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Defense of Marriage Act Upheld by Federal Court
Too Bad its only a Bankruptcy Court

According to Agape Press, a bankruptcy court situated in the State of Washington has upheld the provisions of DOMA over the effort of a couple of women who had married in Canada to file a joint bankruptcy. According to the news report:

The ruling on Thursday from U.S. Bankruptcy Judge Paul Snyder in Tacoma said the Defense of Marriage Act (DOMA), which defines marriage as only a legal union between one man and one woman as husband and wife, is constitutional.

The case arose after two women, Ann and Lee Kandu, were "married" in British Columbia in August 2003. Several months later, they filed a joint petition for bankruptcy in Washington state. But federal law allows joint bankruptcy filings only by a debtor and his or her "spouse." According to DOMA, a "spouse" -- under federal law -- refers "only to a person of the opposite sex who is a husband or a wife."

The Kandus argued that the right to marry, without regard to the genders of the parties involved, is a fundamental right. But Judge Snyder rejected the Kandus' arguments and refused to expand the constitutional protections afforded to traditional marriage to same-sex marriage.

"No federal court...has explicitly recognized that this fundamental right to marry extends to persons of the same sex," the judge wrote, adding that the court must "be extremely cautious before creating on its own a new fundamental right based on what the Supreme Court might decide in the future." "Washington Bankruptcy Case Yields DOMA-Friendly Ruling", By Allie Martin, Jody Brown, and Rusty Pugh, August 20, 2004.

Before anyone gets too excited, it needs to be noted where the bankruptcy courts lie in the Constitutional scheme. You see, the bankruptcy courts are Article I courts, i.e., they are not part of the judicial branch (Article III). The decisions of the bankruptcy court are appealable to the Distict Court in the District where they are located (the lowest Article III court in the District). If you are unfamiliar with the position of the District Court, it is the federal version of the trial court. In other words, with all due respect to the Bankruptcy Court judges (many of whom are fine people), their decisions do not carry the same weight (and hence, their decisions do not have the same precedential effect) as the lowest courts in the judicial branch.

While I believe that the decision of this bankruptcy judge is both right and helpful, it is nothing that I am going to get overly excited about.

2 comments:

BK,

Does this really tell us how the DOMA will withstand an attack, say, on one state's refusal to recognize the gay marraige of another state? For example, what if Texas refuses to recognize the marriage of a same-sex married couple from Massachussets? The Full Faith and Credit Clause may require Texas to accept it. As I understand DOMA, it also was supposed to prevent one state from having to recognize the same-sex marriage license from another state. Since this Bankruptcy Court is only discussing whether federal law recognizes a gay marriage from another country, the Full Faith and Credit Clause is not at issue.

At most, therefore, it appears all this decision says is that there is no federal constitutional right to gay marriage.

Layman, you are correct. I just reviewed the text of DOMA and it does not even apply to this situation (other than to the extent that it defines "marriage" as being between one man and one woman). Unfortunately, I don't have the resources to look up the court case until it is out in advance sheets at the local law library. I will try to review it then to see exactly how it used DOMA in the case.

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