New York Allows Same-Sex Marriage, While National Case Law Evolves

New York's legislature's decision to permit same-sex partners to marry within the State came June 24, after a nail-biting lead-up. For weeks, many questioned whether the measure would come to a vote at all, and whether enough Republican senators could be persuaded to vote in favor, along with the majority of Democrats (only one Democrat, the Bronx's Ruben Diaz, voted against it). The bill passed after provisions were made to protect religious institutions from being sued or penalized by the State for declining to perform same-sex weddings or permit them to take place in their facilities. The legislation also contains a non-severability clause, which says that if any portion of the law is judicially declared invalid, the entire law will become invalid. This will prevent courts from declaring the religious institution exemptions unlawful while upholding the right of same-sex couples to marry in New York.

The law went into effect 30 days after passage, on July 24, and at press time, wedding plans were being made statewide and beyond (the law allows out-of-state same-sex couples to wed in New York). New York is now the Sixth and largest state to allow same-sex partners to marry; the others are Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. Same-sex marriages may also be entered into in the District of Columbia.

Couples married in accordance with New York's Marriage Equality Act of 2011 will undertake the same responsibilities and enjoy the same protections that married heterosexual couples have. This will eliminate many questions that were generated by a hodge-podge of local rules, state-government policy pronouncements and judicial decisions that previously plagued same-sex couples married in other states but residing in New York: Can we make medical decisions for one another when one of us is incapacitated? Can we file our state tax return as a married couple? Will we be able to divorce if we grow apart? Now, same-sex couples can answer these questions using the same New York State laws that
apply to opposite-sex married couples in New York.

Federal Recognition a Murkier Issue

Of course, New York's passage of the Marriage Equality Act no more opened up the federal government to recognizing same-sex marriage than did passage of similar legislation in Connecticut or Vermont. The federal Defense of Marriage Act (Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) codified in pertinent part at 1 U.S.C. ' 7) (DOMA), remains the law of the land. It not only declares that the federal government does not recognize same-sex marriages (Section 3), but also says that sister states need not give full faith and credit to same-sex unions entered into in other states in which they are legal (Section 2).

DOMA was passed by large majorities of both houses and signed into law in 1996. Since then, several challenges to its constitutionality have been lodged, mostly unsuccessfully. But the Obama administration told Congress, through a letter sent on Feb. 23, 2011 by Attorney General Eric Holder to Speaker of the House John Boehner, that it would no longer attempt to defend challenges to the constitutionality of DOMA's Section 3. This policy was formulated after Holder concluded that because gay and lesbian citizens have suffered a well-documented history of discrimination, they must be treated as a “suspect class” for purposes of evaluating the constitutionality of legislation affecting them. As such, laws that attempt to impose restrictions on them must be subjected to at least the “intermediate,” or “heightened,” test of constitutionality, in which the government must show that the disputed law is substantially related to an important government interest. The President and the Attorney General did not believe DOMA could survive such constitutional review under the strict scrutiny standard. That is why, the Holder letter said, the Department of Justice (DOJ) would no longer defend the law.

Naturally, this does not mean that DOMA is finished. It remains in force nationwide unless and until it is repealed or declared unconstitutional by the highest court in the land. Meanwhile, opponents of DOMA are chipping away at the law, with the assistance of the federal government.

Bankruptcy Court Rejects DOMA Argument

The holding in the bankruptcy case In re Balas and Morales, 2011 Bankr. LEXIS 2157, caused a big stir when it was handed down by the U.S. Bankruptcy Court for the Central District of California on June 13. In it, DOMA, as applied to the subject legally married same-sex couple seeking bankruptcy protection, was found unconstitutional. Twenty of the 24 justices sitting on the court signed off on its holding ' a resounding denunciation of DOMA.

The case involved the bankruptcy petition of two men, Gene Balas and Carlos Morales, who were legally married in California in 2008. Due to health and unemployment issues, they found themselves struggling financially, to the point that they voluntarily filed for Chapter 13 Bankruptcy protection. The U.S. Trustee moved for dismissal of the petition pursuant to Bankruptcy Code ' 1307(c) (dismissal for cause), arguing that Balas and Morales were ineligible to file a joint petition in accordance with Bankruptcy Code ' 302(a) because it provides for joint filing by married couples only. As two men, Balas and Morales were not married debtors in the eyes of the federal government because of DOMA, said the trustee. The debtors countered that “[T]he only issue in this Bankruptcy Case is whether some legally married couples are entitled to fewer rights than other legally married couples, based solely on a factor (the gender and/or sexual orientation of the parties in the union) that finds no support in the Bankruptcy Code or Rules and should be a constitutional irrelevancy.” Debtors' Opp. 5:24-28. They went on to assert that “DOMA, as the U.S. Trustee seeks to apply it in this Bankruptcy Case, is inconsistent with the Constitution's guarantee of equal treatment.”

