Same-Sex Marriages in Bankruptcy: A Path Out of the Public Policy Quagmire

Abstract

Up to this point the bankruptcy courts have had little difficulty balancing the interstitial nature of bankruptcy in the context of heterosexual unions. When it comes to the recognition of marriage and its attendant rights and obligations, bankruptcy courts have relied on the Supreme Court’s command in Butner v. United States and looked to state law to determine both the legality of the marriage as well as the existence of rights that arise as a result of the union. Rarely have the bankruptcy courts been asked or required to examine conflicting state domestic relations laws when ruling on the validity of a marriage. Can a bankruptcy court treat as a valid a marriage that the forum state’s law declares invalid? Can the court recognize the incidences of marriage if the forum state law either implicitly or explicitly prohibits such recognition? Is the court required to follow the public policy of the forum state or is the court free to ignore it? This article attempts to answer these questions by examining DOMA § 2 and the myriad state laws regarding same-sex relationships, The article places the marriage prohibition statutes in an historical context, describing the narrow construction state courts have traditionally given such statutes even during the miscegenation era. To the extent a conflict cannot be avoided, the article promotes a federal choice of law rule that focuses on underlying bankruptcy policies rather than state public policies regarding same-sex relationships.