City Desk

Nickles Says No Referendum Allowed on Gay Marriage Measure

Attorney General Peter Nickles has concluded that a recently passed District law recognizing out-of-state gay marriages should not be subject to a referendum.

That, of course, isn't the final word on the matter by any means—the Board of Elections and Ethics is now in the process of deciding whether or not to allow the referendum. But Nickles' legal opinion, set forth in a five-page letter [PDF], could provide significant influence on a decision to reject a ballot question.

Nickles submitted his opinion in response to a request last month from the board. He says that the marriage-recognition law "is a reflection of the Council's intent to acknowledge as valid in the District yet another aspect of the lives of same-sex couples—their marriages—as long as those marriages were legally entered into where performed and are not otherwise void or deemed to be illegal under District law."

What Nickles does not address is whether marriages generally speaking are subject to the provisions of the Human Rights Act—and thus, whether the landmark 1995 Dean v. District case has any bearing. (He does, however, explicitly mention that he was "particularly impressed" by the arguments of the D.C. Council's lawyer, Brian Flowers, who does argue that Dean does not apply.)

Instead, Nickles sticks to issues of "comity"—that the council acted to remedy the fact that not all out-of-state marriages could be accepted in the District, in violation of well-establish principles of "full faith and credit." As a result of that, he holds, the idea that straights and gays would be treated differently violates the Human Rights Act.

The recognition law, furthermore, Nickles writes, "reflects the Council's continuing sensitivity to the policy of equal treatment embodied in the Human Rights Act" and that a referendum on the matter "would run counter to the letter and spirit of the HRA."

Thus, he concludes, "the proposed measure is not a proper subject for a referendum under District law, and the proposer's petition should be denied."

The big question is: Does this make Nickles the first District AG to reach a conclusion on out-of-state gay marriages?

Famously, his predecessor Robert Spagnoletti was said to have addressed the issue back in 2005—albeit on the broader question of whether the District could recognize foreign marriages absent council action.

That decision, the famed "Spagnoletti memo," has never been released.

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  • Andrew

    Read my lips: DEMOCRACY. Let the people decide. There will be NO CONSENSUS on this issue in the courts or the council/legislature. Therefore, the people should be the jury/referee and decide what to happen in a democracy.

  • SG

    Yeah, Andrew. Shame on the courts for striking down "Separate but Equal" too! Should have let the people decide! I'm suurree they wouldn't infringe on the rights of a minority group. I mean, that never happens, right?

  • sigmund freud

    Andrew: DEMOCRACY also means we live by laws and the law in DC says a referendum cannot be held for issues that violate the HUMAN RIGHTS ACT. So, go back to PG County or wherever your ignorant thoughts come from.

  • Tom

    Yes, but is marriage a right?

  • Q

    Andrew don't give up. Anything that Cheney (I mean Nickels) says is suspect anyways. SG and Dr. Freud (assuming we are talking to him from the great beyond) have some valid points, but the real issue is tightly veiled under marriage (sorry for the pun). The issue is a broader one of GLBT being recognized and being free from discrimination in all facets.

    To SG, nice dig on the segregation front, but seriously, although segregation was struck down in 1954, up until that time the "separate schools" were government sponsored. The LAW then was to set up such establishments. Not saying that they were equal, but the govt actually had them built. When you can show me state sponsored marriages, then your argument will be valid.

    To Dr. Freud, The Human Rights Act doesn't cover polygamists, polyandrists, and other incestuous relationships. It may cover sexual preference, but if I desire to be married to 5 women, that gives you a right to discriminate against me? Are you saying that the HUMAN RIGHTS ACT alone determines what is up for referendum? Come brother, let's reason together. All laws should be considered. And the fact of the matter is that some laws contradict each other.

    While the HUMAN RIGHTS ACT may be at issue, what's to stop you from fufilling your research on the Oedipus complex in DC? Will the law prevent you from marrying your mother? Does the Human Rights Act have any provision of being discriminated against if you enjoy beastiality? Would it stop someone from marrying their sibling? Would it stop polyandry or polygamy? While all of these are currently illegal, clearly they are not covered in the HUMAN RIGHTS ACT.

    Before you jump on Andrew and others with the same viewpoint, look at ALL associated laws. Personal biases aside, the Dean case was tried based upon law right?

  • Elizabeth

    Yes Tom, marriage is a right. At least for straight people, according to the US Supreme Court.

    I love how that now legislatures are starting to vote for gay marriage, the anti-gays are calling them anti-gay tyrants as well! Why is legislatures are fine for passing all of our other laws, just not the ones granting rights to a disliked minority?

  • Elizabeth

    "The Human Rights Act doesn’t cover polygamists, polyandrists, and other incestuous relationships. It may cover sexual preference, but if I desire to be married to 5 women, that gives you a right to discriminate against me? Are you saying that the HUMAN RIGHTS ACT alone determines what is up for referendum?"

