DriveThru – Get What You Need

The 3-page order is here.

In a nutshell, Chief Justice Roberts thinks that the petitioners’ (those asking for a stay of the new DC same-sex marriage law) argument “has some force.”

But then he goes on to remark on the uniqueness of DC’s governance. Historically, the Supreme Court has deferred to the courts within DC on matters of local concern. Second, he highlights the unique relationship of DC to Congress, who had the opportunity to stop this new law from going into effect but did not do so.

Finally, he says that this case hasn’t really ended. Although the petitioners’ quest for a ballot referendum (vote to kill the new law)  is now moot, a ballot initiative to restore the traditional definition of marriage will still wend its way through the DC courts on the legal issue of whether the DC Human Rights Code trumps the charter provisions on ballot issues, and the Supreme Court may have an opportunity to get involved at that stage.

We could end up with another California situation with same-sex marriage existing for a time before a return to one-man, one-woman marriage.

The new DC same-sex marriage law takes effect on Wednesday.

My earlier post on this issue is located here.

An appeal was filed by the Alliance Defense Fund yesterday with Chief Justice John Roberts over the District’s refusal to let the people vote on the issue of marriage.

Here’s what’s going on. The D.C. Council passed a law allowing same-sex marriage in the District. Bishop Harry Jackson, on behalf of himself and other District residents, asked for a referendum so that the voters of the District could decide on marriage. The request was denied in an administrative hearing. Jackson appealed to a trial court and asked as part of the lawsuit for an injunction blocking the law going into effect this Wednesday. The court denied it. Jackson appealed to the District’s appeals court on the injunction issue. Lost again. Now Jackson is asking the Supreme Court to look at the refusal to grant an injunction.

The District is unique in its governance. It has its own charter (the equivalent of a state constitution) and its own statutes, but Congress oversees the District and has the final say (if it wants to) over any laws the Council passes. Congress did not take any definitive action on the new law.

The standards for injunctions are pretty unique, and it’s hard for me to generalize about any of the legal developments in this case. But the basic issue looks like it comes down to this: Does a District statute (its non-discrimination code) trump the District’s own charter (which grants its citizens the right to hold voter initiatives and referenda)? The District, and the 2 courts who have ruled thus far, say “yes.”

There could be lots of other issues that complicate the basic question, and I have to hedge my bets here until I get to read some of the pleadings in the case,  but if a non-discrimination statute can trump a charter provision, then charters (and constitutions) are essentially meaningless documents.

And that’s a scary thing.

Warning: Graphic content included below.

In states where gay activists are pushing hard to legalize same-sex marriage, we keep hearing the same claim: This will not have an impact on our public schools.

That claim is simply untrue, and we need look no further than Massachusetts for evidence to the contrary.

Massachusetts was the first state to legalize full-fledged gay marriage. Not long after it was legalized, National Public Radio (NPR) featured an interview with an eighth-grade teacher, Ms. Allen, who was exuberant about her new-found freedom to talk about homosexuality in the classroom.

“In my mind, I know that, ‘OK, this is legal now.’ If somebody wants to challenge me, I’ll say, ‘Give me a break. It’s legal now,’ ” she told NPR.

The NPR reporter went on to explain that due to the gay marriage debate, Allen now discusses “gay sex” with students “thoroughly and explicitly with a chart.”

Allen explained in detail exactly how she explains this chart to kids: “All right. So can a woman and a woman kiss and hug? Yes. Can a woman and a woman have vaginal intercourse?, and they will say no. And I’ll say, ‘Hold it. Of course, they can. They can use a sex toy. They could use’—and we talk—and we discuss that. So the answer there is yes.” (From: "Debate in Massachusetts over how to address the issue of discussing gay relationships and sex in public school classrooms,” All Things Considered, National Public Radio, Sept. 13, 2004.)

It’s also disturbing to hear what’s happening at the elementary level in that state. Consider the parents in Lexington, Massachusetts, who complained that their kindergarten and second-grade age kids were exposed to storybooks introducing them to the idea of homosexuality and same-sex marriage.

Even more concerning were the school officials’ response to those parental concerns, as reported by The Associated Press: “Officials there say that since same-sex marriage is a part of life in Massachusetts, it comes up naturally and it’s impossible to notify parents every time the issue is discussed.”

“It certainly strengthens the argument that we need to teach about gay marriage because it’s more of a reality for our kids,”  Lexington Schools Superintendent Paul Ash said. (“Gay Marriage Foes Face Issue in Schools,” Associated Press, May 5, 2006.)

In light of these facts and public news accounts, is there really any serious question that legalizing gay marriage will tangibly and concretely affect our public schools? It’s simply disingenuous to claim otherwise.