Judge Rejects DOMA As Bar To Joint Bankruptcy Filing By Gay Couple

By Big Tent Democrat, Section Law Related
Posted on Fri May 13, 2011 at 12:39:53 PM EST
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In In re Sommers and Caggano, Bankruptcy Judge (in the Southern District of New York) Cecilia Morris denied the United States Trustee's motion to dismiss the joint bankruptcy petition of a gay couple, who were married in Vermont, on DOMA grounds. The judge wrote:

[T]he constitutionality of DOMA has been questioned by two cases filed in the district courts of this Circuit. [cites omitted] The Department of Justice also concluded that DOMA would not withstand constitutional analysis under heightened scrutiny. See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) [. . .] (containing as an attachment Letter from Eric H. Holder, Jr. to John A. Boehner (Feb. 23, 2011)). In Windsor v. United States, which is currently pending in the Southern District of New York, the Assistant Attorney General filed a letter stating that "heightened scrutiny is the appropriate standard of review for classifications of sexual orientation" and that "[s]ection 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that the Department will cease its defense of Section 3 in such cases." See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) (Docket No. 10), Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.).

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The Court will not conduct its own constitutional analysis of the Act since the issue is not before the Court and has not been briefed by the parties. Nevertheless, "[t]he court has substantial discretion in ruling on a motion to dismiss under section 707(a), and in exercising that discretion must consider any extenuating circumstances, as well as the interests of the various parties." Collier on Bankruptcy P 707.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (emphasis added); see also In re Atlas Supply Corp., 857 F.2d 1061 (5th Cir. 1988) (stating that a court may be guided by equitable principals in determining a motion to dismiss). One extenuating circumstance that the Court finds relevant is that the United States Department of Justice, acting under the instruction of the Attorney General and the President of the United States, argues that "DOMA may not be constitutionally applied to same-sex couples" and has stopped defending the law in cases pending in this Circuit. See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) (Docket No. 10), Windsor v. United States, No. 1:10-cv8435 (S.D.N.Y.); see also Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). In this case, the United States Trustee, who is appointed by the Attorney General pursuant to 28 U.S.C. §581, appears to defend the law and yet has offered n