    Um, yes: according to DC law, the Human Rights Act is the guideline for determining an appropriate referendum. Polygamists, pedophiles and bestialists (?) aren't covered, so it is perfectly legitimate to pass referendum restricting their rights. If you don't like that, you should mount a campaign to alter the Human Rights Act for their inclusion. But I think their exclusion is appropriate. Polygamists are not a discrete minority like gays are. Both pedophiles and bestialists (?) are inherently harmful and exploitative.

  • SG

    Q- it's not a dig. It's the truth. There are ways that our system is set up to protect minority groups (in theory). In reality this doesn't usually happen until there is a certain critical mass of sentiment in favor of protection and/or granting rights.

    The government should ALWAYS err on the side of granting rights rather than forbidding them. And yes, I'm sure that extends to many things you find objectionable. But then again this isn't the United States of Q, or the United States of SG.

    These issues shouldn't be as important as educating kids, ending ongoing wars, and reforming a bankrupt government and healthcare system anyways. Let's move on with granting equal rights to this group and move on to other things. It's just delaying the inevitable- don't be on the wrong side of history for someone that won't directly affect you.

  • Q

    Thank you Elizabeth. What was I thinking -- To think that Males, Females, Blacks, Whites, Browns, Jews, Christians, Muslims, Atheists, able-bodied, disabled, etc. aren't inherently harmful and exploitative!?! Yes, we are all born to love, but it is the evil of living in DC that makes people and relationships harmful and exploitative. :) Rather than slide down this slippery slope, let me say that I understand your point, but I disagree.

    Discrete minorities...interesting concept. If we made a giant Venn diagram of the population of DC, let alone the USA, we could carve out quite a few discrete minorities that may not be covered under the Human Rights Act. Based on that, some folk in Utah and Texas would arguably disagree with your statement.

    Referendums work both ways, so why not make a referendum that amends the lawS governing who can marry. It won't do anything for the Dean case, but it makes a pretty prescriptive argument that this is strictly about marriage and not about a broader issue.

    The Human Rights Act (you can read the full version here http://ohr.dc.gov/ohr/cwp/view,a,3,q,491858,ohrNav,%7C30953%7C.asp ) "is intended to end discrimination in the District of Columbia based on race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business."

    Even as broad and seemingly all encompassing as that sounds, there are types of discrimination not covered or contradicted by Law. Prostitution is against the law, but you can't discriminate against me if that's how I make my money. However, if I had a terminal disease or chronic ailment, the condition of my health or suitability could be up for discrimination...i.e., he has the "cooties" so we are well within our rights to bar him access. Not only that, but the language isn't consistent in all areas.

    The law is flawed, yes. But before you use it to prove a case against a referendum, please make sure that all loopholes are plugged.

    One more thing, how can the BOEE even hold this meeting or make a decision when it doesn't have all three members? I guess two people make a quorum, but I'd be the first to cry foul (on either side of the argument) if a split vote happens. Is this part of the reason why the proposed confirmation of "FoF" Nour (Friend of Fenty) is taking so long? Is the deck about to be stacked or will objectivity and clear interpretation of the lawS (plural) be excercised?

  • shadow_man

    The slippery slope argument fails on so many levels. Gay marriage has only been legal recently, as we been eliminating ignorance and realizing there is nothing wrong with homosexuality. However, polygamy, has been observed in many countries and times throughout the past, with a majority of the relationships being men with multiple woman.
    http://en.wikipedia.org/wiki/Polygamy

    By your logic, this means heterosexual marriage has a tendency to lead to polygamy and polyandry, so we should eliminate heterosexual marriage then too. See why your "slippery" slope logic fails? Also, since gay marriage has a tendency to lead to heterosexual marriage, again, if you are using the slippery slope argument, we need to get rid of marriage altogether since heterosexual marriage leads to gay marriage. That is why the slippery slope argument fails.

    Also, you're doing what everyone else does and you're comparing one social taboo with another while ignoring what makes them different. Attraction to the same sex does not equate to polygamy (or incest, as a matter of fact: for one thing I don't imagine a relative would somehow only be attracted to other relatives) remotely in any way outside of the fact that they are both socially stigmatized. Gay marriage does not equate to multiple partners. Apples and oranges are both fruits.

    Also, it's significant to note that gay marriage has been legal in MA for 5 years now, i don't see anyone pushing for polygamy. The slippery slope is a myth meant as a scare tactic that's quickly becoming obsolete.

