May 23, 2008  |  By: CHRIS JOHNSON  | COMMENTS     

The prospect of local gay couples marrying in California and returning to the District is not enough to convince Mayor Adrian Fenty to release a secret memo drafted for the previous mayor that reportedly details whether or not the city should recognize gay unions.

Acting D.C. Attorney General Peter Nickles told the Blade that he has advised Fenty not to release the memo.

“I’ve advised him that the Spagnoletti memo is outdated and that it ought not to be released,” he said.

Nickles said he would not reveal why he thought the opinion was outdated because he did not want to disclose information within the document.

Former D.C. Attorney General Robert Spagnoletti, who is gay, drafted the opinion under the administration of former D.C. Mayor Anthony Williams, who refused to release the memo. Fenty, while campaigning for mayor, promised to make the opinion public immediately upon taking office, but has yet to release the document.

Anonymous sources have told the Blade the opinion states same-sex marriages would be recognized under D.C. law. Domestic partnerships are legal in the District.

When the California Supreme Court last week overturned a state ban on same-sex marriage, it opened up the possibility for D.C. gay couples to wed in that state because California has no residency requirement for marriage. Couples could wed in California, return to the District and demand that their marriage be recognized.

Nickles said he is looking at the California high court ruling as well as decisions made on same-sex marriage in other states in his review of how D.C. will handle the situation.

D.C. Councilmember Jim Graham (D-Ward 1) said the California ruling means that gay D.C. residents should “renew those calls for the legal opinion” to be released.
“People are entitled to know whether they have a valid marriage in the District of Columbia before they move here,” he said. “The more places where it’s possible to have a same-sex marriage, the greater the need to have this clarified.”

Graham, who is gay, said it was “very plausible” that D.C. gay couples could marry in California, return to Washington and sue for the right to have the District recognize the marriage.

But Rick Rosendall, vice president for the Gay and Lesbian Activists Alliance, questioned whether it would be wise for a D.C. gay couple married elsewhere to sue.

“The court in D.C. is federally controlled, its judges are appointed by the White House and its history on same-sex marriage has not been a friendly one,” he said.

He cited the 1990s case of Craig Dean and Patrick Gill v. District of Columbia in which the D.C. Court of Appeals rejected same-sex marriage as a definitional impossibility.

Rosendall said proceeding legislatively would probably be a lot faster than litigation because the D.C. gay community has built a strong relationship with D.C. City Council over many decades.

GLAA is pushing for the Council to approve a bill allowing D.C. to recognize same-sex marriages enacted elsewhere. Rosendall said the recent California ruling “raises the issues in higher relief,” but cautioned against addressing the issue in haste.

“In general, we are better off proceeding in a strategic and deliberate manner than in a reactive one,” he said.

Graham speculated that passing a bill in D.C. to recognize same-sex marriage from elsewhere would be just as difficult as passing a bill enabling same-sex marriage because they both raise the same sensitivities.

He also noted that the Council’s decisions are subject to congressional approval. Graham said the Council has made an informal decision to wait until the November election before acting on the marriage issue.

“Assuming a more favorable reception in the Congress, D.C. would act very quickly, I’m sure of it,” he said.

Rosendall advised D.C. couples against getting married in California simply because the opportunity exists there now, noting that divorce after getting a same-sex marriage can be difficult.

“Couples would be smart to sit down and discuss their plans soberly so they know what they’re getting into, rather than let themselves be carried away by the emotions of the moment,” he said.