Change of heart: No DoMA challenge after all to gay couple filing joint petition for bankruptcy – UPDATED

by on July 8, 2011  •  In DoMA, Marriage

The United States Trustee, a component of the Justice Department, has withdrawn its appeal of a Bankruptcy Court ruling that a lawfully married gay couple could file a joint petition, as spouses, seeking bankruptcy. The Justice Department has stopped defending DoMA, and the appeal was filed only to give the legal team hired by House Republicans the opportunity to defend it. So what this really means is that Paul Clement's team has taken a pass on this case, and presumably any bankruptcy case raising the same issue.

It isn't a surprise – the House Republican legal team bypassed the opportunity to become involved in this case earlier.  And it also makes sense for them to prioritize the much more important direct challenges to the constitutionality of DoMA's Section 3, like the Gill case, which is being actively contested in the First Circuit.

But it is also true that every time a court invalidates DoMA and that ruling goes unchallenged, a sense that there is a new status quo becomes more deeply entrenched, and the realization spreads that federal recognition of same-sex marriage does nothing to harm the administration of programs or the other functions of government. 

Meanwhile, Senator Patrick Leahy, chair of the Committee on the Judiciary, announced that the committee would hold hearings on a bill to repeal DoMA.

More details from MetroWeekly:

…DOJ spokeswoman Tracy Schmaler wrote to Metro Weekly that the July 6 filing in the Balas and Morales case represents a new policy, writing, "The Department of Justice has informed bankruptcy courts that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

Because of the federal definition of marriage contained within Section 3 of the Defense of Marriage Act, such joint filings have routinely been dismissed by courts at the urging of the U.S. Trustee, whose job as a "watchdog" over the bankruptcy process includes "[t]aking legal action to enforce the requirements of the Bankruptcy Code," according to the website for U.S. Trustee Program, which is a program under the Department of Justice.

In Balas and Morales's case, however, the bankruptcy court found on June 13 that Section 3 of DOMA was unconstitutional in its application to such couples attempting to file joint bankruptcy petitions. The U.S. Trustee, in consultation with the BLAG, had filed a notice that it was appealing the decision. The July 6 filing asks the court to withdraw that appeal.

In the filing, made in U.S. Bankruptcy Court in the Central District of California on July 6, Assistant U.S. Trustee Jill Sturtevant writes, "The [DOJ] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA."

Sturtevant goes on to write, "The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal."

About the department-wide policy, Schmaler wrote to Metro Weekly that the decision was made after consulting with the BLAG went on to note, "This decision is consistent with and follows the Administration's notification to Congress in February of this year that it would no longer defend the constitutionality of Section 3 of  DOMA as applied to legally married same-sex couples but would seek to provide Congress an opportunity to enter litigation to argue in favor of DOMA's constitutionality. This decision to stop filing motions to dismiss bankruptcy petitions avoids generating costly and time-consuming constitutional litigation that neither the BLAG nor the Department plans to defend."

UPDATE – Based on the Department's agreement to treat this ruling as applying to all bankruptcies nation-wide, the plaintiffs have notified the court that they will not contest the motion for withdrawal.  See the filing here.


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