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Bankruptcy case involving same-sex couple challenges constitutionality of DOMA

Posted: June 23, 2011

Buffalo, NY - If the same-sex marriage legislation currently being considered by New York State law-makers passes, bankruptcy courts in this state could be deliberating the same controversy over the federal Defense of Marriage Act (DOMA) as a court in the Central District of California. In a recent decision signed by 20 judges of the California Central District’s U.S. Bankruptcy Court, DOMA was declared unconstitutional in the face of a challenge by a legally married gay couple who wished to file bankruptcy jointly.

“If DOMA had prevailed it would have meant a heterosexual couple could file one case, pay one filing fee, attend one creditors’ meeting, one confirmation hearing, pay one attorney fee, while this gay couple -- who have already faced severe financial difficulties due to medical bills and a job loss -- would have had to pay twice the court and attorney fees,” said Mark Laudisio, an attorney with Jeffrey Freedman Attorneys at Law. “Paying double is a significant amount of money for people already suffering under an unrelenting burden of debt.” They would also have to attend separate meetings of creditors and confirmation hearings.

DOMA was passed in 1996 by both houses of Congress and signed by then President Bill Clinton. The law says the federal government only recognizes marriages between one man and one woman, and prohibits the federal government from recognizing a gay marriage even if an individual state like California allows gay marriages. (Same-sex Californians legally married prior to the passing of Proposition 8 in 2008 are still recognized as legally married.) According to its supporters at the time, the goals of the law were: “defending and nurturing traditional heterosexual marriage;” “defending traditional notions of morality;” and “preserving scarce resources.”

The 20 judges from California wrote that allowing a married gay couple to file bankruptcy together had “no effect on procreation” nor could it “in any way harm any marriage of heterosexual persons.” They also said DOMA should not have been passed in the first place, and that the Justice Department should stop defending the law in court.

“The government cannot demonstrate a legitimate governmental purpose is furthered by treating a legally married gay couple differently from a legally married heterosexual couple,” Laudisio said. “The decision by the bankruptcy court in California shows that social disapproval alone is not enough to survive a constitutional challenge under the equal protection clause of the U.S. Constitution.”

It has been reported that the Obama administration stated earlier this year it believes DOMA violates the U.S. Constitution and has ordered the Justice Department to stop defending the law in court.

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