Another DoMA challenge (probably) heads for appeal
A little noticed decision on Monday adds to the crowd of challenges to Section 3 of DoMA, which bars the federal government from recognizing the validity of same-sex marriages. In In re Balas and Morales, 20 of the 24 judges who comprise the U.S. Bankruptcy Court for the Central District of California signed an opinion finding that Section 3 is unconstitutional.
Most Bankruptcy Court decisions are signed by a single judge, and there was no explanation of why so many signed this opinion. It may be because the Central District, located in Los Angeles, has one of the largest dockets of bankruptcy cases in the nation, and the judges wanted to signal that they would not apply DoMA to married same-sex couples so that they would not have to keep considering the question in multiple cases.
This case arose when Gene Balas and Carlos Morales, "like many struggling families during these difficult economic times," filed for bankruptcy. Because the two men were married, they filed a joint petition. The United States Trustee (an office within the Justice Department that is charged with identifying problematic legal issues not raised by either debtors or creditors) moved to dismiss the joint petition on the ground that DoMA barred any recognition of the marriage for federal law purposes.
Relying heavily on Attorney General Holder's letter declaring that DoJ would no longer defend the constitutionality of DoMA, the Bankruptcy Court judges found that DoMA, as applied to Balas and Morales, failed to satisfy either a rational basis or heightened scrutiny test of constitutionality, essentially for the same reasons articulated in the Holder letter and in the District Court's opinion in Gill v. Office of Personnel Management (the case brought by GLAD challenging Section 3). Balas is the first federal court decision on this question since the Holder letter was issued.
There is some question whether Balas will be appealed. The Administration's decision to drop its defense of DoMA led Speaker Boehner to retain former Solicitor General Paul Clement to defend DoMA on behalf of the House of Representatives. Clement was given two weeks to intervene in Balas, but he elected not to file any papers. So he may not pursue an appeal either.
If Clement does appeal,the case will not go to the Ninth Circuit, at least immediately, but instead to the Bankruptcy Appellate Panel for the Ninth Circuit. The plaintiffs' lawyer, however, has said that he would then seek to move the case to the Ninth Circuit.
Balas is the most recent ruling in a string of cases filed in federal courts in California that seek benefits for public employees who are married to their same-sex partners and whose benefits were denied based on DoMA: Dragovich v. Department of Treasury, In re Golinski, and In re Levenson. There are also two cases pending in the trial courts in the Second Circuit: Pedersen v. OPM and Windsor v. OPM. In none of those cases, however, has the trial judge rendered a final judgment on the merits of the constitutionality issue. But because Balas will not go directly to the Ninth Circuit, even though its ruling does reach the merits, one of the other California cases may jump ahead of it in the Ninth Circuit pipeline.
The Gill case, already before the First Circuit, is the farthest along of all the DoMA challenges, but briefing is suspended pending a ruling on the motion to intervene filed by the House of Representatives through its Legal Advisory Group.
There is no way to predict when any appellate court will render a decision, but I would bet that at least one gets handed down next year, when the 2012 campaigns will be intense. If the decision strikes down Section 3, we will get an acid test of whether Republican gay-baiting still works as a political attack and whether or to what extent gay marriage has lost its wedge issue value to the right wing. For most of the country, like for Balas and Morales, the spectre of financial ruin may be a much more pressing issue.