The antigay Defense of Marriage Act (DOMA) withstood its first constitutional challenge in a federal court. It came in an Aug. 17 decision handed down in Tacoma, Wash., by U.S. Bankruptcy Judge Paul B. Snyder.
Two American lesbians, Lee Kandu and Ann C. Kandu, married in August 2003 in British Columbia, Canada, when that province began to allow same-sex unions. They subsequently filed a joint petition for bankruptcy in October 2003, and Ann C. Kandu died of uterine cancer in March 2004.
Their suit challenged the constitutionality of DOMA in that it violates 'the principles of comity, and the Fourth and Fifth Amendments to the U.S. Constitution.'
Judge Snyder focused on the central question of whether the court should recognize their marriage at the time of the filing as applicable to the Bankruptcy Code.
He held that 'DOMA is consistent with the principles articulated by the Tenth Amendment' because the language applies only for federal purposes and does not attempt to restrict state's authority to issue marriage licenses.
'The Debtor's assertion that comity is mandatory is simply not supported by case law,' Snyder wrote. 'The Supreme Court has concluded, in the event of a conflict of laws between nations, a court must prefer the laws of its own nation.'
Opponents of gay marriage have argued that the 1971 Baker v. Nelson decision is the governing federal ruling on the subject. In that decision the Minnesota Supreme Court found that prohibiting same-sex marriage was not unconstitutional. The U.S. Supreme Court declined to take the case and under rules in effect at that time but since changed, it stood as legal precedent.
Judge Snyder said that Baker was not legally binding because the case involved state and not federal law. He did concede that recent decisions, such as the Lawrence case striking down state sodomy laws, recognized an increased zone of privacy for gay Americans, and may point in another direction.
However, he noted, 'A bankruptcy court is a trial court of limited jurisdiction and must be extremely cautious before creating on its own a new fundamental right based on what the Supreme Court might in the future decide.'
'The people who came up with the Defense of Marriage Act basically have been punishing us for who we are. It's just not fair,' Lee Kandu told the Associated Press. She filed the case on her own and intends to appeal the decision.
In Massachusetts on Aug. 19, state judge Carol Ball declined to issue an injunction blocking enforcement of the 1913 state law restricting marriages of out of state residents to the same terms and conditions of their home states.
Ball found 'troubling the timing of the resurrection of the implementation' of the statute, and intimated that it is in violation of at least the spirit of the ruling last year that prohibiting gays to marry is unconstitutional.
But she said that gay advocates seeking the injunction 'failed to show that same-sex couples are being subjected to a different set of rules than are opposite-sex couples.' Town clerks have been told to ask the same questions of all non-resident couples seeking marriage licenses.
Michele Granda was disappointed but not surprised by the decision. She is an attorney with Gay and Lesbian Advocates and Defenders (GLAD), which brought the lawsuit. 'This case is still alive. The trial court will hear further arguments on the merits and the case will be decided on appeal. We're confident of our ultimate success.'
She was encouraged that 'the decision provides us with validation of our core argument that the law violates the spirit of the Goodridge decision and that Massachusetts should not be in the business of discriminating against gay and lesbian families.'