Tuesday, July 5, 2011
Bankrupt Same-Sex Couple Seeks Immediate Review by Ninth Circuit
By a MetNews Staff Writer
The couple who won an historic ruling by the bankruptcy judges in the Central District of California that they have a constitutional right to file a joint bankruptcy petition have asked the Bankruptcy Court to certify the governmentís appeal of that ruling directly to the Ninth U.S. Circuit Court of Appeals.
In a petition filed Thursday, attorneys for George Balas and Carlos Morales asked the court to invoke the rarely-used certification procedure, primarily so that attorneys for other married same-sex couples in California can intelligently advise them whether to file jointly.
Twenty of the districtís 24 judges ruled June 13 that to the extent it precludes same-sex married couples from jointly filing for bankruptcy, the federal Defense of Marriage Act deprives same-sex couples of due process and the equal protection of the laws.
The judges joined in an opinion denying a motion by the U.S. trustee to dismiss the joint petition by Gene Balas and Carlos Morales for Chapter 13 relief. Balas and Morales are among approximately 18,000 same-sex couples married in California prior to the passage of Proposition 8.
The decision was 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.
The U.S. trustee has appealed that ruling, and has indicated that it is likely to continue moving to dismiss joint petitions by similarly situated couple. Attorneys for the petitioners, from the law firm of Klee, Tuchin, Bogdanoff & Stern LLP and the Law Office of Peter M. Lively, argued in their motion that this will lead to confused and inconsistent enforcement.
Not only will judges in this district have to continue ruling on motions to dismiss, they said, but judges in other districts in California will not be bound by the Central District ruling. In addition, they noted that while the U.S. trustee here has been collecting information on petitions filed by same-sex couples in order to continue filing such motions, some couples may avoid those motions, particularly if their first names do not clearly indicate their gender.
The case is In re Balas and Morales, 2:11-bk-17831 TD.
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