More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(a) of the Bankruptcy Code

American Bankruptcy Law Journal, Forthcoming

44 Pages Posted: 26 Sep 2011

See all articles by Susan E. Hauser

Susan E. Hauser

North Carolina Central University (NCCU) - School of Law

Date Written: August 8, 2011


Section 302(a) of the Bankruptcy Code allows an individual debtor and his or her “spouse” to commence a joint bankruptcy case by filing a single bankruptcy petition. The term spouse is not defined in the Bankruptcy Code; however, since 1996, section 3 of the Defense of Marriage Act (“DOMA”) has defined a spouse for purposes of federal law as “a person of the opposite sex who is a husband or a wife.” Although no state permitted same-sex couples to marry when DOMA was adopted in 1996, six states currently permit same-sex couples to marry. A seventh state, California, recognizes the marriages of 18,000 same-sex couples performed during a five month period in 2008. In total, approximately 11% of the United States population now lives in a state where same-sex marriage is a reality under state law.

When couples marry, they receive an expansive package of government-sanctioned rights and entitlements that provide them with substantial economic benefits. DOMA blocks same-sex couples from receiving the federal components of this package, creating two classes of married couples who are afforded very different economic treatment under the law. The right to file a joint bankruptcy petition under § 302(a) is one of the many economic benefits provided to married couples by federal law. In 2010 and 2011, bankruptcy courts in New York and California came face to face with the conflict between state and federal definitions of marriage when three married same-sex couples used § 302(a) to file joint bankruptcy petitions. Only one of these cases, In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011), placed the constitutionality of DOMA directly before the court and, in a strongly worded opinion joined by 20 of the 24 judges on the court, Balas holds DOMA unconstitutional as applied to § 302(a).

This article contends that Balas was properly decided, that DOMA is, in fact, unconstitutional as applied to § 302(a), and that a married same-sex couple therefore has the right to file a joint petition in bankruptcy. After discussing the history and mechanics of § 302(a), the article examines the current status of same-sex marriage in the United States and describes the constitutional framework that applies when the government seeks to discriminate on the basis of sexual orientation. The final part of the article analyzes the constitutionality of DOMA as applied to § 302(a). I conclude that heightened scrutiny should apply to classifications based on sexual orientation, and that DOMA, as applied to § 302(a), is not rationally related to any legitimate government interest. Accordingly, DOMA violates both equal protection and due process in this context.

Keywords: bankruptcy, joint filing, DOMA, same-sex marriage, equal protection, due process

JEL Classification: J7, J70, J71, J78, K29

Suggested Citation

Hauser, Susan E., More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(a) of the Bankruptcy Code (August 8, 2011). American Bankruptcy Law Journal, Forthcoming, Available at SSRN:

Susan E. Hauser (Contact Author)

North Carolina Central University (NCCU) - School of Law ( email )

640 Nelson St.
Durham, NC 27707
United States

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