June 29, 2011 at 10:48 am EDT | by Phil Reese
DOJ to file appeal of Bankruptcy court’s DOMA ruling

In a surprising move, the United States Trustee for California — an agent representing the United States and the Department of Justice in Bankruptcy court — has appealed a ruling in the United States Bankruptcy Court of the Central District of California which found Section 3 of the Defense of Marriage Act unconstitutional.

The June 15 ruling by U.S. Bankruptcy Court judge, Thomas Donovan, in the largest Bankruptcy Court in the country, found unconstitutional the 1996 law which bars Federal recognition of same-sex unions, even where such unions are legal. The ruling added yet another Federal court victory to a list of several such victories against the law. The ruling was in response to an intervention by the U.S. Trustee into a case in which a same-sex couple legally married in California in 2008 jointly filed for Bankruptcy.

Prior to the ruling, the U.S. Trustee had initially argued the Chapter 13 filing be thrown out, and that Gene Balas and Carlos Morales file separately as DOMA dictates. The Judge disagreed with the Justice Department, and decided to allow the couple to file jointly. The ruling was given even more weight when an unprecedented 19 of the other 23 judges at the court signed on to the decision.

The decision by the Justice Department to continue to defend the law in court comes as a shock after U.S. Attorney General, Eric Holder, announced in February that the DOJ. saw the law as unconstitutional and would no longer defend it in court.

According to The Daily Kos, the filing by the U.S. Trustee addressed Justice’s policy to not defend DOMA:

“Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.”

Donovan’s June 15 decision cited the President’s stated position that discrimination based on sexual orientation deserves “heightened scrutiny,” a legal system test of the merit of a law that limits the rights of a specific group of people. The President himself has stated that the Defense of Marriage Act’s section 3 — barring Federal recognition of specific marriages being performed in a growing number of states — fails this test. Donovan and 19 other judges in the Central District of California agreed with this premise in their decision to throw out the Justice Department’s challenge to the filing.


  • You call this a decision by the DOJ, but the Trustee and the DOJ are not quite the same thing. Unless you know the precise relationship, I’d hold off the “surprising” lingo.

  • The U.S. Trustee is a part of DOJ. “The United States Trustee Program is the component of the Department of Justice responsible for overseeing the administration of bankruptcy cases and private trustees under 28 U.S.C. § 586 and 11 U.S.C. § 101, et seq.” http://www.justice.gov/ust/

  • Turns out this was just pro forma paperwork. The DOJ is not appealing, but it asks for the right to so that the BLAG, should it change its mind, can appeal. It was explained at the White House last week.

    Most of the comments at DailyKos, where this originated, figured that out pretty quickly. Maybe a news story should get comments from people involved?

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