Bankruptcy Court Goes After DOMA

by William C. Duncan

Over the past few weeks, there have been three bankruptcy-court rulings that have garnered more attention than such decisions usually do. That’s because these involve the federal Defense of Marriage Act (DOMA). The most recent, decided yesterday in the Central District of California, is the most sweeping. It concluded that a same-sex couple married in California could file a joint bankruptcy petition because the law that would have prevented the joint petition, DOMA, was unconstitutional as a violation of the Fifth Amendment’s due-process clause. Ed Whelan has already written about it at Bench Memos, and he is absolutely correct that the Obama administration’s decision not to defend DOMA is largely responsible for the decision.

Some other observations about this decision:

— The court notes it did not get a defense of DOMA from the government, so it was deciding a case having heard only one side’s arguments.

— The other two recent rulings were based on very narrow considerations (like saving the court’s time by not separating the same-sex couple’s joint petition), whereas this one is a full-bore attack on the constitutionality of DOMA, even though the example of the other courts suggests that the broad ruling was totally unnecessary.

— The court’s conclusion that DOMA had no rational basis (again, relying heavily on the administration’s failure to defend) runs contrary to a great weight of authority. On this point, the court chose to cite a couple of cases that supported what seems to have been a predetermined conclusion, and did not even mention decisions reaching a different conclusion.

There is always be a temptation for judges to shoot for the history books, and the judges involved in this case appear to have succumbed. To have done so without full consideration of countervailing arguments — in fact ignoring them — is indefensible.

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