Friday, July 8, 2011

Government will not appeal bankruptcy judges' decision that DOMA Unconstitutional

Last month 20 bankruptcy judges in California signed an opinion that concluded that section 3 of DOMA - - - the Defense of Marriage Act - - -was unconstitutional.  Thus, a same-sex married couple (under state law) could proceed with their bankruptcy action as a married couple (under federal law).

While the bankruptcy trustee initially appealed the order, today the trustee moved to withdraw the appeal.


In a pleading filed today, the trustee represented that not only will the Department of Justice not defend the constitutionality of DOMA, but that

The Department of Justice has advised the House Bipartisan Legal Advisory Group (the "BLAG") of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA.  The BLAG is actively participating in litigation in several other courts . . .

Thus, the trustee "has determined that it is not a necessary or appropriate expenditure" of resources to continue to litigate the appeal.

The bankruptcy judges' opinion, unappealed, is yet another rupture in the constitutional status of DOMA.


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