The Defense of Marriage Act, defines spouse narrowly to only include a person of the opposite sex. Among other things, the Act has been repeatedly cited in efforts to ban same sex married couples, as well as same sex civil union couples, from jointly filing bankruptcy. As a result, gay married couples and gay couples in civil unions must pay more to file bankruptcy than their straight counterparts. At the same time, they enjoy fewer of the statutory protections afforded by the bankruptcy code.
Until recently the Justice Department has consistently defended the Act against same sex couples filing bankruptcy. After this week, it seems unlikely that anyone will defend the Act again.
On February 23, 2011, President Barack Obama ordered the Justice Department to stop enforcing the Act. It is an open question as to what will happen now. Though President Obama can order government agencies to stop enforcing the Act, he cannot barr the courts from continuing to interpret and apply the Act. However, given that laws regarding marriage are generally enacted by states, it seems extremely likely that in states where gay marriage is allowed, the constitutionality of the Defense of Marriage Act will soon be under attack. And rightly so.
