The law barring federal recognition of gay marriages is increasingly being judged unsound.

From a narrow perspective, the decision in a California bankruptcy case this week concerns only one married couple. Yet the expansive, strongly worded opinion against the Defense of Marriage Act, backed by the signatures of 20 of the 24 judges in the U.S. Bankruptcy Court of the Central District of California, provides robust support for the increasingly common legal view that the federal law is unconstitutional.

The Clinton-era law did not ban or legalize same-sex unions; marriage is regulated by states. Rather, it released states from having to honor gay marriages performed in other states and barred the federal government from recognizing those marriages. Once same-sex marriages began in significant numbers, the law resulted in absurd situations. Authorities in Texas struggled with whether to allow a gay couple to divorce, since the state hadn’t recognized their marriage to start with. And in the bankruptcy case, the U.S. trustee who oversaw the case claimed that the couple could not file for bankruptcy protection because they were not legally married — at least, not according to the federal government. The couple had wed during the brief time that such marriages were legal in California.

This isn’t the first time that a court has found the Defense of Marriage Act unconstitutional. And this year, U.S. Atty. Gen. Eric H. Holder Jr. announced that the Justice Department no longer would defend such an unconstitutional and discriminatory law in court. In his far-ranging decision in the bankruptcy case, Judge Thomas B. Donovan referred to Holder’s statement, agreeing with it that discrimination against gays and lesbians would have to meet a high legal bar in order to withstand challenges. Meanwhile, congressional Republicans are going forward with their legal defense of the law.


The California Bankruptcy Court decision isn’t about whether same-sex couples have a constitutional right to marry. It focuses instead on responsibility to protect the institution of marriage by protecting all marriages. Same-sex couples go through the same process to obtain their marriage licenses as any other couple; the spouses have the same legal responsibilities toward each other, and they are just as married under state law. Yet the federal law singles them out as being less valid — or worse, as nonexistent — when it comes to the legal accoutrements of married life: survivor benefits, bankruptcy and the like.

As Donovan’s decision eloquently points out, there is no rational basis for treating one perfectly legal marriage differently from another.