The Federalist Society

Bar Watch Bulletin for Tuesday, August 10

House of Delegates, ABA President-Elect

August 10, 2010

The ABA House of Delegates met again Tuesday morning to wrap up its deliberation for the 2010 Annual Meeting.  The policies adopted concerned same-sex marriage, the Comprehensive Nuclear Test Ban Treaty, and firearm microstamping technology. 

What follows is a summary of what was discussed. 

Recommendation 111, sponsored by the Section of Individual Rights and Responsibilities (IRI) and 26 cosponsors, “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.”  No salmon slips were held in opposition, and the rules of limited debate applied.

Past ABA Chairman Robert Grey introduced the resolution.  According to Grey, “[T]he denial of civil marriage to same-sex couples harms them and their families, excluding them from critical legal protections that married persons take for granted.   Let us be clear: this is a legal issue.  It is also important to recognize that our colleagues of same-sex relationships deserve the same protections that we all have enjoyed under the founding documents of this country.”  He compared the rights of same-sex couples to women, the disabled, and members of different races.  “Same-sex relationships are clear, they exist, and they are here to stay,” stated Grey.  He concluded, “We can choose to stand on the sidelines, or we can be on the field.  There were times when this Association was on the sidelines. Today we should be on the field.” 

ABA president Carolyn Lamm also spoke in favor of the recommendation.  She reminded the House that in 2004, the ABA opposed a constitutional amendment opposing same-sex marriage, and in 2009 the ABA urged repeal of Section 3 of the Defense of Marriage Act (DOMA).  According to Lamm, this recommendation is not inconsistently urging the override of state decision-making on these issues, but to persuade states to exercise their authority that accords equal treatment to same sex-couples and families. 

Les Jacobs of the Ohio State Bar spoke in opposition.  He stated, “I have reluctantly concluded that silence on an issue of political correctness is cowardice, and that we owe it to this House to avoid action that would jeopardize the welfare of the Association.  So I rise to urge restraint, not that you pocket your views or cease to advocate…But I personally believe it could be suicidal for the House to defer to an impulse to impose social and cultural values on the entire membership of the ABA, rather than to endeavor to reflect some clear consensus of the bar.”  An organization that purports to speak for all lawyers should be careful to speak on this issue.  He challenged individual House members to consider their constituents’ views on this issue.  He did not believe this issue received the consensus of the bar, and Jacobs urged the House to table the recommendation.

James Silkenat of New York challenged the motion to table the recommendation according to Robert’s Rules of Order.  Jacobs responded that the House should consider the balance of its agenda and the House should not be continuing the debate at this time.  Silkenat asked why this was urgent, and Jacobs responded, “Everything is urgent, Mr. Silkenat.”  Grey stated there was no emergency or exigent circumstances that would require the House to table this recommendation.  The motion to table was ruled out of order.

Tommy Wells, past ABA president, spoke in favor of the recommendation: “Eliminating legal barriers to civil marriage…does not redefine marriage.”   He asserted that same-sex couples want to share in the legal blessings of marriage.  This resolution will strengthen, not threaten, marriage.  He also emphasized that this resolution would not threaten religious liberties, because religious groups could still determine who they wished to marry.  Wells concluded, “This is a matter of simple civil justice, nothing more and nothing less.” 

Steve Zack also spoke in favor of the resolution.  Zack queried: “Why would anyone in this country not want two people who love each not to enjoy the blessings of marriage and full protection of law?  Would any one of us want our marriages that we hold so sacred be called civil unions?   Aren’t all Americans entitled to the same right?  Our fundamental purpose of being is to reject and deny discrimination anywhere and anytime.  Please vote for this recommendation.”

Other salmon slips were identified as being from past and president ABA leaders including Laurel Bellows, Neal Sonnett, James Silkenat, Steve Saltzburg, Bill Anderson, Martha Barnett, Karen Mathis, and Michael Greco, among many others. 

The resolution was adopted with weak opposition.

Recommendation 107A, sponsored by the Sections of International Law, Individual Rights and Responsibilities, and Health Law, “urges the United States to ratify the Comprehensive Nuclear Test Ban Treaty, which is an international agreement designed to create a permanent, global, legally-binding, and all-encompassing prohibition on any nuclear explosions.”  The rules of limited debate applied.   Michael Byowitz, a delegate from the Section of International Law, spoke on behalf of the recommendation.  Byowitz stated that to address the threat of nuclear weapons, the U.S. and other countries have tried to end the threat of nuclear proliferation through a number of treaties.  These treaties promote the rule of law.  Treaties are like any other contract, and there is a requirement to act in good faith.  This treaty is awaiting ratification in the United States, and not ratifying it would not be good faith compliance.  No one spoke in opposition to the recommendation.  The resolution was adopted with some votes in opposition. 

