The U.S. Bankruptcy Court for the Central District of California, in an opinion signed by 20 of the court’s 25 judges, has held that Section 3 of the federal Defense of Marriage Act unconstitutionally bars a married same-sex couple from filing a joint bankruptcy petition. The issue arose when the couple, one of 18,000 such couples legally wed in California in 2008, endured long illnesses, hospitalization, and unemployment. This left them unable to pay their bills, so they filed for bankruptcy protection. The court’s opinion, which focuses on this narrow bankruptcy slice of the overall federal marriage pie, shows how DOMA could die from a thousand small cuts.
The couple filed the petition on February 24, a day after the Justice Department announced it would no longer defend Section 3 of DOMA, which defines marriage for federal purposes as the union of one man and one woman. The Bankruptcy Trustee moved to dismiss the petition on the grounds that federal bankruptcy law did not apply to married same-sex spouses because of DMA. The House Bipartisan Legal Advisory Group — which is defending DOMA in lieu of the Justice Department — was granted a continuance to consider whether to intervene. The time expired with no action from the HBLAG, a non-response the court considered “noteworthy.”
On the merits, the court held that Section 3, as applied to married same-sex couples filing joint bankruptcy petitions, violate equal protection principles. The court relied on the arguments for heightened scrutiny of sexual-orientation discrimination contained in Attorney General Eric Holder’s letter announcing the new position of the DoJ on DOMA. In addition, relying on Judge Walker’s decision in the Prop 8 case, it held that the DOMA marriage definition discriminates on the basis of sex.
Applying heightened scrutiny, the court determined that none of the justifications for DOMA hold up very well. Keeping an already married same-sex couple from filing a joint bankruptcy petition would not plausibly encourage responsible procreation and child-bearing, help heterosexual marriages, defend traditional morality, or save on administrative costs.
While most of the opinion analyzes the issue in this bankruptcy-focused way, it does contain some rather broad statements that suggest larger constitutional problems for DOMA in its numerous other potential applications:
(HT: Chris Geidner)
Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment.
The court concludes by invoking Justice Douglas’ love letter to marriage in Griswold v. Connecticut:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.