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A Closer Look at the Roberts Opinion on Marriage in D.C.


As has been noted here, Chief Justice Roberts yesterday declined to issue a stay of a new D.C. law that redefines marriage to include same-sex couples. The opinion (PDF) he issued, though, is also important. The D.C. Board of Elections had refused to allow a referendum on the law, relying on a legislative limitation on referenda. In their argument to the chief justice, D.C. voters who had proposed the referendum argued that the legislative limitation could not trump the D.C. Charter’s requirement of a referendum. Chief Justice Roberts said: “This argument has some force.”

He decided, however, to defer to the D.C. Court system, noting that Congress had not acted in its supervisory role and that these voters could secure the same result (a law protecting the definition of marriage from legislative redefinition) through a proposed initiative now pending review in the D.C. Court of Appeals (so the harm the voters were complaining of could still be ameliorated). He specifically noted that the court of appeals “will need to address many of the same legal questions that petitioners have raised here” and that “petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.”


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