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DOJ Asks That DOMA Be Upheld In Bankruptcy Case

Jim Burroway

June 29th, 2011

Two weeks ago, a California Bankruptcy judge cited the Justice Department’s determination that the Defense of Marriage Act required heightened scrutiny and declared that a married same-sex couple could proceed in their bankruptcy case as a married couple. The justice Department is now appealing the decision:

Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the  President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.

In May, Eric Holder vacated at deportation order against an Irish national who had entered into a civil union with an American man. In that case, Holder asked the immigration judge to consider “whether respondent’s same-sex partnership or civil union qualifies him to be considered a ‘spouse’ under New Jersey law.” That directive persuaded another immigration judge — this one in Connecticut, a marriage equality state — to halt the deportation a Venezuela nation who was legally married to an American. Surely the California couple, who were legally married during the period when same-sex marriages were being granted in 2008, are considered spouses under California law, and are thus entitled to consistency in court. But with this bankruptcy appeal, the DOJ’s policy on DOMA enforcement has become an unmitigated mess.



June 29th, 2011 | LINK

I smell coersion

June 29th, 2011 | LINK

Unmitigated mess is precisely the right description of the Administration’s actions and message on DOMA.

June 29th, 2011 | LINK

It’s not what they promised, but I still think it’s a good thing, long-term. The only way to get rid of DOMA by court action is to get precedent set, and the only way that will happen is if it’s defended, preferably in cases where nobody could possibly find it’s in anybody’s best interest to uphold it. Bankruptcy sure qualifies on that front, and if their defense is going to include statements that the law is unconstitutional, is it really a defense at all?

Timothy Kincaid
June 29th, 2011 | LINK

It’s fascinating.

House Speaker John Boehner announced that his special counsel would not appeal this decision. But the Administration has decided to?

That’s very disturbing. It puts Obama and Holder further into the anti-marriage position than the Republican Speaker.

June 29th, 2011 | LINK

To the complainers: please learn the legal process. They want a precedent set first. The appeal makes total sense in the overall picture.

Timothy Kincaid
June 29th, 2011 | LINK

No, Tony, it does not make sense. Or certainly not if we know the legal process.

There are already several cases moving towards precedent and this one is trailing far behind. No precedent will – or can be – set by this case. The only impact the decision to appeal will have is on those individuals who are seeking protection under the US Bankruptcy Code.

June 29th, 2011 | LINK

I’m just tired of the constant complaining. Could you imagine if McCain had won the presidency? Obama has done a lot for us, and all any of the bloggers and commenters do is complain. It’s getting very old. The HRC released a statement yesterday talking shit on RI civil unions. Umm.. would you rather have nothing at all? Seriously. The radicalization of gay politics is going to hurt us.

June 29th, 2011 | LINK


Yes Obama is better than McCain. No that doesn’t mean we shouldn’t criticize him when his administration does something wrong, or fails to do something right. The left generally values constructive criticism over loyalty. This decision seems to go against what the administration previously said is their policy on (not) defending DOMA.

As for Rhode Island… it’s absurd that New York, with a much more conservative legislature (and a much more conservative state overall), was able to just pass marriage equality… but Rhode Island with their super-majorities of Democrats is setting the bar at civil unions. They can and should be pushed harder.

June 29th, 2011 | LINK

What about the bankrupt couple? This completely screws them over because, hey!, they’re bankrupt! How are they supposed to pay attorneys to defend them in this government appeal.

Is this really that important to the DOJ? If they don’t appeal it only is precedent for the Southern District of California, and then only in the bankruptcy courts in that district.

Now the couple AND their creditors are going to have to wait out a protracted battle on the constitutionality of DOMA? Say, what?

Yes, the appeal might barely possibly help in some future utopia, but meanwhile this couple (and their creditors, for that matter) is getting royally screwed by a DOJ which seemingly can’t tell its ass from a teakettle with both hands and a flashlight.

June 29th, 2011 | LINK

why should DOJ be any different than the rest of the Obama administration? a total mess…

June 29th, 2011 | LINK

So basically what Tony is saying is that it’s better to be screwed over by someone that says they support you to your face but doesn’t actually put themselves out to act on that so called support very often than it is to be screwed over by someone that is upfront and honest about the fact that they don’t support you? Sorry, but just because Obama has thrown a few bones to the LGBT community that does not make him above reproach when it comes to this kind of thing. If he says he is a supporter of LGBY rights than he should be consistent in that support but he isn’t. Because when it comes down to it, he will say what he thinks contributors and voters want to hear so he can get support for his policies and campaigns and he never have to follow through on the big promises as long as he occasionally gives those supporters a few crumbs and keeps dangling the big carrots in front of them.

June 29th, 2011 | LINK

Sorry! In my previous post I mis-named the federal court district. It should be the Central District of California.

June 30th, 2011 | LINK

If we had just left well enough alone and not pressured the administration to drop the original appeals DOMA would be well on the way to being done. The administrations case was weak, and looked sure to lose.

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