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As the American Bar Association Annual Meeting opened yesterday, one of the first conference programs was titled “Same-Sex Marriage — Moving Beyond State Courts.”  The discussion occurred shortly after Chief U.S. District Judge Vaughn Walker ruled that the Proposition 8 initiative was unconstitutional.

Speaking to the decision, ABA President Carolyn B. Lamm noted, “The ruling of the United States District Court for the Northern District of California certainly points out what a very significant legal issue or series of issues marriage equality raises.  We know that marriage equality impacts issues in families’ lives — taxation, succession, custody of children, breakup and others.”

Panelists of the program were to include Ted Olson, who argued the case of Perry v. Schwarzenegger that challenged the constitutional validity of Proposition 8, but given the ruling’s timing, Olson was unable to attend.  Therese Stewart, San Francisco chief deputy city attorney, spoke in his stead. 

Stewart pointed out that evidence and research have shown that there is no difference in children being able to function whether raised by opposite sex parents or parents of the same sex.  People’s feelings on morality and immortality should not be the basis of law, said Stewart.

Gill v. OPM, in contrast, focused on federal recognition of couples who are already married, specifically Section 3 of the Defense of Marriage Act dealing will federal benefits.  Mary Bonauto, who argued that case, cited that marriage equality is not only about benefits but is as much about responsibilities, providing the example of conditioning eligibility for benefits on financial means.

Raymond Marshall, former president of the Bar Association of San Francisco and the State Bar of California, who moderated the program asked why marriage was sought, rather than civil unions or some other arrangement.  “Words matter.  Names matter,” stressed Stewart. “Everyone knows what marriage means.”

When asked why lawyers and courts should be involved, Bonauto succinctly stated that marriage is a legal institution.  In days gone by, interracial marriages have been prohibited as have inmate marriages. 

Lawyers and courts are important, argued panelists — Beth Robinson, an expert on state court marriage equality cases, also spoke — but the court of public opinion is also critical.  “I’m not sanguine about young people favoring [marriage equality],” said Stewart.  Popular opinions are fluid.

One attendee asked whether contracts entered into by committed individuals were being challenged.  The number of gaps that need filing in order to address all needs are too onerous.  “No paper I could draft” could address them all, noted Robinson.  

Marshall emphasized that — in the spirit of the American Bar Association — program planners invited speakers on both sides of the issue to take part in the session, but did not receive any acceptances from the other side.

The Annual Meeting of the American Bar Association runs through Aug. 10.  During the meeting of its policymaking House of Delegates on Aug. 9 – 10, the association will consider a recommendation dealing with marriage equality.  

The recommendation, as it is being brought to the House, reads, “[T]he 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.”

Lamm noted, “As the nation's largest organization of lawyers, we in fact need to consider these issues because it impacts the lives of the public.  We will be debating them on Monday and this certainly helps to inform our debate.”

More than 20 entities of the ABA as well as state and local bars are bringing the measure to the House of Delegates. The ABA, with nearly 400,000 members, is the largest voluntary professional association in the world.


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