Last Add: Judge Donovan Tomorrow

In 2011, Judge Donovan ruled on a Motion to Dismiss in a chapter 13 case filed jointly by two men.  Federal law – Defense Against Marriage Act (DOMA) – decreed that if federal law said “spouses,” that meant a man and a woman.  Judge Donovan ruled that DOMA was unconstitutional and refused to dismiss the case.  You should read his written opinion, it is very poignant.   We can discuss this with him tomorrow.  My brief follows.

In re Balas and Morales, 449 B.R. 567 (Bankr. C.D. Cal. 2011) (Donovan, J.)
Issue: Are two men, properly married under the laws of California, eligible to file a joint bankruptcy case?
Holding:  Yes.   Note: Nineteen Central District judges concurred and signed this opinion.
Counsel for the debtors: Peter Lively and Rob Pfister.

U.S. Bankruptcy Judge: Hon. Thomas Donovan

The debtors, two men, filed a joint chapter 13 petition. They were married “to each other” under California law in 2008 “and remain married today.”  The US Trustee filed a Motion to Dismiss for “cause.”  It cited the Defense of Marriage Act, “DOMA,” 1 U.S.C. section 7, which “defines the term ‘spouse’ for the purpose of applying federal law, as ‘a person of the opposite sex who is a husband or a wife.’”

Judge Donovan wrote: “The issue presented to this court is whether the Debtors, who are legally married and were living in California at the time of the filing of their joint petition, are eligible to file a ‘joint petition’ as defined by § 302(a).” “In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple.”

Judge Donovan denied the motion. “This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code).”  “[T]he court here discerns no valid, defensible governmental interest advanced by dismissing the Debtors’ bankruptcy case or requiring, as the Motion to Dismiss suggests, that the Debtors consent [under the duress of DOMA] to ‘voluntarily sever their joint petition by a date certain.’”  After a lengthy constitutional equal protection analysis, Judge Donovan concluded, “The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either underheightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA.”

Note: The debtors’ chapter 13 plan was confirmed on June 29, 2011. The UST filed an Appeal of this order but withdrew the appeal a few weeks later.

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