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by Teresa M. Harkins La Vita
A CA federal bankruptcy court
in In re: Balas and Morales became the first since the DOJ's announcement that
it would no longer defend the Defense of Marriage Act to rule on the
constitutionality of DOMA. The bankruptcy court found that DOMA violates the
equal protection rights of a married same-sex couple who filed a joint
bankruptcy petition. The DOJ will no longer challenge joint bankruptcy
petitions brought by married same-sex couples.
The bankruptcy process can give
a debtor a "fresh start" by allowing the debtor to enter into a
repayment plan or liquidate assets to pay debts. Bankruptcy proceedings are
governed by federal statutory law and are litigated in federal United States
Bankruptcy Courts located in the individual states. One important benefit to
bankruptcy is that spouses have the option to file joint bankruptcy petitions.
The Defense of Marriage Act (DOMA), which defines "marriage" as
"a legal union between one man and one woman as husband and wife . . .
," has prevented married same-sex spouses from enjoying a multitude of
federal benefits typically afforded to a married couple. The benefits denied
include Social Security payments and joint federal income tax filing. DOMA has
also precluded married same-sex spouses from reorganizing debt through joint
On February 23, 2011, Attorney General Eric Holder released a statement that
the Department of Justice (DOJ) would no longer defend DOMA. However, "the
President  instructed Executive agencies to continue to comply with Section 3
of DOMA . . . unless and until Congress repeals Section 3 or the judicial
branch renders a definitive verdict against the law's constitutionality." As
members of Congress were then given the opportunity to defend DOMA, shortly
after the DOJ's announcement the House Bipartisan Legal Advisory Group (BLAG)
of the House of Representatives hired former Solicitor General Paul Clement to
defend DOMA in federal court proceedings. Thus it was unclear as of early 2011
whether DOMA would still operate to deny federal benefits to legally married
same-sex couples. [footnotes omitted]
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