In my last blog, I wrote about a Los Angeles bankruptcy court’s decision that a gay couple, who had been legally married in California, could file a joint bankruptcy. And they could do so in spite of a federal statute, the Defense of Marriage Act (“DOMA”), 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.”
This case is truly an extraordinary blend of law and politics:
1. The opinion of the bankruptcy court, In re Balas and Morales, which is virtually always signed by a single bankruptcy judge, was also signed by 19 other bankruptcy judges. This is an almost unheard of emphatic showing of support for a judge’s decision by his colleagues.
2. After the opinion was rendered in mid-June, the United States Trustee filed a notice of appeal of the opinion. The U.S Trustee “is a component of the Department of Justice responsible for overseeing the administration of bankruptcy cases.” It had filed the motion to dismiss the jointly filed bankruptcy case, and then, not surprisingly given the controversial and constitutional nature of the issue, it filed an appeal of the opinion. But then on July 3, barely a week later, it withdrew its appeal. Why would it file an appeal and then dismiss it a short time later?
3. Because the bankruptcy court is merely one battlefield on which the DOMA war is being fought. In a highly controversial move in February, President Obama decided that his Administration would not enforce DOMA. As this article stated:
Only a few times in history has a President decided his Justice Department will not defend an existing federal law. In those rare circumstances, the House of Representatives can step in and have its lawyers defend the law in court.
4. Coincidentally on the day before the Chapter 13 case at issue was filed, the President’s decision was made official with a letter from U. S. Attorney General Eric Holder to the Rep. John Boehner, Speaker of the House of Representative stating:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.
5. But then why would the U.S. Trustee, an arm of the U.S. Department of Justice, move to dismiss the case in defense of DOMA, and particularly go so far as to file an appeal? I don’t know why it filed the motion to dismiss, but the reason it appealed is a bit more clear. Between the time the bankruptcy case was filed in February and the rendering of the opinion in June, Speaker Boehner set up a “House Bipartisan Legal Advisory Group” (BLAG) to defend DOMA by “tak[ing] legal action on behalf of the House of Representatives.” As the bankruptcy court’s opinion states, “at the last minute [BLAG] orally requested a short continuance of the [scheduled] hearing in order to determine whether to intervene in this case to address the issues” Although this continuance was granted, BLAG did not intervene. The U.S. Trustee apparently filed the appeal because of indications that BLAG wanted to defend the constitutionality of DOMA through this case.
6. So why the change of mind just a few days later about the appeal? In its July 6 motion to dismiss the appeal, the U. S. Trustee’s attorney explained:
The [Department of Justice] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA.
The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal.”
Within days of this, the U.S. Trustee filed motions to dismiss other similar matters in other parts of the country. So, although usually one bankruptcy judge’s opinion on the unconstitutionality of a federal law would only be legally binding in that federal district, in this extraordinary combination of circumstances it looks like this particular opinion is effectively the law of the entire country. Unless the House Bipartisan Legal Advisory Committee changes its mind. Again.