RESOLUTION OPPOSING AMENDMENT OF THE UNITED STATES CONSTITUTION TO RESTRICT THE ABILITY OF A STATE TO PRESCRIBE THE QUALIFICATIONS FOR CIVIL MARRIAGE

WHEREAS, a resolution has been introduced in the United States Senate, S.J. Res. 26, proposing an amendment to the United States Constitution to restrict the definition of marriage to the union of a man and a woman and to prohibit the states from allowing same-sex couples to enter into civil marriage or be granted the "legal incidents thereof";
 
WHEREAS, the President of the United States has publicly expressed his support for such a Constitutional amendment and has urged Congress to ratify it;
 
WHEREAS, the Constitution is the nation's foundational charter and provides for the overall framework of government and for the protection of rights of individuals, and should not be amended lightly or frequently, but rather only on "great and extraordinary occasions" (Madison, Federalist 49);
 
WHEREAS, the right to regulate marriage and other family related matters has long been recognized as belonging to the states, see, e.g. Pennoyer v. Neff, 95 U.S. 714 (1877); In Re Burns, 136 U.S. 586 (1890);
 
WHEREAS, the states benefit from what Justice Brandeis described over 70 years ago as "one of the happy incidents of the federal system that a single courageous State may...serve as a laboratory; and try novel social...experiments without risk to the rest of the country." Santosky v. Kramer, 455 U.S. 745, 773 (1982) (Rehnquist, J., dissenting) quoting New State Ice Co. V. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting);
 
WHEREAS, the Supreme Court of Massachusetts declared on November 18, 2003 that the state was violating its constitution by denying the benefits of marriage to people of the same sex who wish to marry;
 
WHEREAS, there are numerous laws and ordinances throughout the country granting various benefits to unmarried couples, including Vermont's civil union statute, and domestic partnership laws in California and New Jersey;
 
WHEREAS, the ratification of S.J. 26 would usurp the power of Massachusetts and all other states to interpret their own constitutions in a non-discriminatory manner and revise their marriage laws accordingly, and would also likely prohibit states from extending rights to unmarried couples such as rights of inheritance, hospital visitation, and family medical leave;

WHEREAS, children born to or adopted by unmarried couples benefit from the protections afforded those couples under various state laws and ordinances which increase their financial security, including the right to receive child support, the right to be considered dependents for purposes of receiving insurance benefits, and inheritance rights;
 
WHEREAS, in the more than two centuries since the Constitution was adopted, the freedoms it guarantees have been expanded and reinforced, not restricted;
 
WHEREAS, on February 9, 2004, the American Bar Association passed a Resolution opposing "any federal enactment that would restrict the ability of a state or territory to prescribe the qualifications for civil marriage between two persons within its jurisdiction and determine when effect should be given to a civil marriage validly contracted between two persons under the law of another jurisdiction" and offered testimony, through its president, Dennis W. Archer, and the Chair of its Family Law Section, Phyllis Bossin, to the U.S. Senate Judiciary Committee vigorously opposing S.J. Res. 26.
 
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes the ratification of S.J. Res. 26 and any other proposed amendment to the United States Constitution or federal enactment which would restrict the ability of a state or territory to prescribe the qualifications for civil marriage between two persons within its jurisdiction and determine when effect should be given to a civil marriage validly contracted between two persons under the law of another jurisdiction.
 
AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor or his designee to communicate the content of this resolution to members of Congress, state and local public officials, other bar associations, and the public at large and to take such other action as may be appropriate.
 
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: JUNE 24, 2004