Justice Thomas B. Donovan, writing for the court, first looked at ' 1307(c)'s 11 enumerated reasons for dismissal for cause, most of which deal with failure to meet various deadlines. The court found nothing there concerning the sex of married couples filing jointly. Thus, it concluded, dismissal was not warranted on account of ' 1307(c).

Next, the court considered Bankruptcy Code ' 302(a), which explicitly allows any qualified individual and such individual's spouse to file a joint petition. As spouses, Balas and Morales should be able to file jointly, unless DOMA applies to them. In DOMA, the term “spouse” is defined as “a person of the opposite sex who is a husband or wife.” The section goes on to state that this definition shall be used in interpreting federal statutes, court decisions and administrative pronouncements. Therefore, DOMA should be used to disqualify the couple from joint filing unless DOMA is unconstitutional.

The court analyzed the issue using a heightened form of constitutional inquiry. (Note, however, that the court said its conclusions concerning the constitutionality of DOMA would have been no different if the least stringent form of constitutional inquiry ' using the “rational relationship” test ' had been employed instead.)

The first question the court asked in this regard was, “Does the application of DOMA to the bankruptcy proceeding in issue advance an important state interest?” The “important state interests” enumerated by the drafters of DOMA were: 1) The encouragement of responsible procreating and child-bearing; 2) The defense or nurturing of the institution of traditional heterosexual marriage; 3) The defense of traditional notions of morality; and 4) The preservation of scarce resources. The court found the first of these inapplicable, as the debtors have no children, and even if they did, their filing of a joint bankruptcy petition would not affect those children any differently than it would the children of an opposite-sex couple. As to the second, because the debtors are already married, permitting them to proceed with their petition “cannot have the slightest cognizable effect on anyone else's marriage,” said the court. Concerning traditional notions of morality, the court found no relationship between the filing of a joint bankruptcy petition and morality, “traditional or otherwise.” And, finally, the court could see no need for the federal government to expend any more resources on these joint filers than on any of the other thousands of joint filers who have sought bankruptcy through the years.

Justice Donovan wrote that, in reality, “the government's only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: The Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled. The court is of the opinion that the Debtors have met their high burden of overcoming the presumption of the constitutionality of DOMA.”

Conclusion

The historic passage of the Marriage Equality Act has already changed New York's social, political and economic landscape. For those who fought long and hard to obtain the right to marry, it is cause for rejoicing. Others are already organizing to make sure the legislators who supported the Act get voted out of office next time around. Wedding industry players ' coordinators, florists, banquet hall operators ' are anticipating an upswing in business. And some companies that were offering medical insurance coverage to their employees' live-in partners are working on changing their policies to once again require marriage before such benefits are given.

On the national and interstate level, much will remain the same as before, since DOMA is still in force. However, when it comes to bankruptcy cases, one thing has changed. Soon after the decision was rendered in Balas and Morales, the U.S. Trustee for the Central District of California filed a notice of appeal, confusing many who had counted on the DOJ to stick to its stated intention to stop defending Section 3 of DOMA. Then, on July 6, the Trustee asked for leave to withdraw its appeal, citing the DOJ's opinion that Section 3 is unconstitutional, and its reluctance to waste taxpayer money defending the law in the Balas and Morales case when so many other challenges to DOMA are already in the appellate pipeline. At the same time, MetroWeekly, a gay, lesbian and transgender news publication out of Washington, DC, reported that it had received a communication from DOJ spokesperson Tracy Schaler, in which she expressed the DOJ's intention to stop seeking dismissal of joint bankruptcy filings made by legally married same-sex spouses. Geidner, MetroWeekly, www.metroweekly.com/poliglot/2011/07/us-trustee-withdraws-appeal-of.html (last visited 7/8/11).

