[JURIST] The American Bar Association (ABA) [organization website] on Tuesday adopted a resolution [text] calling on state and local governments to legalize same-sex marriage [JURIST news archive]. The resolution was adopted at the ABA annual meeting [executive summary, PDF] held in San Francisco over the past week. The resolution was adopted overwhelmingly [AP report], with only one member voicing opposition to it. It calls for all state, territorial and tribal governments in the US to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.” In explaining the legal need to recognize same-sex marriages, the ABA said:
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 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.
In anticipation of the ABA’s decision, the Alliance Defense Fund (ADF) and the National Lawyers Association (NLA) [advocacy websites] claimed that the resolution disproved the ABA’s claims that it speaks for the US legal profession. Additionally, they called on the ABA to “refrain from taking political positions” [press release]. The organization went on to compare Tuesday’s decision to the ABA’s 1992 decision to endorse abortion rights, causing a “significant exodus of lawyers leaving the ABA in protest.”
The resolution comes a week after a federal judge ruled that Proposition 8 [JURIST news archive], California’s ban on same-sex marriage, violates the US Constitution [JURIST report] by undermining both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. The ADF was a defender of the law and called the decision a “disappointing one” [press release], which “gut[s] the core of the American democratic system.” The organization has stated that it will appeal the case to the Supreme Court if necessary. Several jurisdictions in the US have legalized same-sex marriage, including the District of Columbia, Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report].