Gay Rights Developments Come Fast and Furious

It's been difficult keeping up the past few days.

On July 1, the Obama Administration took an active role in challenging the constitutionality of the Defense of Marriage Act, filing a brief in the Golinski case arguing that Section 3 of the Act is unconstitutional.  This helped to convince the 9th Circuit panel, which was considering Log Cabin Republicans' motion to lift the stay of District Judge Virginia Phillips' injunction against enforcement of the "don't ask, don't tell" military policy, to lift the stay yesterday. Then this morning the Pentagon announced that even though it is not yet ready to make the certification to Congress preparatory to finally ending that policy, nonetheless it would comply with the court's order, and that notification was being sent to field commanders that the DADT policy is no longer to be enforced.  (At his Gay Pride Reception at the White House last month, President Obama said that certification would be coming "in a matter of weeks, not months," so perhaps this will get done before the end of July.  But it makes little difference now that the Pentagon has signalled acquiescence in the court's order.)  Presumably, once certification is made, the government will move the 9th Circuit to dismiss the appeal. 

As to dismissing appeals, here's another bit of news.  Twenty bankruptcy judges in the most populous federal district, the Central District of California (which includes the Los Angeles metro area) signed an opinion in In re Balas and Morales, rejecting a motion by the U.S. Trustee to dismiss a joint bankruptcy petition filed by a married same-sex couple.  The court's rationale was that Section 3 of DOMA, the basis of the Trustee's motion, was unconstitutional.  The U.S. Trustee filed a motion seeking permission to appeal that ruling.  The Debtors responded to the motion by filing their own motion seeking that the appeal go directly to the 9th Circuit Court of Appeals.  Yesterday, the Trustee filed a new motion, seeking to withdraw its appeal.   It seems that as an official of the Justice Department, the Trustee would be bound to agree with the bankruptcy judges that Section 3 of DOMA is unconstitutional, so if the limitation on joint filing is to be defended, it would have to be done by Paul Clement, the lawyer hired by the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, to defend DOMA.  Clement has been focusing on the 1st Circuit appeal of Gill, and the pending cases in Connecticut (Pedersen) and New York (Windsor), and BLAG indicated to the Trustee that they did not want Clement to get involved in appealing bankruptcy court rulings.  So the Trustee has moved to withdraw.

Here's the fun part.  At the end of the motion filed by Jill M. Sturtevant on behalf of U.S. Trustee Peter c. Anderson, the Trustee relates that the Debtors were requested to "agree to the withdrawal of the appeal, but Debtors refused."  Interesting.  The Debtors won the motion, so one would think they would be happy that the appeal has been withdrawn.  But withdrawal of the appeal undermines their chance to get the issue up to the 9th Circuit, which perhaps they thought would be a good way to get their challenge to DOMA up to the Supreme Court.  Now that seems unlikely.

And now for some totally run-of-the-mill news:  on July 5 Gov. Dan Malloy of Connecticut signed into law a measure amending the state's law against discrimination to add "gender identity" as a forbidden ground, making Connecticut the 15th state to do so.  New York is once again a distant follower when it comes to civil rights progress at the state level, as we can't seem to get our Gender Identity or Expression Discrimination Act to the finish line.

Here's some confusion yet to be resolved under New York's tax law as a result of the passage of the Marriage Equality Act.  The Tax Law provides that individual income tax filers use their federal filing status for their state return.  Since the federal government does not recognize same-sex marriages and will reject joint-filing by same-sex married couples, such couples must use the "single" filing status and file separate federal returns.  Must they, or may they, continue to file their state tax returns as "single"?  Or, once married under New York law, must they file their state tax returns as married and, if so, jointly or individually.  There is another provision of New York Tax Law stating that if a "husband and wife" file their federal taxes individually, then they must file their New York State taxes as married filing individually (meaning they will be held jointly and severally liable for the entire cumulative tax liability they bear as a couple).   That is, when these NY State Tax Law provisions are viewed together, they seem to preclude married same-sex couples in New York from filing their state taxes jointly.  And yet the Marriage Equality Act provides that same-sex marriages are to be treated the same as different-sex marriages for all purposes of state law, and that the failure to amend or repeal conflicting state laws is not to be construed as requiring an exception. 

I think that reconciling all this means that married same-sex couples will have a choice, and they can file either jointly or as married filing separately.  But that's just my opinion….

A P.S. added on Saturday, July 9:  Yesterday the Debtors in the Balas & Morales bankruptcy case filed a Response to the US Trustee's Motion to Dismiss the Appeal.  They agree to dismissal, having determined that the US Trustee has now adopted a general policy of not opposing joint bankruptcy filings by same-sex married couples.  It seems that the House of Representatives Bipartisan Legal Advisory Group — actually, the three Republican members of that group — are not interested in getting involved in bankruptcy cases, since they believe that is not the way the issue of Section 3 unconstitutionality will get to the Supreme Court.  In light of that, and given the Obama Administration's conclusion that Section 3 is unconstitutional, the Trustee will stop filing these motions, which are just a waste of time.