Gay Marriage Legal in California. Can Gay Couples Now File A Joint Petition?
By Michael G. Doan, San Diego Bankruptcy Attorney on Jun 8, 2008 in Bankruptcy Myths, Bankruptcy Practice and Procedure, California, Chapter 11 Bankruptcy, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, Featured, General Bankruptcy Information, Lawyer to Lawyer, Marriage and Debt
On May 15, 2008, the California Supreme Court struck down a ban on Gay Marriages and ruled that the union of a Gay Couple in Matrimony will be recognized no differently than a heterosexual marriage. Starting June 17, 2008, gay couples can officially marry in California, even if they do not live there.
Moreover, all states must now recognize California’s Gay Marriages since the U.S. Constitution’s FULL FAITH AND CREDIT CLAUSE (Article IV, Section 1) requires states to recognize the public acts, records, and judicial proceedings of every other state.
At first blush it may seem that this new law and the Bankruptcy Code will now allow same-sex marriage couples to file a joint petition, since 11 USC 302 of the Bankruptcy Code now specifically provides:
(a) 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. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter.
Clearly, the Bankruptcy Code refers to a debtor and such individual’s spouse and the new decision in California now officiates the married partner to be deemed a “spouse.” So does this mean that same-sex married couples can now file Joint Bankruptcy Petitions throughout the United State no differently than all the other Joint Petitions filed by heterosexual spouses?
No! The problem lies within another Federal Law called the Defense of Marriage Act.(DOMA) (Pub. L. 104-199, Sept. 21, 1996, 110 Stat. 2419) enacted in 1996, which denies federal recognition of same-sex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other states.
This denial of federal recognition to same-sex marriages applies to all acts of Congress, which necessarily include the Bankruptcy Code. So while a gay couple might be entitled to state benefits arising from this new recognition of their marriage, there is no such federal recognition. In fact, this new law does nothing to create any new federal rights such as those under social security, veteran’s benefits, military benefits, immigration, taxation, etc. In fact, there are over 1130 such rights as of 2004.
This should come as no surprise. In 2004, the Bankruptcy Court in In re Kandu, 315 B.R. 123, 2004 Bankr. LEXIS 1233, Bankr. L. Rep. (CCH) P80145 (Bankr. W.D. Wash. 2004) dealt with the same issue in dismissing a joint case filed by a same-sex couple whose marriage was legal under Canadian Law. In that case, the Bankruptcy Court dismissed the case ruling:
The language of the Defense of Marriage Act is clear and unambiguous. It states that, in all acts of Congress, the term “marriage” means only the legal union between one man and one woman, and the word “spouse” refers only to a person of the opposite sex that is a husband or wife.
So what’s the bottom line? Even with California’s new law allowing same-sex marriage and requirement that all states must recognize marriage rights to anyone getting married in California, they are not allowed to file a JOINT PETITION, but must instead filed TWO SEPARATE BANKRUPTCY PETITIONS.
Written by Michael G. Doan
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