourse on the topic of homosexuality in today's society. It also brings more light into which way Kennedy may swing in the Perry case. He continued:

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.

The last clause of that sentence is what is interesting. Kennedy points out that, while the State (or a court) ought not to regulate the boundaries of a relationship, he implies that such regulation is possible or even perhaps necessary, when a person is injured or more importantly, an institution the law protects is injured.

Marriage being in many ways an extension - or expansion of the boundaries of a relationship, it could be argued that the institution of marriage is one of those institutions protected by the law that may be "injured" as a result of the legalization of same-sex marriage.

At the very least, Kennedy acknowledged that circumstances may exist when it maybe necessary to define the boundaries of a relationship and that is critical as we move forward. This is particularly critical given Justice Kennedy's comments on the homosexual relationship in general:

It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.

First off, Kennedy wrote here that entering into a homosexual relationship is a choice. Secondly, he acknowledged that a private relationship between two people of the same sex taking place within the confines of their own homes is enough for one to "retain their dignity as a free person".

This is important as marriage is a public contract, not private, and homosexual activists claim the denial of marriage to same-sex couples is demeaning to their dignity and makes them second-class citizens.

It appears, unless Justice Kennedy has changed his mind, that the decriminalization of homosexuality so that to enter into an intimate homosexual relationship at your heart's desire ought to be enough for one to retain one's dignity as a free person.

Still, having taken all this into account, forecasting the Supreme Court's potential ruling in Perry is not entirely possible. After all, although most proponents of same-sex marriage count Justice Elena Kagan as safely in their corner, it was she don't forget, who said there is no right to same-sex marriage in the Constitution during her confirmation hearings. She is likely to vote for same-sex marriage but that is something to keep in mind.

So quite possibly one of the best forecasters we can use to "judge the judges" on this matter surrounds a petition, Jackson v. D.C., filed by StandForMarriageDC to the Supreme Court to appeal the negative ruling they received from the DC Court of Appeals in July.

If the Court agrees to hear the case, they will be hearing a case very similar to but substantially different from the Perry case. The two cases are similar in that they surround the issue of the right of citizens to vote on the definition of marriage via ballot initiative or referendum.

They are substantially different in that the Perry case will tackle the issue of a ballot initiative approved by the voters and then struck down while the petition from StandForMarriageDC will ask the Court to affirm the right of DC's citizens to vote in the first place.

Even a narrow ruling in this case out of DC, (if the Court agrees to hear it) would shed light onto the prospects of the Perry case. It is difficult to see the Supreme Court affirming the right of DC's citizens to vote on the definition of marriage, although many contend it violates the city's Human Rights Act, and then turn around and deny the right of Californians to do essentially the same thing.

Another possibility is that the Supreme Court won't hear the case and thus won't issue a ruling and we'll be left in the dark to merely speculate how Justice Kennedy's legal mind has evolved, if at all, over the past 7 years since Lawrence v. Texas.