ABA Resolves that States Adopts Same-Sex Marriage

The ABA overwhelmingly adopted a resolution urging state (as well as territorial and tribal) governments to permit same-sex marriage:

RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.

The Recommendation came from the Section on Individual Rights and Responsibilities in addition to more than two dozen other ABA divisions and organizations including the New York State Bar Association,  the Massachusetts Bar Association, the ABA General Practice, Solo, and Small Firm Division, the ABA Young Lawyers Division, the Hispanic National Bar Association, and the National Asian Pacific American Bar Association.

The Executive Summary for this Resolution does not make explicit constitutional arguments, but does specifically mention the inequality of other-than-marriage schemes:

1. Summary of the Recommendation

The recommendation urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex.

2. Summary of the Issue that the Resolution Addresses

Excluding same-sex couples from the right to marry has the practical impact of denying them and their children a host of rights and responsibilities that exist under both state and federal law. State protections automatically extended to married spouses include the ability to make health care decisions for one’s spouse, the right to direct the remains of a deceased spouse and inherit from his or her estate absent a will, the security of being able to provide health insurance for one’s spouse, and the peace of mind knowing that both adults’ relationships with children born to the couple will be protected. In a comprehensive report adopted in 2005, the New York State Bar Association documented numerous areas in which New York law, for example, provides specific rights and benefits reserved to married couples. On the federal level, there are at least 1138 federal statutory provisions in which marital status is a factor in determining whether an individual is eligible for federal rights or benefits, including family medical leave, health insurance benefits, and Social Security survivor benefits. In addition, the denial of these important protections harms the hundreds of thousands of children being raised by same-sex couples. The experiences of those states that have created legal relationships such as domestic partnerships that are intended to mirror the attributes of marriage, make plain that these separate and inferior systems perpetuate rather than cure the inequality that results from denying marital recognition to same-sex couples.

3. Please Explain How the Proposed Policy Position will Address the Issue

For over 30 years, ABA policy has kept pace with our society’s evolving understanding that gay and lesbian people are healthy, functioning contributors to our society who face discrimination – both as individuals and as families. Over that time, the ABA has taken a leading role in urging the elimination of discrimination against lesbian and gay people and their families. This recommendation – urging the elimination of legal barriers to civil marriage between same-sex couples -- builds upon this prior policy.

4. Summary of Minority Views

No minority views or opposition have been identified.

The Resolution and Recommendation is available as part of the Annual Meeting Executive Summaries, here (San Francisco Annual Meeting, page 164-165).  The  Resolution and Recommendation is also available with a supporting detailed report here.

RR