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Bench Memos

NRO’s home for judicial news and analysis.

Bankruptcy Court Ruling Against DOMA



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Yesterday the United States Bankruptcy Court for the Central District of California issued a decision holding that the Defense of Marriage Act could not constitutionally apply to prevent a same-sex married couple in California (a couple married in the window between the state supreme court’s May 2008 ruling inventing a state constitutional right to same-sex marriage and the November 2008 adoption of Proposition 8) from filing a joint petition for bankruptcy.

I know very little about bankruptcy-court procedure, so I don’t know if there is any good reason why the decision was signed by twenty bankruptcy judges. Update: A bankruptcy-law expert tells me that there is no good legal reason for the multiple signatories and that in the ordinary course the decision would have been signed only by the single judge handling the case.

The decision rests heavily on the badly confused as-applied heightened-scrutiny standard adopted by the Ninth Circuit in Witt v. Department of Air Force—a ruling that the Obama administration (and then-Solicitor General Elena Kagan, in particular) irresponsibly failed to challenge in the Supreme Court. It also invokes Attorney General Holder’s (shoddy) reasoning explaining the Obama adminisration’s decision not to defend DOMA. So the bankruptcy court’s decision is very much a direct product of the Obama administration’s sabotage of the laws that it is obligated to defend.



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