To some members, a vote by the Connecticut Bar Association’s Board of Governors last week to join the legal fight for federal benefits for same-sex couples was a not-to-be-missed opportunity to weigh in, as CBA president Barry Hawkins put it, “the civil rights question of our decade.”
To others, it was an unwelcome step into activism for a bar association that has traditionally avoided taking stands on potentially divisive political issues. “This is a departure,” said attorney John L. Bonee III, of Bonee Weintraub in West Hartford. “The CBA always said, ‘We don’t want to be like the ABA. We don’t want to get involved in social causes and lose members.’”
On Aug. 28, the CBA Board of Governors voted 12 to 4, with one abstention, to join amicus briefs that challenge the constitutionality of the federal Defense of Marriage Act, which limits federal marriage benefits to couples comprised of one man and one woman. The briefs are being filed by the Boston-based Gay & Lesbian Advocates & Defenders (GLAD) first as part of a New York case before the U.S. Court of Appeals for the Second Circuit. A second case from a July ruling from a Connecticut federal judge that parts of DOMA are unconstitutional has been sent to the Supreme Court, which will decide whether to hear it. If the high court doesn’t take the appeal, it will most likely go to the Second Circuit.
On Aug. 15, GLAD lawyer Mary Bonauto asked the CBA to join the amicus briefs supporting the findings of the New York case and the decision by U.S. District Judge Vanessa Bryant in Connecticut. That was followed by a series of e-mails on the briefs’ contents. On Aug. 17, there was a conference call among CBA executive committee members, led by Hawkins. The committee voted afterward to seek formal approval from the Board of Governors.
A board meeting was set for Aug. 28. Meanwhile, Hawkins said, his staff worked to assemble information for CBA leaders. On Monday, Aug. 20, a notice of the special meeting was sent to Board of Governor members and House of Delegate members, and information about the amicus was put on the CBA web site.
The chairs of all sections and committees received an email from a member of Hawkins’ office on Aug. 23, which asked that information about the meeting and amicus decision be shared with all members for review. It was that message, five days ahead of the vote, that launched e-mail debates among dozens of members on CBA listservs.
“I support this 100 percent,” wrote Kate Hsu Hagmann, a New Haven attorney with Bershtein, Volpe & McKeon.
“I do not want the CBA speaking for me personally on an issue that I have not fully examined myself,” wrote Robert Mitchell, of Mitchell & Sheahan in Stratford.
Equal Protection Rights
In June, a federal judge in Manhattan ruled that DOMA violated the rights of a New York woman named Edie Windsor, who filed a lawsuit because she was denied benefits when her wife, Thea Spyer, died. That was followed by a similar decision in July, when Judge 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.
The Pederson lawsuit was filed by six same-sex couples and one widower from Connecticut, Vermont and New Hampshire who challenged DOMA after they were denied federal tax, Social Security and family medical leave benefits.
While the facts differ, the legal issues surrounding equal protection are identical in the two cases. The DOMA opponents want the Second Circuit to give “heightened equal protection scrutiny” to gay and lesbian couples based on their sexual orientation, the same sort of protection the law provides based on “race, sex, illegitimacy, religion, alienage and national origin.”
The Obama Administration has decided not to defend DOMA, parts of which have also been ruled unconstitutional by a Boston federal court. However, Republicans in the U.S. House of Representatives hired private counsel to defend the law. It was those attorneys who filed a notice of appeal to the Second Circuit. Because of the advance age of one of the plaintiffs in Windsor, the case was put on a fast track for briefing deadlines. All amicus had to be filed by Sept. 7.
In addition to the CBA, other Connecticut groups that agreed to join the GLAD amicus briefs to the Second Circuit include the George C. Crawford Bar Association, the Connecticut Hispanic Bar Association and the Connecticut Women’s Education and Legal Fund.
“The CBA got it right,” said Mary Bonauto, the lawyer for GLAD, a group that was instrumental in winning court cases legalizing same-sex marriage in Connecticut and Massachusetts.”For Connecticut citizens, the CBA was right in calling out how DOMA unjustifiably singles out the state’s married same-sex couples for different and disadvantageous treatment under numerous federal laws and programs.”
Despite the need for fast action, Hawkins said the discussion among CBA leaders and voting process was “transparent” and done in “strict adherence to the procedural requirements.” Even those on the Board of Governors who voted against the amicus agreed that all of the rules were followed closely.
In a letter to the Board of Governors on Aug.27, Hawkins said he had received about 20 notes from members and committee and section chairs who voiced their various positions. “It’s safe to say this is not a unanimous position and that some members, on both sides of the issue, are very passionate and deeply set in their positions.”
In an interview, Hawkins addressed critics of the CBA participation in the DOMA case.
“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.”
In his letter, Hawkins reminded the group that the CBA had recently sponsored a yearlong series of events and speakers under the theme of “equal protection.” Those speakers “intellectually and academically espoused the principals” of the position that gay and lesbian couples are entitled to be recognized as a protected class based on sexual orientation.
“If the organized bar is to mean anything other than being the sponsor of nice sounding lectures on Equal Protection,” he wrote, “this is our opportunity to protect the rights of fellow citizens who have been denied and are being denied substantive rights, strictly as the result of sexual orientation.”
Attorney Lenny Isaac, of Isaac Law Offices in Waterbury and West Hartford, said he “tries not to voice any personal feelings or choices” when he serves as chair of the CBA litigation section. He said the “real story” was how the CBA “followed an established process that allowed us to take a position as an organization.”
“Too many public serving bodies become polarized and crippled by the differing views of the members of those bodies,” said Isaac. “I am proud of our leaders, and of our members, because we have shown that it is indeed possible to function as a group even when people may not agree.”
Among those who voted in favor of the CBA joining the amicus, was Monte Frank, a shareholder at Cohen and Wolf in Danbury and Bridgeport in the commercial and municipal litigation practice. A member of the Board of Governors since 2008, he was proud to participate in such an important issue.
“I hope when our children look back on these decisions, they will look at this the same way our parents and grandparents look at decisions like Brown vs. [Board of] Education,” he said. “We needed to stand up with our lesbian and gay friends and brothers and make sure they are provided the same rights under the law that heterosexual persons are.”
CBA member Anthony Marino, vice president and corporate counsel of Oc Imagistics in Trumbull, put it more succinctly. “I’m proud to live in such an accepting and tolerant state. I fully support the overturn of DOMA and the CBA decision to join in the brief.”
Opponents also had plenty to say. William Dezinno, a general practice lawyer in Meriden, was one of the more vocal opponents on the Board of Governors. Reached after the vote, Dezinno said that he believes that federal rights should apply the same to same sex or heterosexual couples. But he said the term marriage should only be used when referring to “a man and a woman.”
Dezinno said he did not like the way the issue was handled, with the CBA position being approved by a handful of members at a special meeting. “[A meeting of] the House of Delegates could have been called. The House of Delegates is much larger than the Board of Governors and would have represented a much broader area of the districts,” he said.
Another Board of Governors member said he voted “no” because of the rushed process.
“This is a pretty complex issue that engenders a lot of strong feelings on all sides,” said Steven D. Anderson, whose New Britain practice includes personal injury and criminal law. “This is not an issue that snuck up on anybody. I didn’t think it was appropriate to make this kind of decision without the opportunity for the bulk of the organization to weigh in.”
Dezinno plans to propose an amendment to the CBA constitution requiring the larger House of Delegates to vote if a similar event arises in the future. •
“He’s certainly entitled to propose a new amendment to the rules of procedure and change the ground rules for the future,” Hawkins said. “But my job is to apply and to implement the existing rules, not the way somebody might like to change them.”•