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Government Appeals DOMA Bankruptcy Ruling

By Stephanie Rabiner, Esq. on July 07, 2011 6:48 AM

Supporters of gay rights and same-sex marriage were on the receiving end of mixed-messages last week when the Obama administration decided to appeal the recent DOMA bankruptcy ruling that deemed the law unconstitutional.

Just days later, the Department of Justice also weighed in on a lawsuit brought by a federal employee who claims that DOMA unconstitutionally requires the federal government to deny health insurance to her same-sex spouse.

In the second case, the government argued that DOMA is irrational and based solely on hate.

In June, the U.S. Trustee's Office requested that a federal bankruptcy judge dismiss a case involving a same-sex couple on the grounds that DOMA prohibited him from recognizing their marriage. Finding that DOMA is unconstitutional as a violation of equal protection, he denied the request.

Now the U.S. Trustee, who represents the federal government in bankruptcy proceedings, in conjunction with the Department of Justice, has decided to appeal the case.

Given the Department's arguments in the same-sex benefits case, why would they do this?

Well, even though the Obama administration announced in February that the Department of Justice would no longer defend DOMA, the Associated Press reports that the appeal is an attempt to give Congress, which has taken up the act's defense, a chance to weigh in.

It's a strange move, and likely politically motivated, but technically the DOJ doesn't have to defend the case even though it appealed the ruling.

If Congress chooses not to pursue an appeal of the DOMA bankruptcy ruling, instead of defending the law, the Obama administration can later withdraw the request and let the ruling stand.

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