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Gay Bankruptcy Case Heading to 9th Circuit?

Gay Bankruptcy Case Heading to 9th Circuit?

 

A bankruptcy case involving a same-sex couple is to go before the 9th Circuit Court of Appeals if the couple’s lawyers get their way.

This announcement comes just days after after the Department of Justice decided to step in and appeal the U.S. Bankruptcy Court for the Central District of California’s decision that the couple could not be denied a joint bankruptcy filing under the “unconstitutional” Section 3 of the Defense of Marriage Act.

From the Wall Street Journal:

The Justice Department appealed the bankruptcy-court ruling Monday that declared the Defense of Marriage Act as unconstitutional. Such appeals of bankruptcy-court decisions would be heard by the U.S. District Court.

But lawyers for the couple involved in the bankruptcy case are seeking to skip that step and go right to appeals court.

“Because no ruling by the district court can establish the authoritative guidance one way or the other that judges, practitioners, debtors, creditors and interested parties need on this important issue, the debtors seek certification of this appeal directly to the Ninth Circuit,” according to papers filed by the couple’s lawyers.

A decision by the appeals court to take the case could put the issue of gay marriage on track for a hearing by the Supreme Court in 2012, an election year.

The case involves a bankruptcy filing brought by Gene Douglas Balas and Carlos A. Morales who have been married since 2008. The joint bankruptcy filing was challenged by the United States Trustee with a motion to dismiss because the filing was made jointly by two men “in violation” of DOMA’s definition of a spouse.

Judge Thomas Donovan’s June opinion, signed-off by 19 other federal bankruptcy judges, said that DOMA Section 3 as it applied to this case was unconstitutional given that under state law the couple are legally recognized as married and that to deny them the joint bankruptcy filing would be to treat them and that marriage as being unequal, clearly in violation of the legal integrity of their same-sex marriage. You can read more background on the case here.

The House Bipartisan Legal Advisory Group (BLAG) declined to step-in to defend the motion to dismiss per DOMA Section 3, however this decision was made not long after BLAG took up defending DOMA. Indeed, the Court’s opinion even noted BLAG’s apparent oversight. BLAG later said that it did not want nor need to intervene on every case. Some took that to mean that BLAG had assessed the court action and knew they were unlikely to win.

The Department of Justice announced Monday that it was appealing the decision so as to give Congress “a full and fair opportunity to participate in this and other cases.”

After the administration’s February decision and formal statement that it would not defend Section 3, the DOJ’s move to now appeal in this case has angered some LGBT rights advocates. Others, perhaps looking ahead, point out the language here is quite specific: the DOJ is inviting Congress to step in on the case and defend Section 3 of DOMA when 20 federal judges have already signed-off on an opinion saying this aspect of the law is unconstitutional.

Going before the 9th Circuit with such a ruling already in their favor can only be seen as a boon for the couple, and it would seem that any defense of DOMA would start off at a serious disadvantage. Have Obama’s “really smart lawyers” struck again? That remains to be seen, but if the 9th Circuit were to take up this case, and then later the Supreme Court of the United States, the implications for same-sex spouses could be far reaching.

 

Photo used under the Creative Commons Attribution License, with thanks to alex-s.

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8 comments

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12:42AM PDT on Jun 17, 2013

I suppose I've selected an unbelievable and interesting blog.
http://www.fieldbankruptcylaw.com/chapter-13-bankruptcy/

7:39AM PDT on Jul 5, 2011

Bernadette & rob, is it right to uphold a law that is in its self not able to meet the requirements of the constitution? NO.

We have just celebrated the founding of our FREE country, yet here are people saying that "NO, You can't do "that" its wrong" What is right for one person may not be right for another, but what gave you the right to make that decision for someone besides yourself. ?

This is the fundamental argument for a country with "freedom of religion" you can think & believe something is wrong, but before it can be (or should be) make into law, it must pass a constitutional test. DOMA, DADT, and other laws of this mien do not really pass muster, they all say that "your belief is right, and that belief is wrong" That fails the constitutional test in my book. (and may judges & lawyers too)

2:18PM PDT on Jul 2, 2011

@ Robert T. Gavin was the mayor of San Francisco and a strong advocate for GLBT rights. He was thinking about a run for governor. Don't know what happened to that since I moved away frm the S.F. Bay Area. I thought he was a terrific mayor.

1:26PM PDT on Jul 2, 2011

Q. Who's Gavin Newsome?! #confused

10:49AM PDT on Jul 2, 2011

No, DOMA violates the U.S. CONSTITUTION (the Supreme Law of the Land from sea to shining sea's) guarantees of equal protection to all persons under the law. California's Supreme Court had already ruled establishing special exclusionary laws against same-sex couples was a violation of those Constitutional guarantees allowing for same-sex couples to wed in California. The couple in this case married during the "Summer of Homo-Love" prior to the passage of Proposition 8. Nine months later, the California Supreme Court ruled the marriages entered into prior to passage would not be annulled. The couple is married and should be allowed to go bankrupt together.

Mean while, Proposition 8 is suffering from a series of legal set-backs, and will soon be stricken in Federal Appeals Court from the books, and/or the U.S. Supreme Court will get to make the ruling. Whether it goes to the U.S. Supreme Court or not, same-sex marriage will become the law of the entire United States & Territories. Proposition 8 was a tactical gem, that has become a strategic blunder as it was destined to go Federal. Opponents of same-sex marriage who dumped money into California to get Prop 8 passed would have done better to keep their money and let California go its way, rather than creating the means to bring the rest of the country along.

As Gavin Newsom put it, "It's gonna happen. It is inevitable. Like it or not, it's gonna happen."

10:37AM PDT on Jul 2, 2011

DOMA is DUMB and the same goes for DADT. Laws based in fear, homophobia, inequality and intolerance create more problems than they aim to solve. The trouble is people use religion and incorporate it into hate-based legislation which is stupid to begin with since church and state should always be separated.

Bernadette P., what are you talking about? Don't tell me you're against equality and actually support stupid laws like DOMA. If so I pity you.

8:47AM PDT on Jul 2, 2011

This couple is breaking the law as it stands.

7:11AM PDT on Jul 2, 2011

See the problems that arise by violating DOMA. Bankruptcy is a federal law, they were married under a state law that is a very minority position. The federal court should dismiss the bankruptcy and require they file their own bankruptcies as single debtors. Or, Congress should amend the bankruptcy law to allow for gay couples to file a joint bankruptcy petition. This couple is breaking the law as it stands.

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