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.