Metropolitan News-Enterprise


Wednesday, June 15, 2011


Page 1


Central District Bankruptcy Judges Hold DOMA Unconstitutional




The federal Defense of Marriage Act deprives same-sex couples of due process and the equal protection of the laws, 20 bankruptcy judges in the Central District of California have ruled.

In an unusual, if not unprecedented step, the judges joined Monday in an opinion denying a motion by the U.S. trustee to dismiss a joint petition for Chapter 13 relief by one of the approximately 18,000 same-sex couples married in California prior to the passage of Proposition 8.

Robert Pfister, an attorney for Gene Balas and Carlos Morales, said the decision is the first in the country to address the constitutionality of DOMA in the bankruptcy context. DOMA provides that the federal government will not recognize the validity of a same-sex marriage entered into under the laws of any state or foreign nation.

Holder Letter

Citing Attorney General Eric Holder’s recent letter to House Speaker John Boehner explaining why the Department of Justice will no longer defend the act, the bankruptcy judges said DOMA cannot survive heightened constitutional scrutiny.

 Nor, the judges said, can the law survive rational basis review. Contrary to the interests asserted by Congress in adopting the law, they explained, denying same-sex couples the protection afforded other married couples filing jointly will not advance the institution of heterosexual marriage, encourage procreation, defend traditional marriage, or save the government money.

“[T]he court here discerns no valid, defensible governmental interest advanced by dismissing the Debtors’ bankruptcy case...,” the judges wrote. “The Debtors are lawfully married and are otherwise fully qualified to be joint debtors pursuant to § 302(a) of the Bankruptcy Code.”

Discrimination based on sexual orientation, the judges said, is unconstitutional because it is based on an immutable characteristic that “is irrelevant to an individual’s ability to contribute to society.”

Hearing Continued

The judges noted that the hearing on the motion to dismiss was continued from its original date in order to allow the Bipartisan Legal Advisory Group of the House of Representatives, which has taken up the defense of DOMA since Holder wrote his letter, to present argument. But the group, which has contracted on the government’s behalf to pay former Solicitor General Paul Clement $500,000 to defend the law, filed nothing with the court.

An attorney for the U.S. trustee could not be reached for comment, but Pfister said he expected the trustee to appeal to either the District Court or the Bankruptcy Appellate Panel. If he does so, Pfister said, his clients may ask that the appeal be certified to the Ninth U.S. Circuit Court of Appeals.

That could make the case the first DOMA case heard by the Ninth Circuit, he said.

Pfister added that it was a “complete surprise” to him that the large group of judges joined in the opinion, after the motion was heard by Judge Thomas Donovan, although he saw other judges among the spectators in the packed courtroom for Monday’s hearing.

He did not ask for anyone other than Donovan to rule, he said. “I don’t even know how you ask for that,” the attorney said.

But it was obvious, he said, that the judges took “a really hard look at the constitutionality” of DOMA. And by ruling collectively, they made it possible for attorneys to provide clients who are in same-sex marriages with consistent advice on whether to file joint petitions.

The case is In re Balas and Morales, 2:11-bk-17831 TD.


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