  • shadow_man

    Homosexuality is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexual, you are bi-sexual. Virtually all major psychological and medical experts agree that sexual orientation is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexuality, studies tend to indicate that its biological.

    http://www-news.uchicago.edu/releases/03/differential-brain-activation.pdf
    http://www.newscientist.com/channel/sex/dn14146-gay-brains-structured-like-those-of-the-opposite-sex.html
    Gay, Straight Men's Brain Responses Differ
    http://www.foxnews.com/story/0,2933,155990,00.html
    http://www.livescience.com/health/060224_gay_genes.html
    http://www.springerlink.com/content/w27453600k586276/
    http://blogs.discovermagazine.com/80beats/2008/06/16/172/

    There is overwhelming scientific evidence that homosexuality is not a choice. Sexual orientation is generally a biological trait that is determined pre-natally, although there is no one certain thing that explains all of the cases. "Nurture" may have some effect, but for the most part it is biological.

    And it should also be noted that:
    "It is worth noting that many medical and scientific organisations do believe it is impossible to change a person's sexual orientation and this is displayed in a statement by American Academy of Pediatrics, American Counseling Association, American Association of School Administrators, American Federation of Teachers, American Psychiatric Association, American Psychological Association, American School Health Association, Interfaith Alliance Foundation, National Association of School Psychologists, National Association of Social Workers, and National Education Association."

  • Tom

    It's a choice, and the glbt community experiences more freedom than any "minority" group in history. I am not anti homosexual, but they are far from being considered an oppressed community.

    The entire strategy is self destructive, for as many states that vote to accept gay marriage there are 2 that vote to abolish. How do you really think this is going to end? Once everyone state shows their hand, then what? I assume many partners could not travel to certain states, because if something medical or harmful happen they might be SOL.

  • cminus

    There will be NO CONSENSUS on this issue in the courts or the council/legislature.

    Why not? The only naysayer on the Council is Marion Barry, and he's forgotten that he opposes gay marriage two times out of three. Just schedule the vote on a day when he's especially confused or hung over, and there's your unanimous consensus on the Council.

  • Q

    Shadow_man, much like you've "heard the slippery slope" arguments, I too have heard everything you've said before. You forgot to mention that DSM-IV removed homosexuality from their listing of psychological disorders. Please do not mistake my discourse on this bill as trying to eliminate "gayness". Rather than debate with you over science, selection, choice, and genetic attraction, let me say this... Regardless to whom you are attracted or not attracted to, marriage is still defined in non-secular terms. This is true for the heterosexual, homosexual, eunic, and hermaphrodite. The more this issue is pushed scientifically, soon the 23rd chromosome will be obsolete and Male will simply be defined as the human species that produces sperm. Female will simply be defined as the human species that produces ova.

    The slippery-slope arguments weren't even directed towards your examples of polygamy and polyandry, but let me entertain your commentary. First, polygamy, polyandry, or plural marriage is a concept that FOR NOW is defined in the heterosexual realm. Polygamy, polyandry, plural marriages are not exclusive to heterosexuals however. They can clearly be applied to homosexual relationships and warrant some of the same "inherently harmful and exploitative" behaviors that Elizabeth implied. I didn't mention these examples or incestuous relationships based on social taboo. I mentioned these because they are not necessarily covered by the Human Rights Act, but covered under other statutes. Those other statutes DEFINE marital framework -- in this case placing limits on the number of spouse(s) and to what degree from the genetic pool you can marry. All this to say that, MARRIAGE IS DEFINED legally with limits. Whether these limits were derived from the spiritual realm is debatable. But, this at least shows precedence in laws that DEFINE marriage.

    Moving on...Tom and I are on the same page with this in terms of not being anti-gay, but observing what started off as a broad Human Rights issue narrow itself to a special discrete class issue. As I've said in other blogs, if the overall mission is to gain GLBT acceptance from the "mainstream" heterosexual Judeo-Christian majority, fighting this on the marriage front is the wrong tactic to take. Fight it on the protracted fronts of the "next of kin" interpretation when it comes to hospital visits. Fight it on the protracted fronts of probate and estate distribution. There are many other worthy and worthwhile fronts where you would receive relatively no opposition instead of marriage.

    Yes, MA, and IA may have the "legality" together, but in the long run. African-Americans have been looking for this universal "acceptance" for close to 400 years now, so get in line and expect a long fight. Consequently, ever since the 13th and 14th Amendment passed, discrimination didn't disappear, it just has been more covert. One only needs to look at the headline story of this past Wednesday to see how far we've got to go.

    Civil Rights ain't for the faint of heart and you definitely can't wimp out at the first sign of opposition.

  • Q

    Meant to say, "Yes, MA, and IA may have the “legality” together, but in the long run we are supposed to be United States. If we are not United on this issue, there will be difficulty in the long run. I'm not saying secession is in play, but a house divided against itself can't stand. Hmm, maybe this is all part of an anarchist conspiracy to overthrow the USA. No bombs, no terrorists, no volatile economic issues, just simply a social issue that consumes the populace to a point where we are distracted from other issues."

...