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Bar Watch Bulletin February 10, 2004

2004 ABA Midyear Meeting: gay marriage, legislative priorities, House of Delegates round-up
February 10, 2004

GAY MARRIAGE

Recommendation 103D puts the American Bar Association on record as opposing "any federal enactment that would restrict the ability of a state to: (a) prescribe the qualifications for civil marriage between two persons within its jurisdiction; and (b) determine when effect should be given to a civil marriage validly contracted between two persons under the laws of another jurisdiction." The Recommendation is a direct response to the proposed Federal Marriage Amendment, which declares that marriage shall only consist of a union between a man and a woman and which precludes courts from construing any law so as to extend the privileges and benefits of marriage beyond heterosexual couples. Though the proposed constitutional amendment does permit state legislatures to create civil unions or domestic partnerships, the sponsors of 103D do not believe this gives the states sufficient latitude, and open the Recommendation's text by declaring that the purpose of their proposal is "to preserve the authority of the states to regulate marriage under our federal system…."

Recommendation 103D was the only proposal about which the ABA Board of Governors decided to provide its views to the House of Delegates. The Board recommended that the proposal be approved.

The Resolution passed unanimously.

 

AMICUS BRIEF ACTIVITY

The Board of Governors announced today that it approved the request of the Individual Rights Section to file an amicus brief in the Supreme Court case of Tennessee v. Lane. This case involves the question whether Congress had the constitutional authority to require states to pay money damages for violations of Title II of the ADA.


ABA LEGISLATIVE AND GOVERNMENTAL PRIORITIES

The Board of Governors announced to the House of Delegates today the following lobbying priorities (some quotes or facts from the accompanying report appear in parentheses):

  • Anti-terrorism and the preservation of due process ("Because congressional leaders from both parties recognize the ABA's expertise in this area, the Association should maintain a leadership role on this issue.")
  • Death penalty moratorium/reform
  • Federal tort laws (Opposes auto liability legislation, medical liability legislation, limits on liability of firearms industry. Supports aspects of asbestos and class action reform legislation.)
  • Funding of US Patent and Trademark Office
  • Immigration ("The ABA supports according legal resident status for farm workers and enhanced labor protections.")
  • Independence of the bar
  • Independence of the judiciary ("Despite all the fury over the filibusters and resulting accusations that each side is sabotaging the process, the Senate has confirmed 68 of the President's 113 nominees this session and the vacancy rate has remained extremely low.")
  • Legal remedies to eliminate discrimination
  • Legal services for the indigent
  • Rule of law-international ("The continuing US war against terrorism and military action in Iraq and Afghanistan raise significant issues of international law that will be addressed by our own government and international bodies such as the United Nations….Further, there are several treaties the US has yet to ratify that the ABA supports. These include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Criminal Court (ICC), the Convention on the Rights of the Child (CRC), and the Convention on the Law of the Sea.
  • Student loan forgiveness
  • Tax simplification


Other House of Delegates Resolutions:

Custodial Interrogation of Crime Suspects - The House unanimously passed Resolution 8A, which "urges law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precinct, courthouses, detention centers and other place where suspects are held for questioning, or where videotaping is impractical to audiotape the entirety of such interrogations and urges legislatures and/or courts to enact laws or rules of procedure for this requirement."

The Legal Status of Puerto Ricans - The House postponed indefinitely Resolution 8B, which recommended "that the United States Congress adopt and the President sign, legislation that affords the four million U.S. citizens residing in Puerto Rico a process that defines the non-territorial options that are available to the people f Puerto Rico and that authorizes a federal referendum on the Island that enables them to make an informed decision on a permanent legal status for Puerto Rico." Proponents stated that "Puerto Ricans can pick up a rifle for this country but they can't vote on their Commander-in-Chief." Another proponent stated that this resolution was just process-based. "We don't want to make a decision of the status for them. We want to give them the ability to choose that status." A member of the Puerto Rican Bar Association introduced the motion to postpone indefinitely. Referring to his bar association, he stated that "we haven't even been consulted by the ABA on this resolution." Another member of the Puerto Rican Bar Association spoke in favor of the postponement citing that "this decision would have a major impact on our little island. We've been discussing this issue for 100 years and if the House wished to pass this, the ABA will be getting involved in a political issue. If someone from San Francisco was trying to decide your fate, you'd vote against it." The San Francisco Bar Association was sponsoring this resolution.

