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A Good Start
In re Kandu is a victory for democracy and the rule of law.


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Fast on the heels of a recent Washington State court decision holding that homosexuals had a right to marry under Washington state law, a federal judge in the same state ruled this week that the federal Defense of Marriage Act (DOMA), which defines marriage under federal law in light of the traditional opposite-sex definition of the term, is constitutional. The decision in In re Kandu was the first legal challenge to DOMA to be decided by a U.S. court. While it is only round one in a series of legal challenges to DOMA beginning to percolate around the country, the decision represents a significant victory for the majority of Americans who believe in the rule of law and the rule of representative democracy.

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The case arose in, of all places, a federal bankruptcy court. Two women, Lee and Ann Kandu, were married in British Columbia in August 2003. They filed a joint petition for bankruptcy only two months later. (While that series of events might be taken as evidence of a lack of fiscal responsibility on the part of the newlyweds, the bankruptcy more likely had something to do with Ann Kandu’s state of health–she died shortly thereafter). Bankruptcy law permits joint bankruptcy filings only by a debtor and his “spouse.” Enter DOMA, which defines the term “spouse” as a matter of federal law to refer “only to a person of the opposite sex who is a husband or wife.” For the first 220 or so years of our republic, that definition of marriage was taken for granted in the law. But in 1996, when Hawaii courts seemed ready to demand that the state allow same-sex marriages, Congress enacted the law to make clear what was generally understood since the nation’s Founding: that marriage involves a union of a man and a woman. President Clinton signed DOMA into law with very little fanfare at the time.

Because federal bankruptcy law, as defined by DOMA, permits bankruptcy filings only by opposite-sex married couples, the bankruptcy court issued an order late last year telling the Kandus that their joint filing would be dismissed unless they could adequately explain why it shouldn’t be. So the Kandus filed legal papers challenging the constitutionality of DOMA on a number of grounds, arguing that the law disregarded the rights of the states to define marriage and that it denied same-sex couples the benefits of marriage in violation of the equal-protection and due-process clauses of the U.S. Constitution. Though disguised under the cloak of state constitutional law, these same arguments were the basis for Massachusetts and Washington state courts’ finding a constitutional right to same-sex marriage.

Kandu’s central argument was that homosexual couples enjoy a “fundamental right” to marry that is protected by due process. This argument stems from pernicious yet now ubiquitous language in a 1992 decision reaffirming the constitutional right to an abortion, Planned Parenthood of Southeastern Pa. v. Casey, which explains that at “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This seemingly limitless conception of individual liberty–derisively labeled by Justice Scalia the “famed sweet-mystery-of-life passage” in dissent from last year’s Lawrence v. Texas decision upholding a right to homosexual sodomy–is certain to form the foundation of any judicial attempt to expand individual rights well beyond the traditional understanding of those rights. Indeed, it is found at the heart of the recent Washington State court decision striking down the state’s attempt to define marriage as including only heterosexual couples.

To his everlasting credit, U.S. Bankruptcy Court Judge Paul B. Snyder didn’t bite at Kandu’s attempt to expand the constitutional protection for traditional marriage to same-sex marriages. While marriage itself is a fundamental right, he reasoned, nothing in the constitution–or even the many Supreme Court decisions expanding the breadth of the constitution–suggests that same-sex marriage is a fundamental right that is to be afforded heightened protection under the law. It is here that Judge Snyder’s break with his Washington State-court counterpart is most apparent. In a recent decision invalidating Washington’s definition of marriage, Superior Court Judge William L. Downing reasoned that tradition cannot provide a justification for excluding homosexual unions from the definition of marriage. But Judge Snyder properly recognized that tradition–constitutional tradition–played a central role in determining whether rights are entitled to heightened protection in the law. Such heightened protection, he recognized, is reserved only for rights so “implicit in the concept of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” While the Supreme Court’s decisions have been quite inconsistent in this area–finding, for instance, that the right to abortion is subject to this demanding inquiry–proponents of gay marriage would have a hard time honestly arguing that there is a longstanding history and tradition of same-sex marriage in American history. Consequently, Judge Snyder brushed aside recent recognition of this right under Massachusetts and Washington law as not illuminative with respect to the meaning of the federal constitution.

Having concluded that DOMA does not require heightened scrutiny because it neither impairs a fundamental right to marry nor discriminates on the basis of sex (in that it applies equally to both sexes), Judge Snyder then addressed whether the law is supported by a rational basis. In finding that it was, Judge Snyder exercised an old-fashioned form of judicial restraint–trusting the legislature’s motives. In enacting DOMA, both Congress and President Clinton sought to protect and encourage the role of a traditional family in procreation and child rearing. As President Clinton remarked at the time, “marriage is an institution between a man and a woman, that among other things, is used to bring children into the world.” DOMA, Judge Snyder concluded, is reasonably related to that legitimate goal, whether or not it is a perfect fit. Unlike the decisions of Massachusetts’s highest court, his opinion is not marked by the second-guessing of legislative reasoning that has become common in the recent trend of judge-made law.

Judge Snyder’s opinion is merely the beginning of the legal battle over DOMA. Several layers of appeal are likely, and the case is likely to end up in the U.S. Court of Appeals for the Ninth Circuit, a favorite venue for civil-rights activists. Other same-sex couples have filed lawsuits challenging the law’s definition as it relates to other provisions of federal law, such limitations on joint filing status under the U.S. tax code. Finally, a suit pending in Florida federal court challenges the statute’s provision excusing states from recognizing same-sex marriages made lawful in other states, such as Massachusetts. There is no telling how those cases might turn out. But Judge Snyder’s ruling is a welcome start.

Shannen W. Coffin, a Washington, D.C., attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice.



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