Jackson v. District of Columbia Board of Elections and Ethics

Cite as: 559 U. S. ____ (2010) 1
Opinion in Chambers
SUPREME COURT OF THE UNITED STATES
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No. 09A807
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HARRY R. JACKSON ET AL. v. DISTRICT OF
COLUMBIA BOARD OF ELECTIONS
AND ETHICS ET AL.
ON APPLICATION FOR STAY
[March 2, 2010]
CHIEF JUSTICE ROBERTS, Circuit Justice.
Petitioners in this case are Washington D. C. voters who
would like to subject the District of Columbia’s Religious
Freedom and Civil Marriage Equality Amendment Act of
2009 to a public referendum before it goes into effect,
pursuant to procedures set forth in the D. C. Charter. See
D. C. Code §§1–204.101 to 1–204.107 (2001–2006). The
Act expands the definition of marriage in the District to
include same-sex couples. See D. C. Act 18–248; 57 D. C.
Reg. 27 (Jan. 1, 2010).
The D. C. Charter specifies that legislation enacted by
the D. C. Council may be blocked if a sufficient number of
voters request a referendum on the issue. D. C. Code §1–
204.102. The Council, however, purported in 1979 to
exempt from this provision any referendum that would
violate the D. C. Human Rights Act. See §§1–
1001.16(b)(1)(C), 2–1402.73 (2001–2007). The D. C. Board
of Elections, D. C. Superior Court, and D. C. Court of
Appeals denied petitioners’ request for a referendum on
the grounds that the referendum would violate the Human
Rights Act.
Petitioners argue that this action was improper, because
D.C. Council legislation providing that a referendum is not
required cannot trump a provision of the D. C. Charter
specifying that a referendum is required. See Price v.
2 JACKSON v. DISTRICT OF COLUMBIA BD. OF
ELECTIONS AND ETHICS
Opinion in Chambers
District of Columbia Bd. of Elections, 645 A. 2d 594, 599–
600 (D. C. 1994). They point out that if the Act does be
come law, they will permanently lose any right to pursue a
referendum under the Charter. See §1–204.102(b)(2)
(2001–2006). Petitioners ask the Court for a stay that
would prevent the Act from going into effect, as expected,
on March 3, 2010.
This argument has some force. Without addressing the
merits of petitioners’ underlying claim, however, I con
clude that a stay is not warranted. First, as “a matter of
judicial policy”—if not “judicial power”—“it has been the
practice of the Court to defer to the decisions of the courts
of the District of Columbia on matters of exclusively local
concern.” Whalen v. United States, 445 U. S. 684, 687
(1980); see also Fisher v. United States, 328 U. S. 463, 476
(1946).
Second, the Act at issue was adopted by the Council and
placed before Congress for the 30-day period of review
required by the D. C. Charter, see §1–206.02(c)(1). A joint
resolution of disapproval by Congress would prevent the
Act from going into effect, but Congress has chosen not to
act. The challenged provision purporting to exempt cer
tain D. C. Council actions from the referendum process,
§1–1001.16(b)(1)(C), was itself subject to review by Con
gress before it went into effect. While these considerations
are of course not determinative of the legal issues, they do
weigh against granting petitioners’ request for a stay,
given that the concern is that action by the Council vio
lates an Act of Congress.
Finally, while petitioners’ challenge to the Act by way of
a referendum apparently will become moot when the Act
goes into effect, petitioners have also pursued a ballot
initiative, under related procedures in the D. C. Charter,
that would give D. C. voters a similar opportunity to re
peal the Act if they so choose. See §§1–204.101 to 1–
204.107; Jackson v. District of Columbia Bd. of Elections
Cite as: 559 U. S. ____ (2010) 3
Opinion in Chambers
and Ethics, Civ. A. No. 2009 CA 008613 B (D. C. Super.,
Jan. 14, 2010). Their separate petition for a ballot initia
tive is now awaiting consideration by the D. C. Court of
Appeals, which will need to address many of the same
legal questions that petitioners have raised here. Unlike
their petition for a referendum, however, the request for
an initiative will not become moot when the Act becomes
law. On the contrary, the D. C. Court of Appeals will have
the chance to consider the relevant legal questions on
their merits, and petitioners will have the right to chal
lenge any adverse decision through a petition for certiorari
in this Court at the appropriate time.
The foregoing considerations, taken together, lead me to
conclude that the Court is unlikely to grant certiorari in
this case. Accordingly, the request for a stay is denied.
It is so ordered.