Janice G. Inman is Editor-in-Chief of this newsletter.

New York's legislature's decision to permit same-sex partners to marry within the State came June 24, after a nail-biting lead-up. For weeks, many questioned whether the measure would come to a vote at all, and whether enough Republican senators could be persuaded to vote in favor, along with the majority of Democrats (only one Democrat, the Bronx's Ruben Diaz, voted against it). The bill passed after provisions were made to protect religious institutions from being sued or penalized by the State for declining to perform same-sex weddings or permit them to take place in their facilities. The legislation also contains a non-severability clause, which says that if any portion of the law is judicially declared invalid, the entire law will become invalid. This will prevent courts from declaring the religious institution exemptions unlawful while upholding the right of same-sex couples to marry in New York.

The law went into effect 30 days after passage, on July 24, and at press time, wedding plans were being made statewide and beyond (the law allows out-of-state same-sex couples to wed in New York). New York is now the Sixth and largest state to allow same-sex partners to marry; the others are Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. Same-sex marriages may also be entered into in the District of Columbia.

Couples married in accordance with New York's Marriage Equality Act of 2011 will undertake the same responsibilities and enjoy the same protections that married heterosexual couples have. This will eliminate many questions that were generated by a hodge-podge of local rules, state-government policy pronouncements and judicial decisions that previously plagued same-sex couples married in other states but residing in New York: Can we make medical decisions for one another when one of us is incapacitated? Can we file our state tax return as a married couple? Will we be able to divorce if we grow apart? Now, same-sex couples can answer these questions using the same New York State laws that
apply to opposite-sex married couples in New York.

Federal Recognition a Murkier Issue

Of course, New York's passage of the Marriage Equality Act no more opened up the federal government to recognizing same-sex marriage than did passage of similar legislation in Connecticut or Vermont. The federal Defense of Marriage Act (Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) codified in pertinent part at 1 U.S.C. ' 7) (DOMA), remains the law of the land. It not only declares that the federal government does not recognize same-sex marriages (Section 3), but also says that sister states need not give full faith and credit to same-sex unions entered into in other states in which they are legal (Section 2).

DOMA was passed by large majorities of both houses and signed into law in 1996. Since then, several challenges to its constitutionality have been lodged, mostly unsuccessfully. But the Obama administration told Congress, through a letter sent on Feb. 23, 2011 by Attorney General Eric Holder to Speaker of the House John Boehner, that it would no longer attempt to defend challenges to the constitutionality of DOMA's Section 3. This policy was formulated after Holder concluded that because gay and lesbian citizens have suffered a well-documented history of discrimination, they must be treated as a “suspect class” for purposes of evaluating the constitutionality of legislation affecting them. As such, laws that attempt to impose restrictions on them must be subjected to at least the “intermediate,” or “heightened,” test of constitutionality, in which the government must show that the disputed law is substantially related to an important government interest. The President and the Attorney General did not believe DOMA could survive such constitutional review under the strict scrutiny standard. That is why, the Holder letter said, the Department of Justice (DOJ) would no longer defend the law.

Naturally, this does not mean that DOMA is finished. It remains in force nationwide unless and until it is repealed or declared unconstitutional by the highest court in the land. Meanwhile, opponents of DOMA are chipping away at the law, with the assistance of the federal government.

Bankruptcy Court Rejects DOMA Argument

The holding in the bankruptcy case In re Balas and Morales, 2011 Bankr. LEXIS 2157, caused a big stir when it was handed down by the U.S. Bankruptcy Court for the Central District of California on June 13. In it, DOMA, as applied to the subject legally married same-sex couple seeking bankruptcy protection, was found unconstitutional. Twenty of the 24 justices sitting on the court signed off on its holding ' a resounding denunciation of DOMA.

The case involved the bankruptcy petition of two men, Gene Balas and Carlos Morales, who were legally married in California in 2008. Due to health and unemployment issues, they found themselves struggling financially, to the point that they voluntarily filed for Chapter 13 Bankruptcy protection. The U.S. Trustee moved for dismissal of the petition pursuant to Bankruptcy Code ' 1307(c) (dismissal for cause), arguing that Balas and Morales were ineligible to file a joint petition in accordance with Bankruptcy Code ' 302(a) because it provides for joint filing by married couples only. As two men, Balas and Morales were not married debtors in the eyes of the federal government because of DOMA, said the trustee. The debtors countered that “[T]he only issue in this Bankruptcy Case is whether some legally married couples are entitled to fewer rights than other legally married couples, based solely on a factor (the gender and/or sexual orientation of the parties in the union) that finds no support in the Bankruptcy Code or Rules and should be a constitutional irrelevancy.” Debtors' Opp. 5:24-28. They went on to assert that “DOMA, as the U.S. Trustee seeks to apply it in this Bankruptcy Case, is inconsistent with the Constitution's guarantee of equal treatment.”

