Legal Battles Involving Same-Sex Marriage

Post date: Jun 28, 2011 4:01:50 PM

Post by John Bowen

(1) Proposition 8 Judge

As everyone surely knows by now, Proposition 8 is a ban on same-sex marriage in California that was recently declared unconstitutional by a federal district court (currently being appealed). Proponents of Prop. 8 challenged that ruling because the judge who issued it, former Judge Vaughn Walker, is gay and in a long term relationship. They claimed that he was biased (and should have recused himself) because he would personally benefit if gay marriage was allowed. This argument was grasping at straws and, fortunately, did not persuade Judge Ware. If this logic were used to force a gay judge to recuse himself in this case, then, using the same logic, a black judge would have to recuse himself when the case involved discrimination against blacks, or a female judge would have to recuse herself from a sexual harassment claim case and so on. We expect our judges to be objective, whether the ruling will affect them or not. There are limits though. For example, a judge should recuse herself from a case where the result will have a direct financial impact (such as owning stock in a company who is a party to the suit). This accusation is just insulting both to Judge Walker and to other judges who know how to do their jobs.

(2) Bankruptcy in California—DOMA

While Prop. 8 is a California state law banning gay marriage, Section 3 of the Defense of Marriage Act (DOMA), is federal law that says the federal government only recognizes marriages between a man and a woman. Unlike Prop. 8, this is not a ban on same-sex marriage. Whether two people can get married is a state issue, so the federal government does not really have a say. Why does it matter then? Well bankruptcy is governed by federal law so a legally married same-sex couple (under state law), according to DOMA, would not be able to file a joint bankruptcy because they are not married in the eyes of the federal government.

But on June 13th, the U.S. Bankruptcy Court for the Central District of California declared Section 3 of DOMA unconstitutional on equal protection grounds. So those couples who were legally married in the handful of states that allow it (including California before Prop 8) can now file bankruptcy together How romantic! Although this decision only applies to a small number of bankruptcy cases, it is another sign of things to come: the eventual repeal (or complete lack of enforcement) of DOMA, at least in my opinion.

(3) New York Same-Sex Marriage

New York may become the next (6th) state to legalize same-sex marriage. Governor Andrew Cuomo submitted the bill and the state’s Senate will vote on it this Friday (see editor's note below). As it stands now they are just one vote short with 31 of 62 Senators committed to vote in favor of the bill. Proponents of the bill are optimistic that at least one more of their colleagues will vote with them, making New York the most populated state with legalized gay marriage.

All in all it seems like this has been a good week for gay rights. If the 9th Circuit (or the Supreme Court) upholds the ruling on Prop. 8, and DOMA is systematically unenforced or declared unconstitutional, and New York legalizes gay marriage, it will be hard for those opposed to gay marriage to keep more dominoes from falling.

Editor's Note: John wrote this post on June 15th but I failed to post it until today. I've been busy. Since the drafting of this article, NY has officially legalized same-sex marriage. Looks like his prediction was right.