June 15, 2011 in Nation/World

Judicial panel rules against marriage ban on gay couples

Paul Elias Associated Press
 
California ruling

SAN FRANCISCO - A federal judge’s refusal Tuesday to invalidate last year’s ruling against Proposition 8 established for the first time that gay judges may decide gay rights cases without having to defend their impartiality.

U.S. District Chief Judge James Ware ruled that retired Judge Vaughn R. Walker, 67, who is openly gay, was not required to have removed himself from the same-sex marriage case because he has a long-term partner. “It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware wrote.

Walker ruled in August that Proposition 8 violated federal constitutional rights, a decision that is on hold pending appeal. The case is expected eventually to reach the U.S. Supreme Court.

ProtectMarriage, the sponsors of 2008 ballot measure, had asked Ware to invalidate Walker’s ruling on the grounds he had a personal, undisclosed stake in the case.

SAN FRANCISCO – The country’s largest consumer bankruptcy court has sided with a gay couple seeking to file a joint bankruptcy petition, taking the extraordinary step of deciding the federal law prohibiting same-sex marriages is unconstitutional.

The Los Angeles-based federal court made the decision Monday in the case of Gene Balas and Carlos Morales, who wed during the 2008 window when same-sex marriage was briefly legal in California.

The ruling is the first such attack of the Defense of Marriage Act in bankruptcy court, and adds to the building pressure on the Obama administration to make good on a February pledge to stop defending the law in court.

“It is hurtful to hear my own government say that my marriage is not valid for purposes of federal law,” Balas said in a court filing.

Balas said he was laid off from his $200,000-a-year job in the financial industry in March 2009. The couple said they share all income and expenses.

“All the property that either of us owns is community property, and all of our debts are community debts,” said Morales, who has spent most of the relationship unemployed. “We have no prenuptial agreement, postnuptial agreement or transmutation agreement.”

The ruling written by U.S. Bankruptcy Judge Thomas Donovan wasn’t the first blow to the Defense of Marriage Act in federal court. That came last year when a federal judge in Boston declared the law an unconstitutional violation of equal protection guarantees. Two other bankruptcy courts have also rejected administration attempts to dismiss joint filings made by same-sex couples, but neither of those rulings addressed the constitutionality of the act.

Attorney General Eric Holder said in February that the U.S. Department of Justice would “remain parties to the cases and continue to represent the interests of the United States throughout the litigation” despite the administration’s view that the law was unconstitutional.

After the administration’s announcement, a House of Representatives committee hired former Solicitor General Paul Clement to defend the Defense of Marriage Act against federal court challenges.

In May, U.S. Trustee Peter Anderson, who represents the federal government’s bankruptcy interests in Southern California, told the judge the Obama administration opposed the gay couple’s petition so it could give the Congressional committee a chance to join the case in support of the Defense of Marriage Act.

Justice Department spokeswoman Tracy Schmaler declined to comment.

The judge noted that the committee didn’t respond to requests to join the case.

Brendan Buck, a spokesman for House speaker John Boehner, said the committee can’t afford to respond to every legal challenge to DOMA.

“Bankruptcy cases are unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided,” Buck said. “Obviously, we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”

Clement and the committee have responded to at least seven separate legal challenges across the country, lawyers said.

Without hearing a detailed defense of the 15-year-old law, Judge Donovan ruled the Defense of Marriage Act violates the couple’s equal protection guarantees. He added there is “no valid governmental basis for DOMA.”

Nineteen of Donovan’s 23 colleagues on the Los Angeles bankruptcy court signed the opinion. The couple’s lawyer, Robert Pfister, said that’s significant because it shows an overwhelming majority of that court is prepared to rule similarly.

“Litigating constitutional issues takes a lot of time and money,” Pfister said. “To have 20 judges sign on sends a strong message that almost the entire bench has decided this important constitutional issue.”

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