Bar Watch Bulletin March 2004

Civil Unions, Liability, Flag Amendment

March 1, 2004

--Dennis Archer submitted a statement to the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property regarding S.J. Res. 26. This resolution proposes a constitutional amendment restricting the definition of marriage to a union of a man and a woman. Archer expressed the ABA's opposition to the resolution "because it would usurp the traditional authority of each state to determine who may enter into civil marriage and to determine when effect should be given to a civil marriage validly contracted between two persons under the laws of another jurisdiction."

The statement comes on the heels of an ABA-adopted a resolution at its February 2004 Midyear meeting recommending that states, not the federal government, decide whether to allow gay marriage. In the statement, Archer outlined how states have historically "served as the laboratory of experimentation in crafting ways to respond to changing societal views on issues involving minority groups, including laws respecting the rights of gay and lesbian men and women." Archer noted that several states have addressed the issue of civil unions and gay marriage in recent years, including Hawaii, Alaska, Vermont, and most recently, Massachusetts. A wide range of policies has been adopted, from civil unions (which, Archer notes, do not grant any of the 1,049 federally conferred rights, benefits, and responsibilities of marriage) to prohibition of same-sex unions.

According to Archer, the "variations among the state laws governing same-sex unions have increased each state's exposure to new ideas, provided the opportunity to examine the effect different laws have on society, and provided guidance to other states that seek to modify their laws to reflect changing societal views of their residents."

Archer states that the ABA believes "a constitutional amendment in this arena would be counterproductive and harmful to the democratic values enshrined in our constitution." He maintains, "In the more than two centuries since the Constitution was adopted, the freedoms it guarantees have only been expanded and reinforced. We must not as a Nation go backward by writing into our cherished national charter, for the first time, a provision denying rights to one group of Americans. The proposed amendment is antithetical to the hollowed bedrock principles on which our government was founded and should be soundly rejected."

Federal, rather than state-adopted, policies that the ABA has supported include the right to abortion, "do-not-email" legislation, gun control, and the right to the use of medical marijuana.

On other proposed Constitutional amendments, the ABA has previously supported the Equal Rights Amendment, while opposing amendments to allow prayer in schools and flag burning (see below).

--On March 10, Dennis Archer testified before the Senate Judiciary Committee against a flag burning amendment. He stated: "The Senate has considered and rejected similar constitutional amendments on several occasions over the past 14 years. We urge you again to resist the emotional appeals of those who argue that protecting the flag from desecration through adoption of a constitutional amendment is an act of patriotism…The proposed amendment, which would curtail the protection of individual liberties afforded by the Bill of Rights (a document that has not been changed in its 213 years of existence), should be rejected as bad constitutional policy and bad law."

According to Archer, "this proposed amendment diminishes the very freedoms the flag represents.... Rather than protecting patriotism, this amendment would dishonor it."

In 1989, the ABA adopted a resolution opposing a constitutional amendment against flag burning.

--ABA President Dennis Archer sent a strongly-worded open letter to the U.S. Chamber of Commerce, rebuking its campaign for comprehensive legal reform. The campaign, by the U.S. Chamber's Institute for Legal Reform, recently promoted its annual State Liability Systems Ranking Study. The poll of senior attorneys, conducted in conjunction with Harris Interactive, found a wide gap between the best and worst states in legal fairness.

Archer wrote: "Why can't the U.S. Chamber of Commerce be honest with the American people? Once again, you've camouflaged a campaign against judges in fabricated figures and a phony opinion poll, shifting responsibility for U.S. job loss and the nation's financial woes from your own members to the legal system that serves ordinary people." Archer continued to criticize claims by the Chamber that lawsuit excesses cost Americans $809/person per year as "patently untrue." (In a separate statement, this amount was described by Archer as "voodoo math." Archer also stated in the same statement that the Chamber's agenda was "radical" in this instance.)

Archer accused the Chamber of setting out to "eviscerate the legal system and the accountability that it imposes on business." According to Archer, "Waging war on the judges who protect the rights and safety of Americans is waging war on your own consumer base."

Archer concluded: "Is a sophist victory so important that truth and honor do not matter in this argument?"

Incidentally, Harris Interactive has conducted a number of polls for the ABA on topics such as Supreme Court rulings in education and elections and judicial impartiality.

Archer's letter can be found here: http://www.abanet.org/media/statementsletters/chamberopenletter.pdf. The U.S. Chamber's study can be found here: http://www.legalreformnow.com/pdfs/ILR Harris Poll.pdf.