Gender & Sexuality Law Blog

Yesterday the U.S. Bankruptcy Court for the Central District of California released an opinion finding Section 3 of the Defense of Marriage Act unconstitutional in a bankruptcy filing brought by a married same-sex couple, Gene Douglas Balas and Carlos A. Morales.  Balas and Morales had been married in California during the window when marriages of same-sex couples were legal, and filed for bankruptcy on Feb. 24, one day after Attorney General Eric Holder announced the Obama Administration’s position that Section 3 of DOMA was unconstitutional.

The Bankruptcy Court relied heavily on AG Holder’s letter explaining the grounds upon which the Administration took the view that Section 3 of DOMA was unconstitutional and that sexual orientation-based discrimination be granted the highest level of constitutional scrutiny.

Two things are worth noting about the case, apart from the finding that DOMA unconstitutionally discriminates on the basis of sexual orientation:

1. 20 of the judges sitting on the bankruptcy court for the central district of California signed the decision – signaling that an overwhelming majority of the judges in that district are in agreement with the outcome of the case;

2. The House Bipartisan Legal Advisory Group, which hired Paul Clement to serve as their counsel in the defense of DOMA after the Administration announced that it would no longer defend the law in court, made a last minute motion to intervene in the case, yet never followed up with papers doing so.  My guess is that Clement and his crack legal team over at Bancroft have their hands full with defending DOMA in numerous other cases and simply weren’t equipped to take on another matter.  This is one of the implications of Clement’s representation of DOMA moving from King and Spalding (a large firm) to the Bancroft firm (a small, boutique firm) – Bancroft simply doesn’t have the staff to “man up” a full legal team in all of the DOMA challenges underway.