ABA Testifies Against Federal Marriage Amendment

May 1, 2004

The American Bar Association today called on Congress to reject any constitutional amendment that would restrict the ability of states to establish their own qualifications for civil marriage or to determine the validity of marriages legally performed in other states.

In testimony before the Senate Judiciary Committee, Phyllis Bossin, chair of the ABASection of Family Law, noted that while the ABA has not taken a position either favoring or opposing laws allowing same-sex couples to enter into civil marriages, the ABA opposed efforts to preclude states from adopting such laws if they choose to do so. This authority has resided with the states since the founding of our country, enabling the courts and legislatures to fashion rules that are well-suited to local needs and creating varied approaches that benefit the nation as a whole, she said.

As evidence that this system works, Bossin pointed out that, under the current arrangement, 38 states have adopted legislation prohibiting marriages between same-sex couples or providing that such marriages shall not be recognized, while 10 others enacted laws enabling same-sex couples to contract civil unions or civil marriages.

Variations among the states' laws governing same-sex unions have provided the opportunity for states to examine the effect of different laws on society and provide guidance to other states that seek to modify their laws to reflect changing views of their residents, said Bossin. A constitutional amendment would offer none of these benefits. Instead, it would freeze the law and usurp the historic responsibility of the states in this area of law.

Bossin also noted that the proposed amendment would prohibit states from extending to unmarried couples legal protections comparable to those accorded to married spouses. As an example of the impact the denial of such protections would have, Bossin noted the potential consequences for millions of American children currently being raised by same-sex couples.

The states should have the flexibility to confer legal recognition on the families in which these children are being raised, she said. Without a legal relationship to both of their functional parents, these children may not be entitled to child support from the non-legal parent; they are not entitled to inherit through the non-legal parent in the absence of a will; they may not be entitled to survivor benefits, they may be prevented from ever seeing this parent, should the parents separate or the biological parent die. The states should be permitted to enact laws and policies they deem appropriate to protect these children.

Bossin urged members of Congress to reject S. J. Res. 26 or any other amendment that would usurp the traditional authority of each state to determine who may enter into civil marriage and when effect should be given to a marriage validly contracted between two persons under the laws of another jurisdiction.