In re Kandu, decided Aug. 17 (Bankr W.D. Wash; 2004 WL 1854112)."> American Bankruptcy Institute | LEGISLATIVE HIGHLIGHTS: Federal Defense of Marriage Act (DOMA) Upheld by Wash. Bankruptcy Court
American Bankruptcy Institute
Join Renew Refer a Colleague Partners Search ABI Store Contact Us Site Map
American Bankruptcy Institute
About ABIABI MembershipMeetings & EventsOnline ResourcesPublicationsNews RoomConsumer Bankruptcy Center
 Print this page

Reprinted from the September 2004 ABI Journal September 1, 2004

Web posted and Copyright © September 1, 2004, American Bankruptcy Institute.

Federal Defense of Marriage Act (DOMA) Upheld by Wash. Bankruptcy Court

he 1996 federal law that defines marriage as "a legal union between one man and one woman" is constitutional, according to the case of In re Kandu, decided Aug. 17 (Bankr W.D. Wash; 2004 WL 1854112). The case arose when two U.S. women, who were married in British Columbia in 2003, sought to file a joint bankruptcy petition in Washington state. In response to the court's order to show cause for an improper joint filing of unmarried individuals, debtor Lee Kandu challenged the constitutionality of the DOMA.

The decision is the first legal challenge to DOMA decided by a federal court and comes on the heels of a separate state court case in Washington holding that homosexuals had a legal right to marry under state law. In §302(a), bankruptcy law permits joint bankruptcy filings only by a debtor and a spouse. DOMA defines "spouse" as a matter of federal law to refer "only to a person of the opposite sex who is a husband or wife."

The challenge was that the law disregarded the rights of states to define marriage and that it denied same-sex couples the benefits of marriage in violation of the equal protection and due process clauses of the U.S. Constitution. The central argument was that homosexual couples enjoy a fundamental right to marry that is protected by due process. Judge Paul Snyder reasoned that while marriage itself is a fundamental right, nothing in the constitution suggests that same-sex marriage is a fundamental right needing heightened scrutiny. In the prior state court case, a Superior Court judge ruled that tradition cannot provide a justification for excluding homosexual unions from the definition of marriage. But Judge Snyder recognized that the traditions at issue here are those that are "objectively deeply rooted in this nation's history." Because same-sex marriages are not deeply rooted in U.S. history or traditions, they cannot be considered a fundamental right.


© 2014 American Bankruptcy Institute, All Rights Reserved