Tuesday, June 14, 2011

Bankruptcy Judges’ Defense of Marriage Act Ruling Briefly Summarized

“Cos it's a wave of bankruptcy/Can you believe now what you see?”

As I mentioned here, on Monday, June 13, the federal bankruptcy court in the Central District of California held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case (In re Balas) holds that applying DOMA to refuse to treat the legally married same-sex couple equally with married different-sex couples violates constitutional equality principles.

The U.S. Trustee had moved to dismiss Gene Balas and Carlos Morales’s joint bankruptcy petition on the grounds that they do not count as “spouses” under DOMA’s Section 3, which defines “marriage” and “spouse” for most federal law purposes.  The debtor husbands countered that DOMA was unconstitutional, and an extraordinary 20 bankruptcy judges agreed (again, see here).  Although the court began its analysis with the customary presumption that this act of Congress was constitutional, the court ultimately agreed with the married couple that the presumption was overcome in this case.

The bankruptcy court relied on the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez, which stated that “Our decisions have declined to distinguish between status and conduct” in at least some contexts, and Justice O’Connor’s concurring decision in the Court’s decision in Lawrence v. Texas in 2003 (which invalidated laws banning oral and anal sex), where she concluded that a law prohibiting only same-sex couples from engaging in those acts was “directed toward gay persons as a class.”  Accordingly, it concluded that DOMA discriminates on the basis of sexual orientation.  Agreeing with Attorney General Holder’s letter to Congress (see posts here) and following recent federal appellate precedent from the Ninth Circuit (in the case of Major Margaret Witt’s challenge to “Don’t Ask, Don’t Tell”), the bankruptcy court concluded that when the government discriminates on the basis of sexual orientation this is subject to heightened scrutiny, not deferential review, by courts.

In particular, the bankruptcy court agreed with Holder and the debtor couple – and, at several points, Chief Judge Walker’s opinion in Perry v. Schwarzenegger (which held that Proposition 8 was unconstitutional – see posts here) that “lesbians and gay men have experienced a history of discrimination”; that “sexual orientation is recognized as a defining and immutable characteristic”; that “lesbians and gay men face significant political obstacles”; and that “[s]exual orientation is irrelevant to an individual's ability to contribute to society.”  All of these factors weighed in favor of using more than minimal rational basis review to assess DOMA’s constitutionality.  Furthermore, the bankruptcy court accepted the “sex discrimination argument” against DOMA, concluding that the law “is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men.”  The court supported this conclusion with citations to Judge Walker’s Perry analysis and decisions from the Ninth Circuit concerning benefits for same-sex partners of court employees.

The court noted that the House Bipartisan Legal Advisory Group had indicated that it might intervene in this case to defend DOMA, but that it ultimately never filed any arguments with the court.  Accordingly, the bankruptcy court turned to the government interests offered in support of DOMA and could not “conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.”  The court therefore held that DOMA not only failed to survive heightened scrutiny but that it could not even pass the more deferential standard termed “rational basis review.”  “For example,” the court concluded, “the joint [bankruptcy] petition of the Debtors will have no effect on procreation or child-bearing.”  Nor could the court conceive of any “fair, just and rational basis to conclude that DOMA will contribute to the achievement of the goal of preserving scarce government resources” or find any “basis in the evidence or record in this case to credit such a proposition.”

This decision suggests that the momentum against the Defense of Marriage Act is building.  The June 13, 2011 ruling in In re Balas is likely to be cited in future litigation against DOMA as well as in efforts to get Congress to repeal the discriminatory Act.  As the bankruptcy court recognized, Gene Balas and Carlos Morales are a struggling family equally in need of the protections of the law, here bankruptcy law, as are families headed by different-sex couples.  Perhaps soon DOMA will be repealed or held unconstitutional even by the current right-leaning Supreme Court, either of which would remove one huge obstacle to equality under law.

20 Bankruptcy Judges Jointly Invalidate Defense of Marriage Act

"Cooperation is the secret to our success"

On Monday, June 13, the federal bankruptcy court in the Central District of California, which includes Los Angeles, held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case styled In re Balas may be found here.  Perhaps the most unusual aspect of the decision was who rendered it.

The opinion was signed by 20 judges of the Central District bankruptcy court, including the current Chief Judge.  This is the overwhelming majority of that court, which is authorized to have 24 judges (three of them temporary) and has sometimes had Judge William Altenberger (who is on “recalled status” in the Seventh Circuit) sit with it.  Altenberger signed this opinion, as did Judge Kathleen Thompson, who is not listed on the Central District bankruptcy court’s website, though Judgepedia notes that her term was set to end in 2016 but she had previously announced an intent to retire in January of 2011.  I have not yet tracked down her current status.

One attorney I know has not seen an opinion signed by multiple bankruptcy judges in 40 years of practice, and I have not heard of any such joint signings.  It seems clearly designed to convey the strength of that court’s judgment about the unconstitutionality of DOMA.  The joint signing practice echoes the U.S. Supreme Court’s decision in Planned Parenthood v. Casey, the 1992 decision that refused to overrule Roe v. Wade outright as requested by the first Bush administration.  In Casey, Justices O’Connor, Kennedy, and Souter jointly signed the controlling opinion, rather than following the Court’s customary practice of having an opinion designated as having one author with other Justices concurring in it.  The Casey joint opinion in turn seemed a rather deliberate allusion to the Supreme Court’s 1958 decision in Cooper v. Aaron, where all nine Justices signed an opinion rejecting community resistance to Brown v. Board of Education as an adequate basis for delaying integration of Little Rock High School.  The difference, of course, is that  there is no Supreme Court precedent – yet – directly holding the federal definition section of DOMA unconstitutional, so presumably these judges believe that established constitutional principles, the very same principles cited in Attorney General Holder’s letter concluding that DOMA is unconstitutional (blogged about here), which the bankruptcy court cited, dictate their conclusion.

This case of course can be appealed by the United States Trustee, but it seems unlikely that the Trustee would do so in light of the Holder letter's and the Obama administration’s position of no longer defending DOMA against married same-sex couples.