Ari Ezra Waldman | DOMA | Law - Gay, LGBT

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DOMA Goes Bankrupt and the Rhetoric of the Marriage Debate

BY ARI EZRA WALDMAN

Follow Ari on Twitter at @ariezrawaldman.

Bankruptcy On June 13 in Los Angeles, twenty bankruptcy court judges signed onto a decision declaring that insofar as Section 3 of the Defense of Marriage Act (DOMA) bars legally married same-sex couples from jointly filing for bankruptcy under Chapter 13 of the Bankruptcy Code, DOMA is unconstitutional. It was a remarkable, landmark and unprecedented decision based almost entirely on President Obama's stated view that state action that discriminates on the basis of sexual orientation deserves heightened scrutiny and that DOMA, as an example of such discrimination, fails that test. It was also a reminder that gay people, like everyone else, have suffered since the economic collapse of 2008; that gay people, like everyone else, need the protections of the Bankruptcy Code; and that gay people, like everyone else, should have access to marriage. It was another slice off the weakening armor around DOMA, a law that appears to be dying a "death from a thousand cuts."

Gene Balas and Carlos Morales were legally married in California in 2008, in that brief blissful moment before Prop 8 made a mockery of the institution of marriage. On February 24 -- one day after President Obama stated his belief that DOMA is unconstitutional and after dealing with serious illnesses and lack of employment that made them unable to pay their bills -- the couple filed a joint petition for bankruptcy protection under Chapter 13 of the Bankruptcy Code. The Bankruptcy Code permits any individual and his or her spouse to file a joint application.

The trustee's office -- a fancy name for that part of the government that oversees bankruptcy cases in the courts -- sought dismissal of the petition, arguing that federal bankruptcy law did not apply to married same-sex spouses because of DOMA. The House Bipartisan Legal Advisory Group -- another fancy name for the Republican-dominated House that is defending DOMA instead of the Obama Administration -- was granted a continuance to consider whether to intervene. House Republicans never did step in, which was something the bankrupcty judge found "noteworthy."

CONTINUED, AFTER THE JUMP...

In any event, the bankruptcy court went through the test for heightened scrutiny, finding that sexual orientation is immutable, that gay people suffer discrimination, that gays face significant political obstacles to alleviating discrimination at the ballot box, that one's sexual orientation is irrelevant to one's ability to contribute to society and even took to heart the notion that treating gay couples differently than opposite-sex couples is a form of gender discrimination. That last argument, though eminently reasonable to many of us, has been accepted by precious few courts and explicitly rejected by various federal appellate courts. The court also found no rational basis for DOMA.

Judge Donovan, the opinion's author, took a shot directly at Congress for passing DOMA in the first place, stating that "[a]lthough individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the debtors in this case."

This is an important decision. Even though bankruptcy judges sit pretty low on the totem poll of federal precedent, this decision, especially given its 20 co-signers, could persuade bankruptcy judges in every other jurisdiction where same-sex marriage is legal.

Most commentators have placed this decision in the narrative that DOMA violates the rights of same-sex individuals and couples. That is what heightened scrutiny is all about -- namely, making sure that when the state is fiddling around with discrimination against certain groups, it does so only for very good reasons. But, perhaps more notable is the bankruptcy judge's reminder that our quest for marriage rights is not simply an issue of "rights," but a matter of the virtue of marriage itself.

The court quoted Justice Douglas's homage to marriage from Griswold v. Connecticut, where the liberal lion of the Court noted that "[w]e deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

No truer words have ever been spoken. Marriage is dishonored when the state bars an entire class of persons from it for any reason, but especially for reasons that are irrational; their right to it is almost secondary to the importance of the institution itself.

This decision is not only another nail in DOMA's coffin, but it asks us to consider our rhetoric as we advocate on behalf of same-sex marriage. Are we simply asking for rights or are we also asking Congress -- or, this week, the New York State Senate -- to honor the institution of marriage by allowing gays to take part? This question may strike some as esoteric or even a little heretical, but how we make our arguments in court and in the court of public opinion matters.

If we stick to notions of "equality" and "rights," all of which are true, we run up against conflicting rights of others and the problem posed by domestic partnerships and civil unions as so-called compromises. After all, New York Republicans' quest for religious exemptions and protections is really one part of a debate over the rights of religious institutions. But, if we remind our conservative opponents that the debate over same-sex marriage is also about honoring the institution of marriage itself, thus speaking in language to which conservatives can relate, we may find it easier to get that extra vote and move beyond the sticking points that are holding up marriage in New York right now.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

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Comments

  1. Judge Donovan, the opinion's author, took a shot directly at Congress for passing DOMA in the first place, stating that "[a]lthough individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the debtors in this case."

    It's about time someone put it in those words!

    Posted by: MT | Jun 22, 2011 12:12:03 PM


  2. "But, if we remind our conservative opponents that the debate over same-sex marriage is also about honoring the institution of marriage itself, thus speaking in language to which conservatives can relate, we may find it easier to get that extra vote and move beyond the sticking points that are holding up marriage in New York right now."

    Do you really think that that approach is going to work with Greg Ball or his patrons at the Archdiocese? While I appreciate that conservatives are much less receptive than progressives to arguments based on the importance of equality, they reject the notion that our efforts are about honoring the institution of marriage itself; they see us as intent on destroying the institution by, in their minds, changing its definition.

