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.
Copyright 2011 The Moderate Voice