Recommendation 11-2 considered an ABA constitutional amendment to provide each American territory a seat in the House of Delegates.  American Samoa sought the seat, and the request was the subject of considerable debate.  The amendment failed yesterday by three votes, but the House reconsidered the amendment on Tuesday.  Proponents thought in the spirit of inclusion, the territory should receive a seat.  Opponents thought the piecemeal approach was not the best way to approach the debate.  The amendment (which needed 2/3 of the vote) failed again, this time by sixteen votes.

Recommendation 105, sponsored by the Standing Committee on Legal and Indigent Defendants and 31 cosponsors, urged adoption of the black letter and commentary “ABA Basic Principles of a Right to Counsel in Civil Legal Proceedings” which attempts to state “the fundamental requirements for effectively providing representation in certain high-priority civil proceedings to persons unable to afford an attorney.”  These principles were directed at the administrators of the “Civil Gideon” right to counsel.  The recommendation was adopted. 

The Commission on Youth at Risk and seven cosponsors sponsored Recommendation 109A, which urged “state, local, territorial, and tribal governments to provide legal counsel to children and/or youth at all stages of juvenile status offence proceedings as a matter of right and public expense.”  Laura Farber, the Commission chair, noted that youth who are brought to court who have run away or skipped school often proceed without legal representation.  This needed to be remedied.  The recommendation was adopted.  

Recommendation 114, sponsored by the Standing Committee on Election Law and two cosponsors, “supports state and federal initiatives to modernize and improve voter registration practices, databases, and networks and urges an independent technical and security assessment of statewide voter registration databases.”  The recommendation was adopted. 

Recommendation 115, sponsored by the Standing Committee on Gun Violence and 11 cosponsors, endorses “laws requiring that all newly-manufacturing semi-automatic pistols be fitted with microstamping technology which would enable law enforcement to identify the serial number of the pistol and hence the first known purchaser of a weapon used in a crime.”  The recommendation was adopted.     

Recommendation 116, sponsored by the Task Force on Gatekeeper Regulation and the Profession and five cosponsors, supports “efforts to combat money laundering and terrorist financing and observes that voluntary, risk-based and updated guidance would assist legal professionals to avoid money laundering and terrorist financing risks when providing services to clients.”  The Board of Governors considered this report, and it recommended approving the resolution.   The resolution was adopted. 

Recommendation 118, which recommended a new dues structure, was withdrawn.  The Board of Governors expressed that there would be “an unquestionable and short-term revenue impact” if this recommendation was adopted.   

Recommendation 300, sponsored by the Sections of Business Law, International Law, and Real Property, “urges Congress to enact laws that provide for a Startup Visa, whereby foreign citizens forming businesses are provided a mechanism under which they can enter the United States and obtain permanent residency to build such businesses.”  The recommendation was adopted 

Recommendation 301, sponsored by the Section of Intellectual Property Law and cosponsored by the Section of International Law, “supports the principle that under the Copyright Clause of the Constitution, Congress has the power to implement U.S. obligations under international copyright treaties by restoring copyrights in certain works of foreign origin that have gone into the public domain.”  The U.S. Court of Appeals for the 10th Circuit recently ruled on this issue, and the House should be able to weigh in on the decision should it be appealed to the U.S. Supreme Court.  The recommendation was adopted

Recommendation 302, sponsored by ABA Member Jayne Fleming, “urges the federal government to intensify its efforts to provide adequate food, water, shelter, and physical security to displaced women and children in Haiti.”  Fleming had just returned from Haiti, and she spoke of the dire need for more assistance.  The recommendation was adopted. 

New ABA President-Elect William T. Robinson III

William T. Robinson III, the new ABA President-Elect, addressed the House of Delegates.  He discussed his goals for the year ahead, stating, “My basic concept is to leverage the existing organization in an entrepreneurial way.  Let’s harvest the best ideas from everyone, and support coordinated efforts to make sure what we achieve has the support of everyone.”

Robinson acknowledged the legal profession had been hit hard by the economy and long-term fiscal stability was needed.  He outlined that the ABA should first be skeptical that there is a silver bullet solution to solve challenges.  Second, “we have to be thoughtful” in approaching change.  Third, an integrated approach is needed among all corners of the organized bar.  He asserted, “Lawyers working together can and will make a positive difference.”

Other Notes

• The ABA premiered a new video and announced a new tagline: “The American Bar Association: For Justice and its Champions.”
• Linda A. Klein was announced as the new House of Delegates chair for 2010-12.  Laurel Bellows, past House of Delegates chairman, will be a candidate for president-elect in 2011.
• New ABA Executive Director Jack Rives also spoke on Tuesday.  The ABA staff hopes to increase membership, non-dues revenue, and lower operating expenses.  The budget for the ABA is down.


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