June 14, 2011
On June 13, 2011, the federal bankruptcy court for Central District of California struck down the definition of marriage in the federal Defense of Marriage Act (DoMA). The court held that DoMA could not be used to prevent a homosexual married couple from filing a joint bankruptcy petition. The decision was signed by twenty judges who started with this observation: This case is about equality, regardless of gender or sexual orientation.... Good grief.
Ed Whelan, NRO and Ethics and Public Policy Center, had this to say about the decision:
I know very little about bankruptcy-court procedure, so I dont know if there is any good reason why the decision was signed by twenty bankruptcy judges. Update: A bankruptcy-law expert tells me that there is no good legal reason for the multiple signatories and that in the ordinary course the decision would have been signed only by the single judge handling the case.
The decision rests heavily on the badly confused as-applied heightened-scrutiny standard adopted by the Ninth Circuit in Witt v. Department of Air Forcea ruling that the Obama administration (and then-Solicitor General Elena Kagan, in particular) irresponsibly failed to challenge in the Supreme Court. It also invokes Attorney General Holders (shoddy) reasoning explaining the Obama administrations decision not to defend DOMA. So the bankruptcy courts decision is very much a direct product of the Obama administrations sabotage of the laws that it is obligated to defend.
So, the beat goes on as we await activity on DoMA in the First Circuit. I suppose there is a possibility that Paul Clements group working for the House of Representatives may appeal this bankruptcy decision. It is not yet clear how many DoMA cases they will take on.