Spring 2004

Legislative Update

Same-Sex Marriage Continues to be Debated; Racial Profiling, HIV/AIDS, and Other Individual Rights Issues Also on Legislative Agenda

In recent weeks, the House and Senate debated legislation in several areas of interest to the Section, including "same-sex" marriage, equal protection of the law under the 14th amendment for "unborn persons," racial profiling, AIDS, and others.

In November 2003, Sen. Allard (R-CO) introduced SJ Res 26, a joint resolution proposing a constitutional amendment defining marriage as only between a man and a woman. President Bush announced his support for the proposal following a Massachusetts Supreme Judicial Court ruling granting marriage rights to same-sex couples. Since then, various cities across the country, including San Francisco, Portland, and others, have been issuing marriage licenses to same-sex couples, some possibly in defiance of state law. On Mar. 22, supporters of the amendment in Congress proposed to modify the draft amendment to give state legislatures the right to recognize civil unions between same-sex couples. (At the ABA 2004 Midyear Meeting, the ABA adopted Section-sponsored policy opposing any federal enactment that would restrict the ability of a state to prescribe the qualifications for civil marriage between two persons within its jurisdiction or to determine when effect should be given to a civil marriage validly contracted between two persons under the laws of another jurisdiction.

On Mar. 23, the Senate Judiciary Committee held a hearing on the proposed constitutional amendment to prohibit same-sex marriages. Phyllis G. Bossin, Chair of the ABA Section of Family Law, testified that the ABA opposed the amendment because it would usurp the traditional authority of states to make marriage policy. She said that even the altered language as introduced on Mar. 22, "would limit the ability of states to fashion their own response to meet the needs of residents in their states." She also maintained that such an amendment could nullify existing local ordinances, such as Vermont's civil union program, California's domestic partnership law, and others that extend rights and benefits to same-sex couples.

Civil Rights/Constitutional Law

On Apr. 1, President Bush signed into law HR 1997, the Unborn Victims of Violence Act of 2004, to amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes. The law makes it a separate offense to harm the fetus in a federal crime committed against a pregnant woman. Prior to voting for the bill, the Senate rejected on a vote of 50 to 49 an amendment by Sen. Feinstein (D-CA) that would have allowed criminals to be charged with a second offense for harming a fetus or terminating a woman's pregnancy without granting new legal status to the fetus.

On Mar. 10, Sen. Inhofe (R-OK) introduced S 2190, to implement equal protection under the 14th Amendment for preborn human persons. The bill was referred to the Committee on the Judiciary.

On Feb. 12, Sen. Kennedy (D-MA) introduced S 2088, the Civil Rights Act of 2004, to restore, reaffirm, and reconcile legal rights and remedies under civil rights statutes. The bill addresss equal pay for working women, enhance protections against discrimination in federally funded services, and calls for safeguards for students who are harassed because of their national origin, gender, race, or a disability. The bill was referred to the Committee on Health, Education, Labor and Pensions. A similar bill was introduced in the House.

On Mar. 25, Rep. Engel (D-NY) introduced H Con Res 396, supporting the goals and ideals of the Day of Silence and encouraging units of local government, states and school districts to protect lesbian, gay, bisexual and transgender students, teachers and school employees from discrimination and harassment. The bill was referred to the Committees on Education and the Workforce and the Judiciary.

On Mar. 23, Rep. Gringey (R-GA) introduced HR 4013, to prohibit the approval of any drug that infringes the right to life. The bill was referred to the Committee on Energy and Commerce.

On Feb. 26, Sen. Feingold (D-WI) introduced S 2132, to prohibit racial profiling. The bill was referred to the Committee on the Judiciary. A similar bill was introduced in the House. On Feb. 25, Sen. Voinovich (R-OH) introduced S 2112, to prohibit racial profiling by federal, state and local law enforcement agencies. This bill also was referred to the Committee on the Judiciary.

On Feb. 12, Sen. Graham (D-FL) introduced S 2082, to restore, reaffirm, and reconcile legal rights and remedies under civil rights statutes. The bill was referred to the Committee on Health, Education, Labor and Pensions. A similar bill was introduced in the House by Rep. John Lewis (D-GA).

On Jan. 28, Rep. Payne (D-NJ) introduced H Res 508, a resolution recognizing and honoring the 50th anniversary of the U.S. Supreme Court decision in Brown v. Board of Education. The bill was referred to the Committee on the Judiciary.

On Jan. 21, Sen. Hagel (R-NE) introduced S 2010, to strengthen national security and U.S. borders and establish earned adjustment under U.S. immigration laws. The bill was referred to the Committee on the Judiciary.

On Jan. 21, Rep. Nadler (D-NY) introduced HR 3719, to prohibit, consistent with Roe v. Wade, the interference by the government with a woman's right to choose to bear a child or terminate a pregnancy. The bill was referred to the Committee on the Judiciary. A similar bill was introduced in the Senate. (In 1992, the ABA adopted Section-sponsored policy opposing state or federal legislation which restricts the rights of a woman to choose to terminate a pregnancy (i) before fetal viability; or (ii) thereafter, if such termination is necessary to protect the life or health of the woman.)

On Jan. 20, Rep. Maloney (D-NY) introduced HR 3703, to protect the civil rights of victims of gender-motivated violence, to promote public safety and health, and to regulate activities affecting interstate commerce by creating employer liability for negligent conduct that results in an individual's committing a gender-motivated crime of violence against another individual on premises controlled by the employer. The bill was referred to the Committees on Education and the Workforce and on Judiciary.

On Jan. 20, Rep. Andrews (D-NJ) introduced HR 3701, to extend the provisions governing nonimmigrant status for spouses and children of permanent resident aliens awaiting the availability of an immigrant visa. The bill was referred to the House Committee on the Judiciary.

Disability Law

On Mar. 16, Rep. Balance (D-NC) introduced HR 3975, to authorize states, in the event of inadequate federal funding under the Individuals with Disabilities Education Act, to waive certain requirements of the Elementary and Secondary Education Act of 1965. The bill was referred to the Committee on Education and the Workforce.

AIDS Law

On Feb. 26, Rep. Pelosi (D-CA) introduced HR 3859, to permit states the option to provide Medicaid coverage for low-income individuals infected with HIV. The bill was referred to the Committee on Energy and Commerce.

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