Connecticut Bar Association leaders have voted in favor of joining amicus briefs in support of federal benefits for same-sex couples, a decision that has drawn mixed reactions from CBA members.
The amicus brief will be first filed in the appeal of a recently decided New York case to the U.S. Court of Appeals for the Second Circuit. Back in July, U.S. District Judge Vanessa Bryant, of Connecticut, ruled in Pederson v. Office of Personnel Management that the Defense of Marriage Act violated the 14th Amendment right to equal protection. That followed the similar decision in New York in a case brought by Edie Windsor, who filed a lawsuit because she was denied benefits when her wife, Thea Spyer, died.
The CBA voted to join amicus briefs in either or both the Windor v. United States case, which has been appealed to the Second Circuit, and Pederson, if an appeal is filed in the second circuit. The Pederson case has been appealed directly to the Supreme Court, which will decide whether to hear it. If the high court doesn’t take the appeal, then it will most likely go the Second Circuit. No one has yet asked the CBA to join in an amicus brief if Supreme court takes the the case.
“Any such request would be a matter for further decision by the CBA,” Barry Hawkins, the CBA president said.
“My personal, very preliminary view is that if Pederson is taken upon appeal by the U.S. Supreme Court, that would be a separate amicus procedure,” Hawkins said. “If asked, the CBA would then have to decide again whether to participate in that forum as well.”
The Obama Administration has decided not to defend DOMA, parts of which have now been ruled unconstitutional by three separate federal courts. However, Republicans in the U.S. House of Representatives have hired private counsel to defend the law. It was those attorneys who filed a notice of appeal to the Second Circuit.
By a vote of 12 to 4, with one abstaining, the CBA’s Board of Governors on Tuesday night voted to sign onto briefs that affirm the trial courts’ decisions. Those briefs are being prepared by the Civil Rights Project of Gay & Lesbian Advocates & Defenders (GLAD), a Boston-based group that also lobbied for same-sex marriage in Connecticut.
The decision to join in the amicus was made following some controversy, as members of the bar association disagreed on whether the group should take a position that has social and political implications. Hawkins said “it’s the right thing to do and this is the right time to do it.”
“This is the civil rights question of our decade,” Hawkins told members of the board of governors before the vote was held. “It is not a matter of policy, politics or morals but a matter of core principals of constitutional law.”
At the heart of the amicus, is a request that the court give “protection of heightened equal protection scrutiny” to gay and lesbian couples, as it does based on “race, sex, illegitimacy, religion, alienage and national origin.”
The matter could end up before the U.S. Supreme Court.
Fast Action Defended
The proposal was circulated via e-mail late last week to many, but not all, CBA members. The proposal generated a heated online debate via the CBA’s listserv.
Opponents of joining in the amicus, including one lawyer who said he would quit if the amicus gets signed, were critical of how quickly the Board of Governors planned to act on the proposal. Hawkins, however, insisted the accelerated timing schedule was in accordance with the organization’s rules for making decisions in the time between formal meetings.
Some said they didn’t feel a professional organization should get involved “in speaking for” the personal views of its members. As attorney Robert Mitchell, of Mitchell & Sheahan in Stratford, put in his thoughts in an e-mail to fellow CBA Labor and Employment Section members: “I do not want the CBA speaking for me personally on an issue that I have not fully examined myself.”
Hawkins understood the critics, but disagreed.
“There are some who feel the CBA should be a trade organization and should not speak out on matters of public interest,” he said. “I understand that interest and I have no problem with them articulating that position. But that is why the CBA’s policy gets decided by different groups. In this case, we have a Board of Governors representing 17 different districts.”