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.
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.