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The ABA House of Delegates considered several measures that deal with division of pow­ers between state, federal and international governments during the ABA Mid­year Meeting in San Antonio.

The delegates met in Feb­ru­ary, just days after Massa­chu­­setts’ highest court advised legislators that the state constitution requires them to grant gay couples the right to enter into full marriage rather than just civil unions. While that ruling prompted demonstrations and controversy, ABA delegates managed to sidestep much of that debate when they took up a re­lated matter.

The resolution, approved after no one spoke in opposition, opposes any federal measure that would pre-empt states from defining marriage.

“Let me begin by telling you what this measure is not. It is not a position on the merits of whether same-sex couples should have the right to enter into marriage,” said Indiana delegate C. Elisia Frazier, who introduced the measure on behalf of the Section of Individual Rights and Responsibilities.

Colorado delegate Timothy Walker noted that the measure was not a precursor to the ABA taking a position on whether same-sex marriage is a constitution­al right.

“This is not a resolution about same-sex marriage. It’s about states’ rights,” Walker said. He added that states are already exempted under the federal Defense of Marriage Act from being required to afford full faith and credit to marriages entered into in other jurisdictions, though most states do recognize such marriages.

The resolution appears to be aimed at attempts by some federal authorities to draft a constitutional amendment that would define marriage as a civil contract between one man and one woman. Some of those who op­pose gay marriage or civil unions also worry that such an amendment could be found by courts to violate the equal protection clause, leaving states with a ruling that would require them to recognize gay unions.


Delegates also reconsidered a resolution support­ing limits on universal jurisdiction, which gives nations the authority to prosecute citizens of other countries who commit war crimes. The original resolution had garnered controversy at the 2003 annual meeting when opponents claimed the proposed limits were so broad that war criminals could avoid prosecution. Supporters had claimed limits are needed to bar international prosecutions of U.S. troops.

This time the measure addressed previous concerns, and it passed without opposition. Using language from the International Criminal Court statute, the resolution states that countries may pre-empt prosecution if they are willing and able to prosecute their own citizens for such crimes.

“We worked hard to address all interested parties’ concerns,” says William M. Hannay III, an Illinois delegate and past chair of the ABA Section of International Law and Practice. “What we have is a strong statement of the ABA’s policy on this issue.”

The division of federal and state authority was at issue when the House voted to urge the federal government to retain exclusive jurisdiction over civil immigration matters. The resolution opposes delegating authority to state and local police to enforce immigration laws. It also opposes proposed federal legislation that would allow the government to seize assets of illegal immigrants and charge them with a crime for being present in the United States without proper documentation of legal entry.

The resolution is aimed at a federal bill known as the CLEAR Act, fully titled the Clear Law Enforcement for Criminal Alien Removal Act. The bill would grant absolute immunity to local law enforcement officials to detain and seize assets of suspected illegal immigrants.

“This federal bill jeopardizes the separation of powers by asking local law enforcement officers to enforce civil immigration laws,” said Ohio delegate David C. Weiner in support of the resolution. “Meanwhile, local authorities are granted absolute immunity for improper application of complex civil immigration laws.”

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