Posted by Darth Venomous @ 15:18
Okay, Denizens, I’m getting a report from this blog that the Defense of Marriage Act has been declared unconstitutional…by a bankruptcy court.
This is the only report I’ve seen thus far – Prof. Jacobson doesn’t have it; Michelle doesn’t have it…hell, Drudge doesn’t even have it. Nor do I know the blogger very well, truth be told.
48-hour rule is most assuredly in effect. Stay tuned.
(JDSUPRA) Debtors were legally married under California law prior to the passing of Proposition 8. They filed a joint petition for relief under Chapter 13 of the Bankruptcy Code and the United States Trustee moved to dismiss. In a well reasoned 26 page decision
Well, I dunno how “well-reasoned” it is to go against the will of a majority consisting of seven million California voters – but hey, whatever floats the guy’s boat, hm?
the United States Bankruptcy Court for the Central District of California, Judge Thomas Donovan presiding, held, among other things, that DOMA did not meet the heightened scrutiny standard and would not prevent these two debtors from filing a joint petition and seeking relief as joint debtors under Title 11.
The Leonard article is a lot more in-depth, and is worth the time to read.
What fascinates me, though, is this blurb:
Perhaps reacting to the repetitive nature of this issue, Judge Donovan and his colleagues decided to go the extra step and tackle the DOMA issue head-on.
They produced a scholarly opinion, in which they gave great weight to Attorney General Eric Holder’s February 23, 2011, letter to House Speaker John Boehner setting out the Justice Department’s analysis of the constitutionality of Section 3 of DOMA. In that letter, Holder contended that discrimination based on sexual orientation merits “heightened scrutiny,” a standard of judicial review under which the challenged discriminatory law is presumed unconstitutional unless the government presents very strong policy justifications for it.
Furthermore, Holder opined that Section 3 cannot survive that standard of judicial review. President Obama, a former constitutional law professor at the University of Chicago, agreed with Holder’s analysis, leading the Justice Department to announce that it would no longer defend Section 3 against constitutional challenges, leaving it up to Congress to decide whether to intervene to defend the statute in particular cases.
However, until Congress repeals Section 3 or an appellate court definitively declares it unconstitutional, the Justice Department is bound to continue enforcing it, thus these repeated motions by the U.S. Trustee to reject joint bankruptcy petitions by married same-sex couples. (Emphasis mine. -Venomous)
So it looks as if, in the absence of a clear, definitive appellate victory by either side in the matter of DOMA, this bankruptcy court decided to be proactive and do it its own self.
Now, I’m no lawyer, nor do I play one on TV – but it seems to me that a bankruptcy court has absolutely zero jurisdiction over laws passed by any legislative body, let alone the highest one in the United States, no matter how many fellow bankrupcty judges sign off on it.
This is akin (though certainly not identical) to black-robed tyrant Maryann Sumi attempting to hijack the legislative process from the Wisconsin Legislature and assume a jurisdiction she clearly does not have.
An action which, by the way, got its ass kicked today.
Tyrant Donovan, et. al…take note.
2 Comments to “DOMA declared unconstitutional…by whom??? (UPDATED, w’addl. links)”
Write a comment
You need to login, m'liege.