First DOMA Challenge Rejected

Federal bankruptcy judge refuses to recognize Canadian lesbian marriage

In the first reported court decision regarding federal recognition of a Canadian same-sex marriage, U.S. Bankruptcy Judge Paul B. Snyder ruled on August 17 that principles of “comity” governing recognition of foreign marriages would not require the court to allow an American same-sex couple married in Canada to file a joint bankruptcy petition as spouses.

Finding that the federal Defense of Marriage Act (DOMA), which specifies that only marriages between one man and one woman can be recognized by the federal government, required dismissing the petition, Snyder also rejected arguments that DOMA’s application in this case violates applicants’ constitutional rights.

In practical terms, this opinion will create a severe hardship for the petitioner, Lee Kandu, who may well lose her home.

The U.S. Trustee, acting as agent for the Justice Department in this bankruptcy, actively opposed the application of Kandu, who represented herself in this case.

Lee and Ann Kandu, residents of Washington State, married in August 2003 in British Columbia. Soon afterwards, both women were diagnosed with cancer and faced significant debts as their expenses mounted and they had difficulty working. The couple long ago combined their finances, and Lee filed a voluntary bankruptcy petition in October 2003, listing Ann as her spouse and joint debtor, in order to protect their property. The court responded to the joint filing by ordering a hearing about the claim that the couple was married.

Ann Kandu passed away in March of this year, but that did not resolve the matter because Lee sought to have their assets and debts dealt with under the bankruptcy law as a lawfully married couple. Ownership title of their house was still in Ann’s name.

The U.S. Trustee argued that the bankruptcy code, which limits joint filings to legal “spouses,” must be interpreted in line with DOMA. Snyder agreed with the Trustee’s arguments.

The U.S. has no international obligations to recognize marriages from other nations, but generally does so unless they violate established public policy. In this case, the court found, federal public policy was declared by Congress when it passed DOMA in 1996. Lee Kandu claimed that DOMA’s federal definition of marriage is itself unconstitutional, and that her marriage should be recognized by the Bankruptcy Court as a matter of constitutional law.

One of Kandu’s arguments was that the DOMA’s definition of marriage violated the Tenth Amendment, which reserves to the states all powers not expressly given the federal government. Prior to DOMA, the federal government had typically recognized any marriage sanctioned in a couple’s home state. But Snyder found that the federal government has a legitimate interest in defining marriage for purposes of federal law that does not violate the federalism principles of the Tenth Amendment. He also noted that Washington State has enacted its own DOMA, thus adopting a policy consistent with the federal definition.

Kandu’s most important claim was made under the Fifth Amendment, which provides that no person shall “be deprived of life, liberty, or property, without due process of law.”

The only previous consideration by the Supreme Court of same-sex marriage came in a 1972, Baker v. Nelson, in which a gay couple challenged Minnesota’s denial of marriage rights based on the due process language of the 14th Amendment, adopted after the Civil War to ensure that state laws do not infringe on guaranteed federal rights. Without hearing oral arguments or accepting full briefing, the Court affirmed the Minnesota high court, ruling that the appeal did not present a “substantial federal constitutional question.”

Kandu looked to the Fifth Amendment, rather than the 14th, arguing that it protects the right of same-sex couples to marry, and is violated by DOMA’s definition of marriage. She relied heavily on the Supreme Court’s decisions in 1996 striking down Colorado’s anti-gay Amendment 2 (Romer v. Evans) and in 2003 overturning sodomy laws (Lawrence v. Texas), which appear to establish that gay people have full rights of U.S. citizenship, including constitutional protection for their liberty and equal protection of the laws.

Snyder accepted the premise that the 1972 Baker decision was no longer binding given the more recent rulings Kandu cited. However, the Lawrence ruling has not generally translated into victories for gay litigants in other cases. A federal appeals court in Atlanta found the sodomy ruling to be essentially irrelevant to the question whether Florida could ban gay people from adopting children, and a few weeks ago the same court found that it did not establish a fundamental federal right to sexual privacy, in the Alabama sex toys case. Several courts have rejected the argument that same-sex couples have a right to marry by virtue of the Lawrence decision, noting that the Court specifically stated that it was not deciding the marriage question.

Based on these rulings, Snyder found that as a federal bankruptcy judge, he was not in a position to declare any new fundamental federal rights. Looking back to DOMA’s passage in the wake of a Hawaiian state court ruling the seemed to foretell same-sex marriage in that state, Snyder found that it was rational for Congress to seek uniformity in eligibility for federal benefits, and also to restrict federal rights only to traditionally married couples, seen as the most desirable families to conceive and raise children.

In considering Snyder’s ruling, one must keep in mind that bankruptcy judges have even less authority as constitutional decision-makers than federal district judges. As judges of limited and specialized jurisdiction, they are unlikely to strike out in bold new directions. That is a role for the federal appellate courts, and it will be interesting to see whether Kandu’s case is appealed within the federal court system.

Kandu’s situation would certainly present a sympathetic vehicle for a challenge to DOMA, though it seems unlikely that the Supreme Court would necessarily grant review to the first lower court case that rejects a constitutional challenge to the law.

Completely absent from the court’s opinion was any flexibility in the face of the poignant human issues in this case. Lee Kandu told the Associated Press in an interview published on August 20, “The people who came up with the Defense of Marriage Act, basically have been punishing us for who we are. I feel like we have been tried and convicted and as a punishment they are taking away our rights. It’s just not fair.”

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