|Reprinted from the September 2004 ABI Journal
||September 1, 2004
Web posted and Copyright © September 1, 2004, American Bankruptcy
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.