If you smelled something burning last week, it may have been the Connecticut Bar Association’s e-mail server. Attorneys flooded the organization’s listservs with their opinions on a proposal that the CBA sign onto an amicus brief opposing the constitutionality of the Defense of Marriage Act.
Many criticized the notion that the CBA dare to weigh in on an issue now being considered in federal courts across America – one almost certain to be decided by the U.S. Supreme Court in the not-so-distant future.
“DOMA is clearly a hot button political issue over which the bar and the public are seriously and contentiously divided,” wrote one CBA member. “The CBA has no business asserting a position on either side.”
As reported in this edition of the Law Tribune, and notwithstanding the clamor, the CBA’s Board of Governors voted overwhelmingly on Aug. 28 to join an amicus brief being prepared by Gay & Lesbian Advocates & Defenders for a case before the Second Circuit Court of Appeals. The Connecticut Bar Association — and specifically the officers who championed this issue — should be commended for backing the noble words in the organization’s constitution with tangible action.
More on that in a minute. For in all the hubbub surrounding the CBA’s decision, I have heard very little discussion of what DOMA actually does. The Defense of Marriage Act defines marriage for federal purposes as between a man and a woman, prohibits the federal government from recognizing same-sex marriages, and purports to relieve states from their responsibilities under the Full Faith and Credit Clause to recognize same-sex marriages performed in other states.
The result is to foist myriad penalties — financial and otherwise — on a minority class of Americans, gays and lesbians married under valid state laws. There are estate tax penalties. Gay spouses are not entitled to social security survivor benefits. Federal employees in gay marriages may not put their spouses on their health care plans. A gay immigrant who marries an American does not qualify for a green card. These are but a few of the many punishments and indignities that DOMA casually inflicts.
Among the first words in the CBA’s constitution are these: “The purposes of this Association shall be to promote the public interest through the advancement of justice and the protection of liberty …” In declaring its support for gay Americans to marry whom they choose without enduring unjust penalties, the CBA lived up to its mission statement.
Expect more state and regional bar associations to follow. Make no mistake – marriage equality and gay rights are the civil rights issues of this generation. And both political and social acceptance of gay marriage will only grow. Polls demonstrate that support for marriage equality is gaining momentum; indeed, the demographic data show that younger Americans favor gay marriage rights by a wide margin. But that may understandably be small comfort to the millions of gay, lesbian, bisexual and transgender Americans who today live under regimes of discriminatory federal and state laws.
Now — as where there has been injustice in the past — it is easy to point fingers at the voices loudest and most hostile to equality. The Bull Connors, the Rick Santorums. But responsibility must also be borne by bystanders who allow discrimination to persist without complaint because they would rather not involve themselves in “controversial” issues. It’s not just the driver who orders a tired black lady to the back of the bus. It’s all the white folks, happy to sit comfortably up front, avoiding eye contact, hoping nobody makes a scene.
The CBA’s amicus brief proposal — and the subsequent furor — made a scene. And I’m glad for it. Because as long as the federal government persists in denying a minority class of Americans equal protection of the law, nobody on the bus – and especially not my fellow members of the bar – should be sitting comfortably. •