The American Bar Association (ABA) has now officially endorsed the recommendation in urging state, territorial and tribal governments to eliminate all of the legal barriers to civil marriages between same-sex couples otherwise eligible to marry.

The ABA Journal quoted former ABA President Tommy Wells as saying, “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.”

Support for Resolution 111 has been multiplying in a steadfast manner following the ruling that California’s Proposition 8 ban on same-sex marriage violated the U.S. Constitution in the case of Perry v. Schwarzenegger. Incoming ABA President Stephen 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?”

U.S. Justice Department’s senior counselor for access to justice, Laurence Tribe, attended an ABA annual meeting on Saturday, August 7, 2010 and shared his thoughts on the Proposition 8 ruling and the U.S. Supreme Court. He speculated that he thought the U.S. Supreme Court would uphold the district court ruling in Perry v. Schwarzenegger and that Justice Anthony M. Kennedy would provide the swing vote.

Resolution 111 states the following:

RESOLVED, That the 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.

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 a comprehensive report adopted in 2005, the New York State Bar Association documented numerous areas in which New York law, for example, provides specific rights and benefits reserved to married couples.On the federal level, there are at least 1138 federal statutory provisions in which marital status is a factor in determining whether an individual is eligible for federal rights or benefits, including family medical leave, health insurance benefits, and Social Security survivor benefits. In addition, the denial of these important protections harms the hundreds of thousands of children being raised by same-sex couples.  Treating same-sex couples differently not only tangibly harms those individuals, couples, and their families, but also stigmatizes them and their children by deeming them unworthy to enjoy fundamental and equal citizenship rights.  SeeLawrence v. Texas, 539 U.S. 558, 576, 578 (2003) (finding that past precedent upholding constitutionality of anti-sodomy criminal statute demeaned and stigmatized gay and lesbian individuals).  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.  

The ABA endorsement of Resolution 111 is one more recent step in the direction towards equality for the lesbian, gay, bisexual and transgender communities. 

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