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House Supports Marriage Equality Resolution

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With the endorsement of organization leaders past and present, the ABA’s House of Delegates approved by voice vote a measure supporting the right of gays and lesbians to marry in civil ceremonies.

Speaking at the annual meeting, incoming ABA President Stephen N. Zack asked, “Why would anyone in this country not want two people who love each other to enjoy the blessings of marriage and the protections of law?” Zack is a partner in the Miami office of Boies, Schiller & Flexner.

Former ABA President H. Thomas Wells Jr., a partner at Maynard Cooper & Gale in Birmingham, Ala., told the House, “Our citizens of the same sex who are being denied the right to a civil marriage are only seeking to participate in an equal basis in a foundational institution of our civil life. They simply want to share in the legal blessings that we give to married couples. It can only strengthen marriage.”

Only Leslie W. Jacobs, past president of the Ohio State Bar Association and a partner in the Cleveland office of Thompson Hine, spoke against the measure. He sought unsuccessfully to table the motion.

“What we do [in the House] seriously affects our perception in lawmaking forums. If we are perceived to be off base on something that lawmakers readily understand, I don’t think they can be expected to defer to us on something … they don’t understand,” Jacobs said.

Only a week before Resolution 111 was presented to the House, a U.S. district judge ruled in Perry v. Schwarzenegger that a California ban on same-sex marriage violated the U.S. Constitution. In an interview at the annual meeting, David Boies, one of the lead plaintiffs attorneys in Perry, said it would be “significant” if the ABA would support marriage equality. “The ABA obviously is the most respected legal organization in the United States, and probably the world, and its opinion will be listened to by legislators and courts,” he said.

The House has long supported the legal rights of gays and lesbians:

• In 1989 it urged passage of statutes that prohibit discrimination on the basis of sexual orientation.

• In 1995 it opposed discrimination on the basis of sexual orientation in matters of child custody.

• In 2004 it adopted policy opposing efforts to enact a federal constitutional amendment that would prohibit states from recognizing same-sex marriage.

• Last year it urged repeal of section 3 of the Defense of Marriage Act; that section denies federal marital benefits and protections to lawfully married same-sex spouses.


The house also approved—all by voice vote—resolutions involving immigration representation, Justice Department internal investigations and the Comprehensive Nuclear Test Ban Treaty.

A resolution was approved urging free legal counsel to noncitizens facing immigration difficulties as a result of unrelated criminal proceedings. In its ruling this year in Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires defense counsel to competently advise a noncitizen defendant regarding the immigration consequences of a guilty plea to criminal charges. Guilty pleas, even those involving misdemeanors, can result in deportation. An estimated 10 percent of criminal defendants are noncitizens, according to the report accompanying the resolution.

The ABA’s policymaking House of Delegates urged the U.S. Department of Justice to more fully report on its investigations into misconduct by DOJ attorneys. The measure passed by an overwhelming voice vote; no one spoke in opposition.

The House also called on Justice to release more detailed results of investigations into misconduct by federal prosecutors. About a decade ago, the DOJ stopped publishing those reports, though it continues to issue details regarding misconduct in personnel matters, as well as statistical aggregations about misconduct investigations. The resolution passed overwhelmingly.

Finally, the House urged the U.S. to ratify the Comprehensive Nuclear Test Ban Treaty. Six months ago, the 561-member House rejected a similar measure after questions were raised about whether taking a position on the treaty is germane to the ABA’s mission. At this annual meeting, no one spoke in opposition. The treaty is designed to create a binding global agreement to prohibit all nuclear test explosions.

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