ABA amicus brief argues 14th Amendment requires states to license same-sex marriages

CHICAGO, March 4, 2015 — The American Bar Association today filed an amicus brief in the U.S. Supreme Court, urging the justices to rule that the Equal Protection Clause of the Fourteenth Amendment requires a state to license a marriage between two people of the same sex.

The ABA filed its brief in support of petitioners in two cases, DeBoer v. Snyder, and Bourke v. Beshear, in which the Supreme Court granted writs of certiorari to the U.S. Court of Appeals for the Sixth Circuit. These cases and two other cases from the Sixth Circuit were consolidated by the Supreme Court for review of two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? No date for oral argument has been set.

The ABA brief addresses only the first question, and is based on ABA policies adopted since at least 1973 that have continuously advocated for the elimination of discrimination based on sexual orientation, including discrimination in family law matters. In 2010, the ABA adopted policy specifically urging the elimination of legal barriers to same-sex marriage.

"ABA members who represent same-sex couples know from experience the numerous obstacles same-sex couples face in ordering their affairs and providing security for themselves and their children in the most basic aspects of life: parenting, dealing with sickness and old age, paying taxes, passing on a legacy to their heirs, and the myriad other legal and practical issues," the ABA amicus brief states. "Although lawyers can sometimes counsel their clients on ways to avoid or limit the effects of [marriage bans], they know from experience that no legal 'work-around' can cure the discriminatory effects that necessarily result when a state denies formal recognition of a same-sex couple's commitment through marriage."

In addition to discussing these issues, the brief contains an appendix that highlights three areas in which highlights three areas in which rights are granted through marriage in the 27 states in which marriage bans are being contested in litigation, or in which they were contested through denial of certiorari by the Supreme Court. The appendix also demonstrates the importance of marriage in these states by listing the number of statutory and state constitutional provisions that reference spousal status in each state, which total more than 17,000 across the 27 states.

With nearly 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement on line. Follow the latest ABA news at www.ambar.org/news and on Twitter @ABANews.