U.S. Supreme Court

ABA backs constitutional right to gay marriage in SCOTUS brief

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The ABA has filed an amicus brief urging the U.S. Supreme Court to rule that the 14th Amendment’s equal protection clause requires states to grant marriage licenses to gay couples.

The brief was filed in two of the four consolidated gay-marriage cases pending before the Supreme Court, according to a press release.

The brief (PDF) says ABA members have advised gay clients how to mitigate the effects of bans on same-sex marriages, but “the array of legal work-arounds is imperfect, costly and complex–and as a result the rights of marriage remain unavailable to many.”

Clients who cannot enter into gay marriages experience consequences such as the inability to adopt children jointly, the lack of an automatic right to determine how to dispose of a deceased partner’s remains or to receive property under the law of intestacy, limits on the ability to direct medical decisions for an incapacitated partner, the denial of tax benefits such as the ability to file joint income tax returns or to transfer real property without transfer taxes, and lack of a privilege to keep secret a spouse’s confidences.

Over the past 40 years, the ABA has repeatedly opposed discrimination based on sexual orientation, the brief says. The policy positions include:

–In 1973, the ABA adopted a policy urging the repeal of laws that criminalized private sexual relations between consenting adults.

–In 1999, the ABA adopted policy calling for adoption to be based on the best interest of the child and not on the sexual orientation of a prospective parent.

–In 2010, the ABA adopted policy urging states, territories and tribal governments to eliminate all legal barriers to civil marriage between same-sex partners who are otherwise eligible to marry.

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