Jackson v. District of Columbia Bd. of Elections, Civ. No.

2009 CA
008613 B, slip.op. (D. C. Super., Jan. 14, 2010), petition for
cert., Jan. 15, 2010, No. 10-CV-20 (D.C. Ct. App.)

Procedural History Compiled By Michael Ginsborg, MLS

Prop. 8 and the Right to Marry
Third Update: May 6, 2010

Introduction

On March 2nd, Chief Justice Roberts denied an application for an emergency

stay of the D.C. Religious Freedom and Civil Marriage Equality Amendment
Act of 2009. (Prop. 8 and and the Right to Marry) (SCOTUS blog also posts
the opposition to the application, and the reply.) Plaintiffs sought the stay
pending a forthcoming petition for review of a judgment by the D.C. Court of
Appeals in Jackson v. D.C. Bd. Elections & Ethics, Civ. No. 2010 CA 000740,
slip op., (D.C. Super. Ct., Feb. 20, 2010), aff'd, No. 10-CV-177 (D.C. App.
Ct., Feb. 26, 2010). The issue involved a proposed referendum on the
marriage equality law before it took effect March 3rd. Plaintiffs - a group of
ministers - challenged a ruling by the D.C. Elections and Ethics Board that
disqualified the referendum. In re Referendum on the Religious Freedom and
Civil Marriage Equality Amendment Act of 2009, (D.C. Bd. Elections & Ethics,
Feb. 4, 2010). On February 5th, plaintiffs petitioned the D.C. Superior Court
to review the Board's decision and issue a writ compelling the Board to
accept the referendum. They also filed a motion for a preliminary injunction
to keep the marriage equality law from taking effect. D.C. Superior Court
Judge Brian Holeman denied the motion; plaintiffs appealed; but the D.C.
Court of Appeals upheld Holeman's order. Plaintiffs exhausted their alleged
remedy for injunctive relief when Chief Justice Roberts denied their
emergency application. And this case ended with Robert's decision, because
a court could decide the referendum question only if plaintiffs succeeded at
staying the marriage equality law.

If the same plaintiffs in a related case succeed, a court order would require
the D.C. Elections Board to accept The Marriage Initiative of 2009, limiting
marriage to heterosexual couples. The case arises from a decision by the
Board to disqualify the initiative. It raises three questions: (1) Did the D.C.
Council have authority under the Charter Amendments Act to prohibit
initiatives that violate the Human Rights Act? (2) If passed, would the
Marriage Initiative violate the Human Rights Act by discrimination on the
basis of sexual orientation? (3) Is there an implied exclusion of initiatives
that, if passed, would violate existing statutes?

I am compiling a procedural history of this "initiative" case - now before the

D.C. Court of Appeals - for two reasons. First, voters will have opportunity
to overturn D.C.'s marriage equality law if plaintiffs prevail. Plaintiffs have
favorable odds of success if the case reaches the Supreme Court. Chief
Justice Roberts found that arguments by petitioners in the "referendum"
case "have a certain force," even if he declined to consider their merits. The
referendum petitioners make the same arguments in their initiative case.
Moreover, Roberts said that "petitioners will have the right to challenge any
adverse decision [in the initiative case] through a petition for certiorari in
this Court at the appropriate time." That prospect strikes me as likely.

Second, as a law librarian, I see the need to keep relevant filings in an

accessible place, as websites that link to them today may not link to them
tomorrow.

Finally, I disclose a limitation. I have chosen not to reference a second,

proposed initiative to reverse marriage equality, filed by evangelical D.C.
resident Joyce Little. The D.C. Elections Board rejected it on March 1st.
Reverse Chronology

05/04/10

Oral argument scheduled in "initiative" case. Audio file and brief by

respondent District of Columbia.

03/03/10

Religious Freedom and Civil Marriage Equality Amendment Act of 2009 takes
effect.

03/02/10

Jackson v. District of Columbia Bd. of Elections, 559 U. S. ____ (2010)

Chief Justice denies emergency application to stay Religious Freedom and

Civil Marriage Equality Amendment Act of 2009. Plaintiffs sought stay for
U.S. Supreme Court to review merits of their arguments for ballot
qualification of proposed Referendum on the Religious Freedom and Civil
Marriage Equality Amendment Act of 2009.