Disclosure of Judicial Campaign Contributions - the House unanimously passed Resolution 8C, which "encourages states legislatures to enact laws by requiring full and immediate disclosure of all contributions by so-called 'independent campaign committees' that in any way seek to influence voters and the public with regard to any candidate for judicial office." There was no opposition voiced. The delegate presenting the resolution stated that the current system "has created problems in our judicial elections. Disclosure helps citizens understand the background behind advertisements."

Universal Criminal Jurisdiction - The House passed unanimously Resolution 103A. This resolution "enunciates policies that should govern the proper exercise of universal criminal jurisdiction and clarifies the right of a nation to preempt the exercise of such jurisdiction over one or more of its citizens or lawful residents accused of committing an international crime upon declaring its willingness to investigate the allegations and prosecute the accused in accordance with international human rights norms and standards." There was no opposition voiced, though at ABA Section meetings over the weekend numerous concerns were expressed. See the email from the previous day for for further details about this issue.

HIV/AIDS-related initiatives - The House passed unanimously Resolution 103B, which "urges the federal government to implement HIV/AIDS-related initiatives in a manner consistent with international human rights law and science-based prevention, care, support and treatment objectives and endorses the United Nations Declaration of Commitment on HIV/AIDS." There was no opposition.

Guantanamo Bay Jurisdiction - The House postponed indefinitely Resolution 104. Res. 104 "urges courts of the United States to exercise jurisdiction over petitions for habeas corpus filed by foreign nationals challenging the legality of their detention at the U.S. Naval Base leased from Cuba at Guantanamo bay." Opponents to Res. 104 stated simply that "there is no jurisdiction over this issue." Delegate from Florida Neal Sonnet weighed in on the postponement side by stating that "this resolution is ill-advised and ill-timed. We don't want to rely on a two-page report. This issue is very complex. We need to stay out of this fight." Professor Stephen Saltzburg also joined Sonnet by stating "we need to hear what the U.S.'s position is on this matter first. We need more information. The current report left out the part about separation of powers. Congress has a role here. The language in this resolution is badly drafted. When the time is right we will bring you a report that is right."

Jurisdiction over Civil Immigration Matters - The House passed unanimously Resolution 105, which opposed giving state and local authorities the power to "enforce federal civil immigration laws." The delegate introducing this resolution stated that "our state and local enforcement agencies are not equipped to determine who is illegal and who is not illegal. The power to remove aliens is a national power." There was no opposition voiced.

United Nations Democracy Caucus - The House unanimously passed Resolution 106, which supports "the creation of a United Nations Democracy Caucus within the UN framework to work towards the strengthening of democracy, human rights and the rule of law throughout the UN system." The delegate who presented this resolution stated that "the reason that there were only two other countries joining the Unites States in opposition to Libya's chairing of the Human Rights Commission is that there wasn't a strong block of democratic nations. This caucus would seek to create that strong block."

School Violence Prevention Education - The House unanimously passed Resolution 109. This resolution urges the adoption of legislation that "promotes school violence prevention education, instruction, awareness training and programs for children, parents, teachers and school administrators and encourages lawyers to support school violence prevention education in schools and community settings."

Mandatory Racial and Ethnic CLE - The House unanimously passed resolution 110, which would requite attorneys to "complete as part of their mandatory continuing legal education those programs related to racial and ethnic diversity and the elimination of bias in the profession." Consult our latest issue of ABA WATCH for details relating to this resolution and the underlying issue.

Increased Funding for Public Mental Health Systems - The House passed unanimously Resolution 116. This resolution seeks to address problems "presented by the large number of adults with mental illness and juveniles with mental or emotional disorders who come into contact with the criminal and juvenile justice systems, and supports increased funding for public mental health systems."