New Jersey LGBT Law

SAN FRANCISCO — The bankruptcy case that became one of many battlegrounds in the fight over the Defense of Marriage Act has come to an end, with the Justice Department and congressional Republicans bowing out of the fight.

The latest filing leaves in place a rare order signed by 20 bankruptcy judges in the Central District declaring DOMA unconstitutional and allowing a married gay couple to file bankruptcy jointly.

While it's a swift and tidy win for the couple, it's also seen as a slightly disappointing outcome to a case their lawyer saw as prime for Supreme Court review.

I have mixed feelings, Culver City bankruptcy lawyer Peter Lively said today. I'm happy my clients are securely in a case because it's stressful to live without certainty, and I also believe this issue will work its way up.

The government's Wednesday filing in the case of Lively's clients, Gene Balas and Carlos Morales, said DOJ wouldn't appeal further in light of the Obama administration's position that the key provision of DOMA is unconstitutional. And it says the congressional Republicans defending DOMA, formally called the Bipartisan Legal Advisory Group, has decided to put its resources into other DOMA challenges.

The filing signals a broader Justice Department policy change, a department spokesman confirmed. The government isn't going to fight gay couples in other bankruptcy courts either, which will allow legally married gay debtors across the country to file joint petitions.

It's almost effectively a Supreme Court case because it effectively changes the policy of the whole country, said Robert Pfister, a partner at the Los Angeles bankruptcy firm Klee, Tuchin, Bogdanoff & Stern, who volunteered in the bankruptcy case. That's amazing.

Lively, a solo practitioner, and Pfister said they see the decision by the Republicans, represented by former Solicitor General Paul Clement, as tactical. Those who want DOMA upheld, Lively said, would rather take a case to the Supreme Court in which the government is being asked to give something extra, as in spousal health benefits, rather than in a case where there's no cost to the government, like a joint bankruptcy filing.

The apparent end to the DOMA litigation in bankruptcy cases has attention turning back to other challenges to the act, like the case of Karen Golinski, a Ninth Circuit U.S. Court of Appeals staff attorney fighting in the Northern District for spousal health insurance for her wife.

Jon Davidson, a lawyer for Golinski and legal director of Lambda Legal's western regional office, called the outcome in the bankruptcy case a very good result for that couple. He said it's important for gay couples with limited means to be able to file jointly.

But he sees the fights against DOMA in matters involving health care, estate tax and Social Security benefits as being even more compelling. Davidson noted that the Golinski case, as well as other DOMA challenges lingering in federal courts, include significant evidentiary presentations, similar to Perry v. Schwarzenegger, which he says helps strengthen those cases. In Perry, he noted, the judge made factual findings based on expert testimony in rendering the ban on gay marriage unconstitutional. The bankruptcy cases, he said, lack that aspect.