Page 26 - John Hundley 2011

If Somers thus was equivocal, Balas was not, characterizing the case as “about equality, regardless of
gender or sexual orientation, for two people”. The 20 signatory judges gave DOMA a constitutional
review and found it wanting.

In Balas, a gay couple, married under former California law, filed for protection under Chapter 13 of
the Bankruptcy Code (11 U.S.C. §§ 1301 et seq.). The UST moved to dismiss for “cause” under 11
U.S.C. § 1307(c). Again, his DOMA challenge bore little resemblance to the examples of “cause” stated
in the statute. Again, however, the court did not rely upon the novelty of the challenge to preclude it.

Instead, the court proceeded to an equal protection analysis (the Equal Protection Clause of the 14th
Amendment (“EPC”) having been held applicable to the federal government under the Due Process
Clause of the 5th Amendment in numerous prior cases). Agreeing with a statement by Attorney General
Eric Holder that classifications based on sexual orientation should be subject to heightened judicial
scrutiny under the EPC, the court found DOMA wanting under heightened scrutiny for several reasons.

First, under heightened scrutiny, a court must examine “actual [governmental] purposes, not
rationalizations for actions in fact differently grounded”. The court found that the legislative record
underlying DOMA is filled with “stereotype-based thinking and animus the Equal Protection Clause is
designed to guard against.”

Second, the court said that under heightened scrutiny the government was obligated to demonstrate
that a justification exists for application of the challenged policy in the particular case. The court
found no valid governmental purpose to be advanced by dismissal of the bankruptcy case or severance of
the debtors before it.

Third, the court found that sexual orientation was an appropriate classification to be given heightened
scrutiny. Treating sexual orientation as a “defining and immutable characteristic,” causing lesbians and
gays to face “significant political obstacles . . . irrelevant to an individual’s ability to society,” the court said
homosexuality should be treated like other “suspect classifications” which are accorded heightened
scrutiny by the courts.

Fourth, the court held that DOMA could not survive even the lowest
standard of review imposed under the EPC – that the challenged policy have
some “rational basis” to a permissible governmental purpose. “This court
cannot conclude from the evidence or the record in this case that any
valid governmental interest is advanced by DOMA as applied to the
Debtors”, the court ruled.

Accordingly, the motion to dismiss the Chapter 13 case was denied.

Not all bankruptcy courts have been so inhospitable to the act. In re Kandu, 315 B.R. 123 (Bankr.
W.D. Wash. 2004), enforced it in the case of a lesbian couple married under British Columbia law.
Although much of the opinion’s reasoning would support DOMA in any case, Kandu can be distinguished
because it fails to raise the issues of federalism which arise when a court is asked to use DOMA to
disregard a state’s law.

Balas and Somers are attracting considerable attention. Look for more cases to raise these issues as
the nation’s current economic problems continue for persons of all sexual orientations.

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