On Monday, the U.S. Bankruptcy Court for the Central District of California, in Los Angeles, made an unusual ruling for a bankruptcy court: it declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. In that case, a legally married same-sex couple in California tried to file a joint petition for Chapter 13 bankruptcy. The U.S. trustee filed a motion to dismiss on the grounds that the two men were ineligible to file a joint petition because the federal government did not recognize them as married, and the bankruptcy code allows only married couples to file joint petitions. The court denied the motion to dismiss, concluding that no “valid governmental interest is advanced by DOMA as applied to the Debtors.”
DOMA has been a subject of significant controversy among academics, politicians, and the general public. In a nutshell, there are two components to DOMA. The first (Section 2) provides that no state is obligated to recognize same-sex marriages validly performed in another state. The other component (Section 3) states that the federal government will only recognize a marriage if it is between one man and one woman.
Earlier this year, Attorney General Eric Holder released a letter to House Speaker John Boehner disclosing that the U.S. Department of Justice believes DOMA Section 3 violates the Equal Protection Clause of the U.S. Constitution and therefore, the DOJ would no longer defend it in jurisdictions where there was no precedent to the contrary. Holder, speaking for the President, said a law that classified individuals on the basis of sexual orientation should be subject to heightened scrutiny. With some exceptions, courts have generally avoided ruling as to the appropriate level of scrutiny, but most have assumed without deciding that classifications on the basis of sexual orientation were subject to the most permissive “rational basis” test.
Generally speaking, “rational basis” review requires only that a law be rationally related to a legitimate government interest, whereas “heightened scrutiny” requires that the law further an important government interest in a way that is substantially related to that interest. Laws that create classifications on the basis of gender have been the prototypical type of law to receive heightened scrutiny, but Attorney General Holder’s letter is persuasive evidence that classifications based on sexual orientation may also be entitled to that stricter level of judicial scrutiny.
The bankruptcy court’s decision is interesting for a number of reasons. Though it is not the first federal court to strike down the provision, it is the first bankruptcy court to do so. Some predict that the decision will be of limited nationwide significance because bankruptcy cases rarely end up in the Supreme Court, where the legal fate of DOMA will most likely be decided. Others are hopeful that it marks just one more blow to an already teetering unconstitutional act.
That the decision came down in California should hardly be surprising. The presence of an estimated 18,000 married same-sex couples in the state, the heated ongoing debate over Proposition 8 and subsequent legislation, and the reputedly liberal federal judges in the Ninth Circuit—together make California a likely source for this kind of decision. Against this backdrop, however, is the Ninth Circuit’s decision in High Tech Gays v. Defense Industrial Security Clearance Office, where the Ninth Circuit held that classification on the basis of sexual orientation is only entitled to a rational basis review.
Opponents of DOMA point to the Supreme Court’s decision in Lawrence v. Texas striking down a state law criminalizing consensual relations between adults of the same sex in arguing that High Tech Gays is no longer good law, but no court has yet expressly ruled on the matter. Thus, the Justice Department’s position seems to be the best authority for deciding the appropriate level of review. For that reason, it would seem that the bankruptcy court’s decision will stand.
Even if this bankruptcy court’s decision is overruled, its reasoning paves the way for a bankruptcy court outside of the Ninth Circuit to reach the same conclusion. In a Circuit that lacks precedent like High Tech Gays, the same decision would likely be upheld. For now, the fate of this ruling remains unclear. What is clear, however, is that DOMA will continue to face legal challenges from many directions, with impassioned advocates on all sides.
- DOMA Challenged from Unlikely Source, (WSJ Law Blog)
- California Bankruptcy Court Holds DOMA Unconstitutional, (Volokh Conspiracy)
- Bankruptcy Court: DOMA Unconstitutionally Limits Same-Sex Married Couples From Joint Bankruptcy Filing, (MetroWeekly)