This week, at its annual meeting in San Francisco, the American Bar Association through its House of Delegates passed Resolution 111 which “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”. Among the groups sponsoring the resolution were the New York State Bar Association and the Association of the Bar of the City of New York. NYSBA President Stephen P. Younger says that the resolution passed overwhelmingly, with only one speaker voicing opposition during debate. The ABA’s approval comes days after Judge Vaughn Walker’s Order in Perry v. Schwarzenegger which struck down California’s voter-approved same-sex marriage ban. Younger says the timing of the ABA’s vote is a coincidence.
The resolution lacks the force of law but shows that many in the legal profession feel that marriage equality helps meet the ABA’s goals to “Eliminate bias in the legal profession and the justice system” and “Work for just laws, including human rights, and a fair legal process”. The initial report and recommendation for the resolution lays out the arguments for equality asserting that the lack of marriage for same-sex couples “offends our constitutional commitments to liberty and equality.” It invokes many historic civil rights rulings, including Loving v. Virginia, the Supreme Court ruling that struck down prohibitions on interracial marriage, and Brown v. Board of Ed., which desegregated public schools:
Asserting that separate systems for classes of citizens can satisfy constitutional equality guarantees as long as identical legal rights are conferred invokes the long-repudiated reasoning in Plessy v. Ferguson. In that case, the Court upheld separate railway cars for African-Americans. . . . However, as our constitutional tradition and history has made clear, only full marriage equality comports with our constitutional standards that separate is not equal. See Brown v. Board of Ed., 347 U.S. 483 (1954).
In the past 20 years, the ABA has supported adoption and second-parent adoption rights for same-sex couples, statutes to prohibit discrimination on the basis of sexual orientation in child custody and other areas, and repeal of Section 3 of DOMA (which prohibits federal recognition of same-sex marriages). It also opposed a federal constitutional amendment that would prohibit states from recognizing same-sex marriages.