02/26/10

Jackson v. D.C. Bd. Elections & Ethics, No. 10-CV-177, slip op., (D.C. App.
Ct., Feb. 26, 2010), upholding D.C Superior Court's order on 02/20/10 to
deny motion for preliminary injunction

02/20/10

Jackson v. D.C. Bd. Elections & Ethics, Civ. No. 2010 CA 000740, slip op.,
(D.C. Super. Ct., Feb. 20, 2010), dismissing motion for preliminary
injunction against Religious Freedom and Civil Marriage Equality Amendment
Act of 2009. Granting the motion would have allowed D.C. Superior Court
time to review plaintiffs' challenge to 02/04/10 ruling by D.C. Bd. Elections &
Ethics.

02/04/10
In re Referendum on the Religious Freedom and Civil Marriage Equality
Amendment Act of 2009, (D.C. Bd. Elections & Ethics, Feb. 4, 2010),
disqualifying proposed referendum.

01/27/10

Hearing of D.C. Bd. Elections & Ethics on Proposed referendum on the

Religious Freedom and Civil Marriage Equality Amendment Act of 2009
(witnesses)

01/22/10 - 01/29/10

Legal Comments Received on the Proposed Referendum on the Religious and

Civil Marriage Equality Amendment Act of 2009

Attorneys

• Alliance Defense Fund attorneys and Foley & Lardner Attorney Clara
Mitchell Counsel for Referendum Proponents, supplemental letter 01/
29/10)
• Alliance Defense Fund attorneys and Foley & Lardner Attorney Clara
Mitchell Counsel for Referendum Proponents, (01/22/10)
• D.C. Attorney Peter J. Nickles (01/22/10)
• Office of the General Counsel. D.C. Council (01/22/10)
• Mark Levine, Counsel, Gertrude Stein Democratic Club (01-22-10)
• D.C. Councilmember Phil Mendelson (01-27-10)
• Tom Williamson, attorney, Covington & Burling, counsel for Reginald
Stanley and Rocky Galloway, Campaign for All D.C. Families, and D.C.
Clergy United (01/27/10)

Citizens and organizations

• Janae Grant , Vice Chair, D.C. Advisory Neighborhood Commission 5A

(01-27/10)
• Barry C. Knestout, for Archdiocese of Washington (01/22/10)
• Howard Croft, Board Member, Americans for Democratic Action,
Greater Washington Chapter (01/27/10)
 • Amy Hinze-Piper, resident, Ward 7 (01/27/10)
• Peter Sprigg, Senior Fellow for Policy Studies, Family Research Council
(01/27/10)
• Bob Summersgill, former President, Gay and Lesbian Activist Alliance
(01/25/10)

01/15/10

Jackson v. District of Columbia Bd. of Elections, Civ. No. 2009 CA 008613 B,

slip.op. (D. C. Super., Jan. 14, 2010), petition for cert., Jan. 15, 2010, No.
10-CV-20 (D.C. Ct. App.)

01/14/10

Jackson v. District of Columbia Bd. of Elections, Civ. No. 2009 CA 008613 B,

slip. op., (D. C. Super., Jan. 14, 2010), granting motion of D.C. Attorney
General for summary judgment (upholding decision by D.C. Bd. Elections &
Ethics to reject D.C. Marriage Initiative of 2009)

01/06/10

Referendum on the Religious Freedom and Civil Marriage Equality

Amendment Act of 2009, filed by Harry R. Jackson et al. (D.C. Bd. Elections
& Ethics, Jan. 6, 2009)

01/05/10

Amicus brief of American Center for Law and Justice and members of
Congress, Jan. 5, 2010, Jackson v. District of Columbia Bd. of Elections, Civ.
No. 2009 CA 008613 B, (D.C. Super. Ct.)

12/18/09

Religious Freedom and Civil Marriage Equality Amendment Act of 2009.

enrolled and signed by Mayor Adrian M. Fenty

Motion to dismiss petition, Dec. 18, 2009, Jackson v. District of Columbia

Bd. of Elections, Civ. No. 2009 CA 008613 B, (D.C. Super. Ct.)
11/18/09

Petition for review of decision by D.C. Bd. Elections & Ethics and for writ of
mandamus, Nov. 18, 2009, Jackson v. District of Columbia Bd. of Elections,
Civ. No. 2009 CA 008613 B, (D.C. Super. Ct.), alleging that D.C. Charter
Amendments Act does not allow Human Rights Act (HRA) to limit subject of
initiatives, and that D.C. Marriage Initiative of 2009 does not violate HRA.

