U.S. Atty. Gen. Eric Holder, who considers the Defense of Marriage Act unconstitutional,… (Susan Walsh, Associated…)
The most important recent advance on the marriage equality front didn't occur in the halls of Congress or a state legislature, or the chambers of the federal appellate court pondering the legal challenge to Proposition 8.
It occurred, of all places, in U.S. Bankruptcy Court in Los Angeles.
It was there that 20 U.S. bankruptcy judges put their signatures to a ringing declaration that the Defense of Marriage Act, or DOMA — that 1996 federal law declaring that only marriage between a man and a woman was legally valid in federal eyes — was unconstitutional as a violation of the 5th Amendment's guarantee of equal protection.
What makes the decision by Judge Thomas Donovan significant is that it underscores how real life — in this particular, the march of economics in the real world — often makes the tortured debating points of politicians irrelevant.
Same-sex couples who have made emotionally and financially binding commitments to one another are part of the fabric of American reality today, and efforts to artificially undo those commitments are doomed to fail.
That's a testament to the wisdom of pushing social change by a series of small steps. It summons Lyndon Johnson's conviction that the most important measure of the civil rights era was the Voting Rights Act. As he is said to have counseled civil rights leaders, once black voters were guaranteed access to the voting booth in the South, the habitual evils of discrimination would begin to erode under the pressure of black political enfranchisement.
You can debate whether the process has taken longer than LBJ expected, or if it is complete yet, but you can't deny that he put his finger on a powerful rule of political engagement.
By the same token, now that same-sex couples have become integrated into the economic life of the country, the points of discrimination against them, petty or grand, have begun to melt away. Donovan's ruling moves that process along by certifying their right to redress their economic failings under the umbrella of bankruptcy, like any couple.
Recognition of that fact is spreading. As I write, the New York State Legislature is dickering over a marriage equality bill in its last hours before adjournment. A federal court in California is pondering the constitutionality of our state's ban on gay marriages, Proposition 8.
President Obama and his attorney general, Eric Holder, announced in February that they considered DOMA unconstitutional and would no longer defend it in court; that task has been assumed by lawyers for Congress, who may well appeal Donovan's decision. Bankruptcy judges in New York and Sacramento had previously rejected DOMA-related motions to dismiss same-sex filings, but on narrow grounds.
Gene Balas, 42, a financial analyst, and Carlos Morales, 46, a presentation designer, got married in August 2008 during the roughly six-month period of daylight between the California Supreme Court's invalidating the state's legal ban on same-sex marriage and the passage of Proposition 8, which trumped the court by placing the ban in the state constitution. Their personal finances undone by medical bills and the loss of Balas' job in 2009 during the financial crisis, they filed jointly for bankruptcy in February this year.
"Carlos and I are married in every sense of the word," Balas explained to me last week. "Our finances are joint, we're authorized to make medical decisions for one another, we're the beneficiaries of each others' life insurance. It's completely impossible to separate our finances apart, and filing as individuals would make absolutely no sense."
Soon after they filed, the U.S. Trustee in Los Angeles — the federal official charged with helping to administer bankruptcy cases — moved to toss their joint filing on the grounds that DOMA prohibited bankruptcy courts from recognizing same-sex couples as spouses. That's what gave the bankruptcy judges an opening to throw not the bankruptcy filing, but DOMA, onto the rubbish heap.
No one should be surprised that the Defense of Marriage Act makes a hash of bankruptcy law. Enacted in a burst of bipartisan poltroonery in 1996, DOMA was drafted by the twice-divorced Rep. Bob Barr (R-Ga.) and voted in by a huge majority that included such accused or admitted adulterers as Robert Livingston (R-La.) and Gary Condit (D-Ceres). DOMA was signed into law by (wait for it) … Bill Clinton. For these characters to pose as defenders of marriage was tantamount to their waving the American flag while taking payoffs from the government of North Korea.
Within five months of DOMA's enactment, the General Accounting Office identified 1,049 federal laws that were affected by its definition of marital status. These included laws governing Social Security, which incorporates spousal privileges; child support enforcement; housing assistance; and even taxation, in which distinctions between married and unmarried filers were "pervasive" but the terms "husband" and "wife" were undefined.