Wednesday, August 5, 2009

American Bar Association Opposes (Part of) the Defense of Marriage Act

The American Bar Association House of Delegates recently passed a resolution calling for the repeal of Section 3 of the Defense of Marriage Act (DOMA). Section 3 prohibits same-sex couples who have legal marriages under state law from receiving any of the federal benefits of marriage.

The American Bar Association (ABA), is a voluntary legal association for attorneys. According to an ABA news release, which also contains a link to the text of the resolution:

"[The resolution] neither supports nor opposes civil marriage for same-sex couples...but would ensure that state decisions on whether to recognize such marriages are given deference under federal laws and programs. The measure is advocated by ABA sections of Individual Rights and Responsibilities and Family Law, the Massachusetts Bar Association and the Beverly Hills and San Francisco bars."

Unfortunately, I know that what professional organizations say about marriage equality and LGBT rights holds little sway in the minds of those whose minds are already turned against the Gay Agenda. Despite the fact, for instance, that the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1973, many anti-gay individuals and organizations remain convinced that homosexuality is a mental illness and that the removal was orchestrated by the super-duper powerful homosexualist lobby.

In fact, even though virtually every professional membership organization supports same-sex marriage, homosexuality, or adoption, as relevant to particular fields of study, anti-gays trust their guts more than they trust experts, who they deem to be motivated by a sense of political correctness gone too far.

Nonetheless, I read through the ABA's recommendation regarding DOMA and I find it to be persuasive and legally tenable. Not that it matters to many anti-gays, but a strong argument can be made that DOMA is a usurpation of state's rights. If a person is an intellectually consistent libertarian, this should matter:

"Throughout our history, the federal government has looked to state and tribal law to determine who is married for purposes of these provisions. But in 1996, Congress abandoned this tradition of deference to the states by enacting the Defense of Marriage Act, Section 3 of which denies same-sex couples married in accordance with state law the legal protections, rights, and responsibilities accorded to other married persons under federal law....

The enactment of this provision was an unprecedented encroachment on state prerogatives in the field of marital and family law, overriding state determinations and profoundly altering the traditional distribution of authority between the federal government and the states in the field of family law. It has deprived thousands of lawfully married same-sex spouses of the range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty."

Regardless of one's opinions about marriage equality or LGBT rights, one cannot coherently claim to respect the principles of federalism while also respecting what DOMA does. It's too bad that so many people, wearing their Oppose-Everything-Gay Goggles, will criticize the ABA without even reading this reasoning.

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