11/17/09

In re Marriage Initiative of 2009 (D.C. Bd. Elections & Ethics, Nov. 11,
2009), disqualifying proposed initiative

10/26/09

Hearing of D.C. Bd. Elections & Ethics on D.C. Marriage Initiative of 2009
(Prop. 8 and the Right to Marry)

10/05/09 -10/26/09

Legal Comments Received on the Proposed Marriage Initiative of 2009

Attorneys and Public Officials

• American Center for Law and Justice (undated)

• Alliance Defense Fund attorneys and Foley & Lardner Attorney Clara
Mitchell, Counsel for Initiative Proponents (10/16/09)
• Office of the General Counsel, D.C. Council (10/14/09)
• Mark Levine, Counsel, Gertrude Stein Democratic Club (10/16/10)
• Phil Mendelson, D.C. Councilmember (10/16/09)
• Peter J. Nickles, D.C. Attorney General (10/05/09)

Citizens and organizations

• Rick Rosendall, Vice President for Political Affairs, Gay and Lesbian
Activists Alliance, prepared testimony for 10/26/09 hearing
 • Bob Summersgill, former President, Gay and Lesbian Activist Alliance
(10/26/10)
• Kathryn Pearson-West, Resident, Ward 5(10/26/09)

10/06/09

Religious Freedom and Civil Marriage Equality Amendment Act of 2009,

introduced

09/01/09

D.C. Marriage Initiative of 2009, filed Sept. 1, 2009 (D.C. Bd. Elections &
Ethics)

07/07/09

D.C. Jury and Marriage Amendment Act of 2009 takes effect; Alliance
Defense Fund supports a marriage initiative" (Prop. 8 and the Right to
Marry)

06/30/09

Jackson v. Bd. Elections & Ethics, No. 2009 CA 04350, slip. op., (D.C. Super.
Ct. Jun. 30, 2009) (denying petition for review and motion for summary
judgment, and granting motion to dismiss)

06/17/09

Petition for review of agency decision and for writ of mandamus, Jackson v.
Bd. Elections & Ethics, filed by referendum proponents, Jun. 17, 2009, No.
2009 CA 04350 (D.C. Super. Ct.) (Washington City Paper)

06/15/09

In re Referendum Concerning the Jury and Marriage Amendment Act of 2009

(D.C. Bd. Elections & Ethics, Jun. 15, 2009)

06/09/10 and 6/11/10

Legal Comments Received on the Proposed Referendum Concerning the Jury
and Marriage Amendment Act of 2009

Attorneys and Public Officials

• Jack Evans, D.C. Councilmember, Ward 2 (06/09/09)

• Brian K. Flowers, General Counsel, D.C. Council (06/09/09)
• Aaron Flynn, attorney, Hunton & Williams (06/09/09)
• Mark Levine, Counsel, Getrude Stein Democratic Club (06/09/09)
• Peter Nickles, D.C. Attorney General (06/11/09)
• Brian Raum, Senior Attorney, Alliance Defense Fund, and Attorney
David New, Counsel for Referendum Proponents (06/09/09)
• Arthur Spitzer, Legal Director, ACLU, National Capital Area, and
Sharon McGowan, Staff Attorney, ACLU LGBT Project (06/09/09)

Citizens

• Bob Summersgill, former President, Gay and Lesbian Activist Alliance

(06/09/09)
• Mitch Wood, President, Gay and Lesbian Activist Alliance (06/09/09)
• Keshini Ladduwahetty, Chair, DC for Democracy (06/11/09)

06/10/09

Hearing of D.C. Bd. Elections & Ethics on Proposed Referendum on Proposed

Referendum Concerning the Jury and Marriage Amendment Act of 2009
(Prop. 8 and the Right to Marry)

05/27/09

Proposed Referendum Concerning the Jury and Marriage Amendment Act of

2009, filed 05/27/09 (D.C Bd. Elections & Ethics)

05/06/09

D.C. Jury and Marriage Amendment Act of 2009 (Enrolled Version), Bill No.
18-10. Act ; Act 18-70; enacted 06/06/09; effective 07/07/09