The ABA and United States v. Windsor

ABA Watch August 2013

August 6, 2013

Since 2004, the American Bar Association has formally opposed federal actions that ban or limit same-sex marriages.  The ABA has consistently advocated same-sex marriage through government lobbying, public awareness campaigns, education of the legal profession, and amicus curiae briefs.  In 2009 and 2010, the ABA House of Delegates adopted resolutions encouraging the repeal of DOMA and counseling all federal, state, tribal, and local governments to legalize same-sex marriages.

The ABA filed an amicus curiae brief on behalf of Edith Windsor in the recently decided Supreme Court case United States v. Windsor.  The brief explained the effects of Section 3 of DOMA (Defense of Marriage Act), at issue in Windsor, on the legal community.  The brief asserts that restrictions in DOMA hinder lawyers who seek to aid their gay and lesbian clients in attaining access to basic rights.  The brief argues, “Though only 65 words long, Section 3 [of DOMA] is sweeping in its breadth and devastating in its effect.  Section 3 provides that, for purposes of every federal statute, regulation, and administrative ruling, the word ‘marriage’ means ‘only a legal union between one man and one woman,’ and the world ‘spouse’ means ‘only a person of the opposite sex who is a husband or a wife.’”  Legal counsel advised the Court that the implications of DOMA make it increasingly difficult for attorneys to help clients adequately plan in legal areas pertaining their families’ futures, such as inheritance, trust funds, medical issues, and child custody.  The brief suggests that gay and lesbian households must often devote considerable time and expense to navigate the legal issues and complications that a heterosexual couple would never encounter.

The ABA brief cited Zablocki v. Redhail as an authority in its reasoning that states should be allowed to determine their own marriage policies and that those policies should not be undermined by actions of the federal government.  The brief contended that even when a state has taken every care to ensure the complete equality of all married couples, regardless of sex or sexual orientation, the definitions of marriage in Section 3 of DOMA prevent true equality from being achieved.  The brief highlights five areas in which Section 3 causes unreasonable burdens to be placed on gay and lesbian couples – healthcare, retirement planning, immigration, military benefits, and taxes.  The brief asserts that Section 3 singles out a class of people for discrimination without a compelling, substantial, or even rational government interest. 

After the Court announced a 5-4 decision in favor of Edith Windsor, ABA President Laurel Bellows released a press statement.  She hailed the decision as “a historic milestone in America’s quest for equal protection for all.”  Bellows reaffirmed the ABA’s commitment to marriage equality for gay and lesbian couples, declaring same-sex marriage to be a constitutional right.  She told reporters, “We have repeatedly advocated for eliminating discrimination against gay and lesbian people.  The rights of all Americans guaranteed under the Constitution are supported with the Court’s decision today.”   

The ABA and United States v. Windsor