A ruling from the US Bankruptcy Court for the Central District of California has found that Section 3 of the Defense of Marriage Act is unconstitutional because it prevents same sex couples from filing a joint petition for bankruptcy.

Section 3 prohibits the federal government from recognizing same sex marriages and thus prevents same sex couples from filing joint tax returns, getting social security benefits, etc.

Since a significant part of my practice is bankruptcy I found this ruling interesting. Just as a little primer, when you file for bankruptcy and are married you and your spouse can choose to file jointly, just as you do with income taxes.

Doing so allows all you to eliminate those debts covered by bankruptcy with a single filing feee, a single hearing, etc.

But if you are a same sex couple, even if you are in a legal domestic partnership or marriage, you cannot file jointly and would have to do two petitions. This would require two filing feees, two hearings and in most cases two attorney’s fees or at least some extra costs since the attorney would have to attend to two different cases.

In the specific case the two debtors were legally married in California during the period of time that marriage was legal in California, and under California law they are recognized as married by the state. But under DOMA the federal courts do not recognize this.

An interesting development on the DOMA front. I’ve always felt that DOMA is invalid simply because the Congress has no power to legislate on marriage but this is a second reason to strike it down.

There is some debate of course as to whether striking Section 3 would make the entire law invalid but the general rule is that absent a severability clause (stating that part of the law can fail while the rest reamins) then striking a major part of the law usually invalidates the entire law.

PATRICK EDABURN, Assistant Editor
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Copyright 2011 The Moderate Voice
  • Good post, Patrick. The biggest surprise, IMO, is that DOMA has made it this long without rulings like this.

    The question is whether this case will go beyond the District Bankruptcy Court level to establish some precedent at a higher level. You know more about bankruptcy law and procedure than I, so I’ll rely on your expertise in making that prediction.

  • PATRICK EDABURN

    Well whether it is appealed or not depends on what the US Trustee’s office decides to do.

    They could appeal it to the higher courts but I am not sure whether they will. But if the ruling stands then it would be precedent for other petitions and I assume eventually some trustee would appeal.

    As I said in my post, I’ve always felt that DOMA had issues on enumerated powers (IE Congress has no power to legislate on marriage) but that is subject of an entirely new thread.

  • LOGAN PENZA

    While I agree with the outcome, some of the text of the decision strikes me as curious and legally questionable. In particular, the “significant segment of our pluralistic society” would seem to be a test for group-based constitutional protections that has no basis I am aware of in constitutional law for the application of “heightened scrutiny”.

    If I’m right, it will be easy to slap down on appeal IF standing problems can be resolved (the absence of DoJ defense of DOMA may raise serious standing issues).

  • PATRICK EDABURN

    Well to me the decision is pretty simple.

    You have two legally married couples, one male/female and one male/male.

    One can file bankruptcy and one cannot.

    That violates equal protection.

    Again I think enumerated powers and full faith and credit (despite the past rulings on that issue) doom DOMA entirely.

  • LOGAN PENZA

    As I said, Patrick, I was questioning some of the underlying dicta and secondary reasoning, not the outcome itself.

  • PATRICK EDABURN

    Fair enough… I meant no offense of course.