Bankruptcy Law and Same Sex Couples

Bankruptcy Law and Same Sex Couples

DOES FEDERAL BANKRUPTCY LAW REFLECT ANIMUS TOWARDS SAME SEX COUPLES?

Same sex couples must file independently, complicating the filing and doubling the cost.The case of In re Kandu, heard in the Western District of Washington, reflects this reality. The court ruled that The Defense of Marriage Act, provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, … the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7. The controlling statute, or Act of Congress, in this case is 11 U.S.C. § 302 that governs joint cases for bankruptcy filings. This statute provides that, “[a] joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse.” 11 U.S.C. § 302(a).The Kandu’s contended that DOMA, as applied to 11 U.S.C. § 302, is unconstitutional. The Kandu’s specifically argues that excluding same-sex couples from recognition under 11 U.S.C. § 302 violates the Tenth Amendment, the principles of comity, and the Fourth and Fifth Amendments to the U.S. Constitution. The Kandu’s has not challenged DOMA under the Full Faith and Credit Clause, Article TV, Section I of the U.S. Constitution.DOMA was signed by President Clinton in 1996. The federal courts were and are unaware of any published opinion by a federal court addressing its constitutionality. Thus, the arguments presented by the Kandu’s as to DOMA’s constitutionality are matters of first impression. The issues concerning same-sex marriage, however, are not novel. The constitutional issues, as well as arguments set forth by the parties, have been the subject of recent state court decisions, as well as debate in Congress, state legislatures, and in the academic world.The Kandu Court concludes that DOMA does not violate the principles of comity, or the Fourth, Fifth, or Tenth Amendments to the U.S. Constitution. The Debtors’ petition in bankruptcy shall be dismissed on September 3, 2004, unless the Debtors have filed a motion to bifurcate prior to said date.

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