Justice Thomas B. Donovan, writing for the court, first looked at ' 1307(c)'s 11 enumerated reasons for dismissal for cause, most of which deal with failure to meet various deadlines. The court found nothing there concerning the sex of married couples filing jointly. Thus, it concluded, dismissal was not warranted on account of ' 1307(c).

Next, the court considered Bankruptcy Code ' 302(a), which explicitly allows any qualified individual and such individual's spouse to file a joint petition. As spouses, Balas and Morales should be able to file jointly, unless DOMA applies to them. In DOMA, the term “spouse” is defined as “a person of the opposite sex who is a husband or wife.” The section goes on to state that this definition shall be used in interpreting federal statutes, court decisions and administrative pronouncements. Therefore, DOMA should be used to disqualify the couple from joint filing unless DOMA is unconstitutional.

The court analyzed the issue using a heightened form of constitutional inquiry. (Note, however, that the court said its conclusions concerning the constitutionality of DOMA would have been no different if the least stringent form of constitutional inquiry ' using the “rational relationship” test ' had been employed instead.)

The first question the court asked in this regard was, “Does the application of DOMA to the bankruptcy proceeding in issue advance an important state interest?” The “important state interests” enumerated by the drafters of DOMA were: 1) The encouragement of responsible procreating and child-bearing; 2) The defense or nurturing of the institution of traditional heterosexual marriage; 3) The defense of traditional notions of morality; and 4) The preservation of scarce resources. The court found the first of these inapplicable, as the debtors have no children, and even if they did, their filing of a joint bankruptcy petition would not affect those children any differently than it would the children of an opposite-sex couple. As to the second, because the debtors are already married, permitting them to proceed with their petition “cannot have the slightest cognizable effect on anyone else's marriage,” said the court. Concerning traditional notions of morality, the court found no relationship between the filing of a joint bankruptcy petition and morality, “traditional or otherwise.” And, finally, the court could see no need for the federal government to expend any more resources on these joint filers than on any of the other thousands of joint filers who have sought bankruptcy through the years.

Justice Donovan wrote that, in reality, “the government's only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: The Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled. The court is of the opinion that the Debtors have met their high burden of overcoming the presumption of the constitutionality of DOMA.”

Conclusion

The historic passage of the Marriage Equality Act has already changed New York's social, political and economic landscape. For those who fought long and hard to obtain the right to marry, it is cause for rejoicing. Others are already organizing to make sure the legislators who supported the Act get voted out of office next time around. Wedding industry players ' coordinators, florists, banquet hall operators ' are anticipating an upswing in business. And some companies that were offering medical insurance coverage to their employees' live-in partners are working on changing their policies to once again require marriage before such benefits are given.

On the national and interstate level, much will remain the same as before, since DOMA is still in force. However, when it comes to bankruptcy cases, one thing has changed. Soon after the decision was rendered in Balas and Morales, the U.S. Trustee for the Central District of California filed a notice of appeal, confusing many who had counted on the DOJ to stick to its stated intention to stop defending Section 3 of DOMA. Then, on July 6, the Trustee asked for leave to withdraw its appeal, citing the DOJ's opinion that Section 3 is unconstitutional, and its reluctance to waste taxpayer money defending the law in the Balas and Morales case when so many other challenges to DOMA are already in the appellate pipeline. At the same time, MetroWeekly, a gay, lesbian and transgender news publication out of Washington, DC, reported that it had received a communication from DOJ spokesperson Tracy Schaler, in which she expressed the DOJ's intention to stop seeking dismissal of joint bankruptcy filings made by legally married same-sex spouses. Geidner, MetroWeekly, www.metroweekly.com/poliglot/2011/07/us-trustee-withdraws-appeal-of.html (last visited 7/8/11).

Janice G. Inman is Editor-in-Chief of this newsletter.