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Back to Section One | Back to Arts & Entertainment
posted Friday, June 17, 2011 - Volume 39 Issue 24
DOMA is unconstitutional, says U.S. Bankruptcy Court
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DOMA is unconstitutional, says U.S. Bankruptcy Court

by Mike Andrew - SGN Staff Writer

The U.S. Bankruptcy Court for the Central District of California, based in Los Angeles, released an opinion on June 13 finding Section 3 of DOMA unconstitutional.

Their ruling came in a bankruptcy filing brought by a same-sex married couple, Gene Douglas Balas and Carlos A. Morales.

Judge Thomas B. Donovan found that DOMA violates the Equal Protection Clause of the U.S. Constitution. His ruling was signed by 19 of the 23 other bankruptcy judges in the Central District, in an unprecedented show of unanimity.

U.S. House Speaker John Boehner - who has hired an attorney to defend DOMA on behalf of the House - said on June 16 that he would not challenge the Bankruptcy Court's ruling.

Balas and Morales were legally married in California on August 20, 2008, and remain legally married because the passage of Prop 8 did not invalidate marriages concluded during the brief period that same-sex marriage was legal in California.

They filed a joint Chapter 13 bankruptcy petition on February 24, coincidentally one day after U.S. Attorney General Eric Holder announced that President Obama had concluded that DOMA is unconstitutional.

Their petition was challenged by the U.S. bankruptcy trustee, who asserted 'that the Debtors are ineligible to file a joint petition based on Bankruptcy Code ยง 302(a) because the Debtors are two males.'

According to Judge Donovan's written opinion, the trustee in this case had consulted with Boehner's House Bipartisan Legal Advisory Group, although the BLAG ultimately decided not to intervene in the case.

Judge Donovan completely rejected the claim that DOMA should control the disposition of the case.

'This case is about equality,' he wrote, 'regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code).'

'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,' Donovan continued.

Donovan then went on to review - and ultimately dismiss - arguments in favor of DOMA.

'None of these post hoc defenses of DOMA withstands heightened scrutiny,' he wrote. '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.'

ERW Executive Director Josh Friedes said the court's ruling is additional evidence that DOMA is unconstitutional.

'What's happening to DOMA reminds me of the old children's story - the emperor has no clothes!' Friedes told SGN. 'I think what we are likely to see are more and more cases where judges call DOMA what it really is, an unconstitutional law that serves no compelling interest and harms millions of Americans.'

'The greater the variety of courts that argue DOMA is unconstitutional, the faster it will fall,' he added. ACLU Washington's Doug Honig agreed.

'[The ruling] is another example of a growing consensus that DOMA is discriminatory, indefensible, unconstitutional, and should be struck down,' Honig said.

Asked if he saw broader legal implications in the Bankruptcy Court's ruling, Honig replied, 'Our lawyers are looking at that.'

'We have a history of challenging DOMA and I'm sure [the ruling] is something we'll take into account in our ongoing strategy,' Honig added.

Boehner spokesperson Brendan Buck told The New York Times that the speaker would not challenge the ruling because it was not likely to have wider application.

'Bankruptcy cases are unlikely to provide a path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided,' he said.

'Obviously, we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.'

Friedes told SGN that even if the Bankruptcy Court's ruling did not have a wider judicial application, it would help create public opinion in favor of marriage equality.

'Candidates who support DOMA will increasingly be viewed as bigoted, hateful or ignorant by moderate voters who have LGBT friends, family members, neighbors, or co-workers,' he said. 'We just need to keep the pressure on by telling the stories of how DOMA hurts families and we have to allow skilled legal professionals to decide what are the best cases to bring.'

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DOMA is unconstitutional, says U.S. Bankruptcy Court
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