<B><I>BREAKING NEWS:</b></i> Federal Bankruptcy Court Declares DOMA Unconstitutional

Two legally married California men who filed a Chapter 13 petition to restructure and repay their debts should be allowed to file jointly and should be afforded the same bankruptcy rights as any other legally married couple, held Judge Thomas Donovan.

Eighteen of his 24 colleagues signed on to his opinion, as did one recently retired judge who sits by assignment.

“I read it and it resonated with me,” said Judge Catherine Bauer, who signed the memorandum of decision. “I thought it was an important case given the economic climate. There are a lot of married couples out there who are same gender who need to file for bankruptcy.”

Bauer said it's not unusual for bankruptcy judges in the Central District to sign on to each other's opinions. “It saves a lot of money for folks if they know these judges sign onto this view of the law,” she said.

But it is rare for so many judges to sign on to a single decision, said Samuel Bufford, a former Central District bankruptcy judge and now a scholar in residence at Penn State Law.

And it's “highly unusual” for a bankruptcy court to declare any aspect of the law unconstitutional, Bufford added.

In February, Gene Douglas Balas and Carlos Morales filed a joint Chapter 13 petition. But the United State Trustee moved to dismiss the case because Balas and Morales ' who legally married along with 18,000 other same-sex couples before California voters passed a ban on gay marriage in 2008 ' are both men.

In the 20-page decision, Donovan denied that motion and ruled that the Defense of Marriage Act ' which defines “spouse” under federal law as “a person of opposite sex who is a husband or a wife” ' violates the couple's equal protection rights under the due process clause of the Fifth Amendment.

“Debtors also have demonstrated that there is no valid governmental basis for DOMA,” Donovan wrote.

“The court can conceive of no fair, just and rational basis to conclude that DOMA will contribute to the achievement of the goal of preserving scarce government resources and finds no basis in the evidence or record in this case to credit such a proposition,” Donovan wrote.

Several of the judges who didn't sign the decision didn't immediately return phone messages. Bauer said perhaps some of her colleagues preferred to weigh in only if they had the case in front of them.

“I feel that with what the recession is like out there, we have to give guidance to the community,” Bauer said, explaining her own decision to support the ruling. “We have lawyers wondering whether to file two separate petitions. It's a real practical problem.”

David Neale, co-managing partner of Los Angeles-based bankruptcy firm Levene, Neale, Bender, Yoo & Brill, said the ruling created some buzz.

“Having a judge make a constitutionality ruling in a bankruptcy case is not that routine,” Neale said.

Kate Moser writes for The Recorder, an ALM affiliate of The Matrimonial Stategist.

SAN FRANCISCO ' In a rare and sweeping bankruptcy ruling, a federal bankruptcy judge backed by most of his colleagues in the Central District of California has held that the federal Defense of Marriage Act is unconstitutional.