    While I believe that this is and should be first and foremost a matter of our laws providing equal protection, I appreciate the suggestion that, in the case of marriage equality, the societal significance of the particular institution from which we are excluded is itself important and we should draw upon that in our legal and other arguments. Still, I'm not persuaded that this will boost our efforts of succeeding much with those inclined to favor discrimination.

    Posted by: Patric | Jun 22, 2011 12:35:00 PM


  3. I find it difficult to believe that "reminding our conservative opponenets that the debate over same sex marriage is also about honoring the institution of marriage itself"... is going to change many minds. There is the moveable middle, and then there are our opponents. The moveable middle we might be able to influence. The conservative opponents are entrenched in their need to hate.

    Posted by: MikeyDallas | Jun 22, 2011 12:36:57 PM


  4. Your cool rationality refreshes, as usual, Ari.

    Posted by: Jack | Jun 22, 2011 12:59:41 PM


  5. Again, thank you Clinton for DOMA. Let us not forget who signed their name on one of the most hateful pieces of federal legislation in US history.

    Posted by: M | Jun 22, 2011 12:59:59 PM


  6. There's plenty of blame to go around, true, but casting it does no one any good. Let us move on.

    Posted by: Jack | Jun 22, 2011 1:11:01 PM


  7. M, and let us not forget who proposed DOMA. Republicans, facing bleak prospects against Clinton in '96, proposed partial birth abortion bans and DOMA in an effort to drive a wedge between Clinton and the progressive base of the Democratic Party. I am not suggesting that Clinton should be immune from criticism for his decision to sign the law (I wrote in Mondale-Cuomo in '96 in protest of his decision to sign it) but he never would have had to sign it had Republicans not proposed it. Clinton has also argued that, had he not signed the statute, Republicans would have at the time sought a federal constitutional amendment on the topic and that, in 1996 as opposed to eight years later, they may very well have been able to secure one. The real enemy here, as always, are Republicans.

    Posted by: Patric | Jun 22, 2011 1:46:39 PM


  8. I have a question for the lawyers. All of the religious exemption discussion regarding NY has me wondering. Does the federal government have a legal definition of religion? How does the federal government decide what groups receive this status?

    Posted by: PLAINTOM | Jun 22, 2011 3:34:59 PM


  9. @Ari: Great update and analysis, thank you!

    Interesting, too, to see that these 20 judges have acknowledged the intuitive GENDER discrimination in DOMA. I've always seen denying the implicit gender discrimination as denying reality and simply tailoring the law to a pre-determined unspoken (and biased) conclusion that gay people are sub-human anyway. All simply ConLaw Politics in my mind, the Court hierarchy cautiously trying to not be TOO out of step with elected officials so as to maintain its own percieved legitimacy. But here are 20 judges' legal opinions making solid judgments based on reason and the law. Also in light of the documented changing mood of the country regarding the dignity of gay people, hopefully the Appeals Courts and Supreme Court start to see the light.

    @MikeyDallas:
    "The moveable middle we might be able to influence. The conservative opponents are entrenched in their need to hate."

    Hmm. Ok, but in my experience, the "conservative opponents" are not the 40% or so that the far right likes to claim, but some smaller percent. It's just that there's a large swath of people too busy or too bothered to not stand behind the Republican establishment, maybe based on the party their parents voted for or the party people in their state or workplace tend to get behind. In fact, I think it's largely just the LEADERS of the anti-gays and a few stalwart followers who won't EVER let go of opposition to regarding gay people as more than sub-human. The rest just tag along because of inertia and the force of prior-accepted rhetoric.

    So tweaking our rhetoric to line up with the reality that marriage equality means valuing the "virtue of marriage itself" seems sensible to me.

    Posted by: just_a_guy | Jun 22, 2011 3:41:01 PM


  10. Please pardon the ignorance of my earlier post since a quick google search reveals the legal definition question to be way to complex.

    Posted by: PLAINTOM | Jun 22, 2011 9:23:52 PM


  11. Thank you for the history PATRIC; much more helpful than the snide comments of others.

    Posted by: David R. | Jun 23, 2011 12:17:30 AM


  12. @plaintom: thank you for your comment and question. i'm sorry i'm only seeing comments now. it's been a busy few weeks.

    in any event, there is no specific definition of a religions per se insofar as you're asking for a legal definition of what religion is. no, there really isn't. however, when determining whether certain activities of a so-called religion should be granted weight, say, as against a state or federal law banning the practice, the Court looks to the "legitimacy" of the practice and the religion. For example, there could be a religion out there, a religion that satisfies the Webster dictionary definition, that insists on sacrificing 12 year old female virgins to the gods every tuesday at noon. The Court would say that a law that bans that practice, say, a generally applicable law against murder, is so important to the welfare and interests of the state and the legitimacy of the religious practice is so low that the law is completely fine and constitutional. Also, the use of peyote (a big time narcotic). A law that bans the possession and use of such drugs did interfere with a small religious practice and the Court said that the state's interest in stopping drug use far outweighed the need for the particular practice at issue. So, while I am not a religion clause expert, the legal question is more about the relationship between the legitimacy of the practice and the state interest rather than any particular definition of what constitutes a religion.

    i know that might be the most satisfying answer, but i hope that answers your question somewhat. let me know if not.

    thanks for reading!

    Posted by: Ari | Jun 23, 2011 11:14:11 AM


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