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Back to Section One | Back to Arts & Entertainment
posted Friday, July 8, 2011 - Volume 39 Issue 27
No appeal of bankruptcy court DOMA decision - DOMA still unconstitutional
Section One
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No appeal of bankruptcy court DOMA decision - DOMA still unconstitutional

by Mike Andrew - SGN Staff Writer

Assistant U.S. Trustee Jill Sturtevant announced on July 6 that she would no longer challenge a ruling by a U.S. bankruptcy court in California that the Defense of Marriage Act (DOMA) is unconstitutional.

The U.S. Trustee is a program under the U.S. Department of Justice (DOJ), assigned to act as a watchdog over the bankruptcy process to ensure compliance with federal laws.

Also on July 6, a DOJ spokesperson confirmed that the trustee's decision represented a new DOJ policy. DOJ will no longer seek to dismiss joint bankruptcy filings by same-sex couples under the provisions of DOMA, the spokesperson said.

The announcements mean that the ruling by the U.S. Bankruptcy Court for the Central District of California, based in Los Angeles - that DOMA is unconstitutional - will stand.

The June 13 ruling came in a bankruptcy filing brought by a same-sex married couple, Gene Douglas Balas and Carlos A. Morales.

Because Section 3 of DOMA limits federally recognized marriage to opposite-sex couples, such joint filings have been routinely dismissed by courts, at the urging of the U.S. trustee.

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 remaining 23 bankruptcy judges in the Central District, in an unprecedented show of unanimity.

Sturtevant said that her decision was made after consultation with BLAG, the Bipartisan Legal Advisory Group set up by House Speaker John Boehner to defend DOMA in court.

According to Sturtevant, BLAG decided it was not worth the expense to appeal the bankruptcy court decision since other legal challenges to DOMA are still pending in federal courts.

'The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged,' Sturtevant wrote in her July 6 filing.

'In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial [forums] for the resolution of the constitutional question, the U.S. Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal.'

DOJ spokeswoman Tracy Schmaler wrote to Metro Weekly that the July 6 filing in the Balas and Morales case represents a new policy, based on President Obama's decision that his administration will no longer defend DOMA in court.

'The Department of Justice has informed bankruptcy courts that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law,' she said.

'This decision is consistent with and follows the administration's notification to Congress in February of this year that it would no longer defend the constitutionality of Section 3 of DOMA as applied to legally married same-sex couples but would seek to provide Congress an opportunity to enter litigation to argue in favor of DOMA's constitutionality. This decision to stop filing motions to dismiss bankruptcy petitions avoids generating costly and time-consuming constitutional litigation that neither the BLAG nor the Department plans to defend.'

This announcement comes less than a week after DOJ filed a brief in another case - Golinski v. OPM - asserting that DOMA was motivated by anti-Gay bias and is, therefore, unconstitutional.

Mere hours before the bankruptcy court filing, the U.S. Ninth Circuit Court of Appeals lifted the stay on a U.S. District Court order to the Defense Department to stop enforcing 'Don't Ask, Don't Tell.'

The Ninth Circuit ordered the Pentagon to 'take immediate steps' to comply with the District Court decision.

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