The Defense of Marriage Act, Same-Sex Relationships and the Bankruptcy Code

This article was written for the Federal Judicial Center's annual symposium for bankruptcy judges. It examines the practical implications of the intersection of the Bankruptcy Code and DOMA. While states provide same-sex couples some or all of the rights and obligations of marriage including those related to creditor-debtor relationships, DOMA prohibits federal courts from recognizing those unions and attendant rights when applying federal law. After DOMA, creditors and debtors were no longer assured that state law property rights would not be altered “merely by reason of the happenstance of bankruptcy.” This article alerts bankruptcy courts to the complexities wrought by the intersection of the Bankruptcy Code and DOMA. Bankruptcy judges must maneuver between the mandates of DOMA – including challenges to its constitutionality - and the debtor-creditor relationship grounded in state law.