August 11, 2009


Resolution to Repeal the Federal Defense of Marriage Act Adopted During ABA's House of Delegates Meeting

The New York State Bar Association co-sponsored an American Bar Association resolution urging Congress to repeal part of the federal Defense of Marriage Act (DOMA). The ABA's House of Delegates approved the resolution during the ABA's Annual Meeting held earlier this month in Chicago.

Noting that current federal law imposes unfair and inequitable burdens on legally married same-sex couples and their children by defining the words "marriage" and "spouse" to preclude recognition of these unions, the adopted resolution seeks to restore the traditional authority of the states, territories and tribal governments to determine who may marry within their jurisdictions.  Recognition of marriage has always been a state function, not a federal function.  In cases other than same-sex marriage, the federal government recognizes a couple as married if their state does.  The Defense of Marriage Act usurps a state function by excluding couples who have valid marriages from having their marriages recognized.

"The State Bar's co-sponsorship of this resolution represents our continuing efforts to ensure that same-sex couples are guaranteed equal rights," said State Bar President Michael E. Getnick (Getnick, Livingston, Atkinson & Priore, LLP of Utica and of counsel to Getnick & Getnick of New York City).  "We fully support same-sex marriage on the State level and our support of this resolution furthers our goal of removing federal restrictions that deny equal rights to same-sex couples whose marriages are recognized under State law."

The negative impact of the law on these families is far reaching, denying them a broad range of protections including Medicaid and Social Security survivor benefits; family medical leave; disability, dependency and death benefits; family coverage under federal health insurance plans; and the ability to file joint tax returns. Its enactment has deprived thousands of lawfully married couples of a range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty.

In June, the State Bar's House of Delegates adopted a resolution -- including a comprehensive 180-page report prepared by the Special Committee on LGBT People and the Law -- to amend the state's Domestic Relations Law to give same-sex couples the right to marry and to recognize civil marriages that have been contracted elsewhere.

Repealing this section of the Defense of Marriage Act does not require states to permit same-sex marriage.

The 76,000-member New York State Bar Association is the official statewide organization of lawyers in New York and the largest voluntary state bar association in the nation. Founded in 1876, State Bar programs and activities have continuously served the public and improved the justice system for more than 130 years.