Outside the Beltway

Bankruptcy Court Declares DOMA Unconstitutional

A very provocative decision on same-sex marriage from an unlikely source.

Doug Mataconis · Tuesday, June 14, 2011 · 10 comments

Twenty of the twenty-five judges who sit on the United States Bankruptcy Court for the Central District of California have issued an opinion declaring Section 3 of the Defense of Marriage Act unconstitutional because it prevents a legally married same-sex couple from filing a joint bankruptcy petition:

This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code). Like many struggling families during these difficult economic times, Gene Balas and Carlos Morales (Debtors), filed a joint chapter 13 petition on February 24, 2011. Although the Debtors were legally married to each other in California on August 20, 2008, and remain married today, the United States Trustee (sometimes referred to simply as “trustee”) moved to dismiss this case pursuant to Bankruptcy Code § 1307(c) (Motion to Dismiss), asserting that the Debtors are ineligible to file a joint petition based on Bankruptcy Code § 302(a) because the Debtors are two males

(…)

The Debtors have demonstrated that DOMA violates their equal protection rights  afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment.

(…)

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny. In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: the Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled

As Adam Winkler notes, the Bankruptcy Court’s decision can be directly tied to the Obama Administration’s legal reasoning in its decision not to defend DOMA in Court:

Although the relevant section of DOMA declares that all federal laws concerning marriage shall apply only to opposite-sex couples, the Bankruptcy Court explicitly adopted the reasoning and language of the letter released by Attorney General Eric Holder announcing the administration’s shift. The Holder letter explained that any law discriminating against people on the basis of their sexual orientation must satisfy “heightened scrutiny.” Gays and lesbians meet the traditional requirements for a more searching judicial review: they have historically suffered discrimination; their sexual orientation is essentially an immutable characteristic; and they are often victims of negative stereotypes that do not reflect their actual abilities. And while the Holder letter didn’t specify exactly what form of heightened scrutiny should apply – intermediate scrutiny, strict scrutiny, or something else – it did argue that discriminatory laws must at least be backed by “a tenable justification” that rests on the “actual” purposes of the law and not post-hoc “rationalizations.”

From here, assuming it gets appealed, the Courts ruling would head to the District Court since Bankruptcy Court’s are creatures of statute and thus subject to having their rulings reviewed by Article III Courts. From the District Court, it would proceed through the normal appellate process for Federal cases.

It’s interesting that the decision was signed by 80% of the judges on the Central District Bankruptcy Court, rather than just the single judge assigned to this case, although it has no real legal effect. More likely, it was meant to be a signal from the Bankruptcy Court to the District Court, where the court would be heard next, of what the sentiment on the court might be.   In the end, it strikes me that there’s no rational reason why a couple that has been legally married under the laws of a state should not be permitted to receive the same benefits that other married couples receive under Federal Law (Section Two of DOMA is another issue entirely). Not only is this a violation of Equal Protection, as the Court finds here, but there’s also the very legitimate question of exactly where in Constitution the Federal Government is given the power to define what “marriage” is or is not. If someone is married under the laws of the state of California, they should be considered married under the laws of the United States.

Moreover, Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s, the law also does serious damage to federalism:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

Politically, there seems almost no chance that this will happen legislatively. However, the legal challenges are mounting and the future of DOMA does not look good at all.

Here’s the opinion:

In Re Balas And Morales Memorandum Of Decision