May 2010

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.

This week, the D.C. Court of Appeals - the District's highest court - heard oral arguments in the second Jackson v. District of Columbia Board of Elections and Ethics (Jackson II). After the out-of-jurisdiction marriage recognition bill passed in May 2009 and knowing the District Council was moving towards passage of the "Religious Freedom and Civil Marriage Equality Amendment Act of 2009," opponents of marriage equality filed a petition for an initiative with the Board of Elections and Ethics (BOEE) that would add a provision to the marriage code stating "only marriage between a man and a woman is valid or recognized in the District of Columbia." Following a public hearing, the BOEE rejected the initiative on the grounds that it violated the District's Human Rights Act (HRA). Opponents, led by Bishop Harry Jackson Jr., subsequently sued in D.C. Superior Court.

While the underlying concern in this case is the right of same-sex couples to be married in the District, the case turns on the technical issue of whether the subject matter limitation on initiatives violating the HRA itself violates the D.C. Charter. The petitioners also claim that their proposed initiative does not violate the HRA. They rely on the disingenuous argument that LGBT people are not discriminated against since they can still marry so long as they marry someone of the opposite sex. In their brief filed with the D.C. Court of Appeals, petitioners assert that "a male who considers himself ‘gay' and a woman who considers herself a ‘lesbian' can obtain a marriage license, even though they are... not ‘sexually oriented' towards each other." (Emphasis in the original)

A coalition of marriage equality proponents representing supportive residents, clergy, and local and national civil rights organizations came together to file an amicus brief in support of the BOEE. The conservative American Center for Law and Justice submitted an amicus brief on behalf of 49 members of Congress voicing support for the petitioners. Of those, only one has supported the right of D.C. residents to have a voting representative in Congress.