Notes on marriage initiative arguments at D.C. Court of Appeals
Each side had 45 minutes. They were heard by the full nine-judge court. D.C. Solicitor General Todd Kim argued for the District (yes, that's the pro-gay side). Austin Nimocks of the Alliance Defense Fund argued for Bishop Jackson and his fellow appellants. The audio file is 74 MB and is 1 hour, 32 minutes long, and can be downloaded here: http://glaa.org/~mtuason/JacksonVBOEE.mp3. The city's brief is here. (I'll post a link to the appellants' brief when I get it.)
Herewith are my own rough notes from the courtroom.
The strongest questioning that appeared supportive of our side was by Judge Phyllis Thompson. She pressed Nimocks to state the charter’s purpose. Since there is no explicit statement of purpose, Nimocks resorted to saying that the text of the statute is clear on its face and needs no interpretation. That struck me as rather desperate, but it’s pretty much the foundation of their argument. Judge Thompson shot back, “You read a lot of restrictions into a definition.” (referring to the right of initiative.)
Judge John Fisher asked Nimocks, “What in the legislative history supports your position?” and Nimocks answered that nothing in the legislative history supports the contrary view. Judge Glickman disputed Nimocks’s characterization of the legislative history, noting that there had been mention of other states’ restrictions on the righ of initiative. Judge Anna Blackburne-Rigsby observed that the charter doesn’t allow initiatives to build tall buildings.
Judge Vanessa Ruiz noted that the Charter grants the Council authority “to pass such acts as are necessary” etc., and suggested that a certain degree of deference is owed to the Council. The due deference point came up many times.
Judge Thompson raised as an analogy the fact that the law granting authority to the small claims court says that anyone may sue in small claims court if the amount of the damages they are claiming is less than $5,000 and does not involved real property, but that the court won’t hear a case if you fail to file within a certain amount of time. She said there is no claim that such a restriction is invalid on account of its not being spelled out in the legislation establishing the small claims court. She cited GAA’s (now GLAA’s) concerns expressed during consideration of the IPA in 1979 about initiatives being used to discriminate. Nimocks said that only the restriction on measures that appropriate funds was legitimate because that’s all that was mentioned in CAA. Nimocks insisted that any other prohibitions (such as the one in IPA prohibiting measures that would authorized discrimination prohibited by HRA) thus are in conflict with CAA. Judge Thompson said it is not clear there is a conflict at all.
Judge Inez Reid cited the “substantial deference” in the Atchison case.
Judge Fisher noted that the proposed initiative language does not explicitly state that it would repeal JAMA or the Marriage Equality Act, and said, “We don’t take kindly to repeal by implication.”
Solicitor General Kim, arguing for our side, said that CAA crucially contains no substantive guarantee that initiatives cannot be limited.
He contrasted initiative provisions with recall provisions, the latter apparently specifying the intent more precisely.
He stressed that Congress had delegated power to the Council and said that deference was therefore owed to the Council in exercising its sweeping delegated authority (“notwithstanding any other provision....”)
He said that what the Council did in IPA was not affirmatively inconsistent with the Charter. He noted that the same Council enacted both CAA and IPA, and cited Judge Macaluso’s statement that the same Council knew what it intended in the CAA. He noted that IPA initially had a set list of protected categories, but that was changed to refer to HRA, the latter indicating an awareness that protections might change. He also quoted the IPA committee report that stated “the initiative process may not be used to place the Government in the posture of affirmatively condoning discrimination.”
Kim noted that the Council’s passage of JAMA and the Marriage Equality Act changed the legal facts and the legislative intent concerning the marriage laws from thirty years ago, and that the proposed Initiative was clearly discriminatory on the basis of sexual orientation.
One of the judges noted that the right to initiative in CAA was not self-executing. Nimocks kept referring to the “plain meaning of the text” in claiming that IPA’s subject-matter restrictions conflict with CAA. He did not really make the case, he just kept asserting it. I believe it was Judge Fisher who pointed out that the Home Rule Act gives the Council broad authority over elections in the District. Nimocks said the present case is about an initiative, not an election. At that point I wanted to slap him for sheer brazen silliness.
Nimocks cited the CAA’s one explicit limitation on the right of initiative (appropriation of funds) as somehow showing that the right of initiative was otherwise co-extensive with the Council’s right to legislate. Basically, appellants’ position rests upon a static conception of the law, which is convenient for them since post-Dean facts and changes to the law have rendered it inapplicable. There was little if any direct reference to Dean. I did not hear any reference to the argument made previously by appellants that there is no discrimination because gays and lesbians can marry members of the opposite sex. But naturally there were frequent interruptions by the judges, so who knows what arguments Nimocks would have gotten to if he had the time. As it was, though, he did a lot of repeating of himself.
Someone afterward said they thought it would be a 5-4 decision and that Chief Judge Eric Washington was against us; but I am not as ready to make predictions, though I thought it was pretty clear that Judges Thompson and Ruiz were with us. I don’t recall Judges Kathryn Oberly and Noel Kramer saying anything. My overall impression was that the Court was inclined to give considerable deference to the Council in exercising its delegated authority, which will give us a win.
Bob Summersgill comments, "I don't think that their questioning gave away their positions, if they had taken any. Only Judge Thompson was clearly for us. Cheif Judge Washington is not obviously against us. He seemed skeptical of both sides."