In re Kandu, 03-51312.

CourtUnited States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Western District of Washington
Citation315 B.R. 123
Decision Date17 August 2004
Docket NumberNo. 03-51312.,03-51312.
PartiesIn re Lee KANDU and Ann C. Kandu, Debtors.
315 B.R. 123
In re Lee KANDU and Ann C. Kandu, Debtors.
No. 03-51312.
United States Bankruptcy Court, W.D. Washington.
August 17, 2004.

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Lee Kandu, Castle Rock, WA, pro se.

Ann C. Kandu, Castle Rock, WA, pro se.

Tanya M. Pemberton, Tacoma, WA, for Debtors.

Gregory G. Katsas, U.S. Dept. of Justice, Washington, DC, Marjorie S. Raleigh, U.S. Trustee, Seattle, WA, for U.S. Trustee.


PAUL B. SNYDER, Bankruptcy Judge.

This matter came before the Court pursuant to an Order to Show Cause for Improper Joint Filing under 11 U.S.C. § 302. Based on the arguments presented and considering the pleadings submitted, the Court's findings of fact and conclusions of law are as follows:


Lee Kandu and Ann C. Kandu (Debtors), two women, who are United States citizens, were married in British Columbia, Canada, on August 11, 2003. On October 31, 2003, Lee Kandu (Debtor) filed pro se a voluntary petition for relief under Title 11, Chapter 7. Ann C. Kandu was listed on the petition as a joint debtor pursuant to 11 U.S.C. § 302. On December 5, 2003, the Court filed an Order to Show Cause for Improper Joint Filing of unmarried individuals. The Court was advised that on March 25, 2004, Ann C. Kandu died. 1

The Debtor filed a Memorandum in Support of Debtors' Joint Filing on April 20, 2004, challenging the constitutionality of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7. On April 30, 2004, the United States Trustee (UST) filed a motion for order shortening time and a Motion for Additional Time to file Response Brief and for Certification of Issues to the Attorney General for the State of Washington. On May 7, 2004, the Court granted the motions and certified to the Attorney General of the State of Washington the issue of the constitutionality of RCW 26.04.010 that limits marriage to a husband and wife of the opposite sex. On May 17, 2004, the UST advised an Assistant Attorney General by letter that the Court would address only issues regarding the constitutional challenges to DOMA. For issues concerning the constitutionality of RCW 26.04.010, the Court would at a later date, if necessary, afford the State an opportunity to be heard.

On May 21, 2004, the UST filed its response to the show cause order, and on June 4, 2004, the Debtor filed a reply thereto. On June 10, 2004, the Court heard oral arguments and subsequently took the matter under advisement.


The Defense of Marriage Act, provides that "[i]n determining the meaning of any

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Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, ... the word `spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. § 7. The controlling statute, or Act of Congress, in this case is 11 U.S.C. § 302 that governs joint cases for bankruptcy filings. This statute provides that, "[a] joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual's spouse." 11 U.S.C. § 302(a) (emphasis added).

The Debtor contends that DOMA, as applied to 11 U.S.C. § 302, is unconstitutional. The Debtor specifically argues that excluding same-sex couples from recognition under 11 U.S.C. § 302 violates the Tenth Amendment, the principles of comity, and the Fourth and Fifth Amendments to the U.S. Constitution. The Debtor has not challenged DOMA under the Full Faith and Credit Clause, Article IV, Section I of the U.S. Constitution.

DOMA was signed by President Clinton in 1996. This Court is unaware of any published opinion by a federal court addressing its constitutionality. Thus, the arguments presented by the Debtor as to DOMA's constitutionality are matters of first impression. The issues concerning same-sex marriage, however, are not novel. The constitutional issues, as well as arguments set forth by the parties, have been the subject of recent state court decisions, as well as debate in Congress, state legislatures, and in the academic world.


The Debtor first argues that DOMA is unconstitutional because it violates the Tenth Amendment to the U.S. Constitution. She maintains that DOMA is unenforceable because it regulates domestic relations, specifically marriage that is a power not granted to Congress in Article I of the U.S. Constitution and, therefore, reserved to the States by the Tenth Amendment.

The Constitution "establishes a system of dual sovereignty between the States and the Federal Government." Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 2399, 115 L.Ed.2d 410 (1991). The federal government's power, however, is expressly limited by the Constitution. Gregory, 501 U.S. at 457, 111 S.Ct. at 2399. Those limits are articulated by the Tenth Amendment that provides "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. The basic concern of the Tenth Amendment is the "proper division of authority between the federal government and the States." New York v. United States, 505 U.S. 144, 149, 112 S.Ct. 2408, 2414, 120 L.Ed.2d 120 (1992). The text of the Tenth Amendment itself does not limit the power of the federal government. New York, 505 U.S. at 156-57, 112 S.Ct. at 2418. Rather, the Tenth Amendment requires a court to look at "whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States." New York, 505 U.S. at 155, 112 S.Ct. at 2417. The Tenth Amendment is implicated when a particular Act of Congress is outside its enumerated powers, infringing on the powers reserved to the States. See New York, 505 U.S. at 156, 112 S.Ct. at 2417-18.

In this case, the Debtor argues that the Tenth Amendment is implicated because through DOMA Congress is regulating

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marriage, a power that has traditionally been reserved to the States. DOMA defines the term "marriage" and "spouse" for federal purposes as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7. DOMA was enacted in response to Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). H.R.Rep. No. 104-664, at 6-7 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2911. Congress recognized that the Hawaii Supreme Court appeared to be on the verge of requiring the State of Hawaii to issue marriage licenses to same-sex couples. H.R.Rep. No. 104-664, at 2, reprinted in 1996 U.S.C.C.A.N. at 2906. Congressional history indicates a profound concern over the consequences such a decision could have on both federal law and the impact it would have on other states. H.R.Rep. No. 104-664, at 2, 6-7, reprinted in 1996 U.S.C.C.A.N. at 2906, 2910-11. Particularly, with regard to federal law, "a decision by one State to authorize same-sex marriage would raise the issue of whether such couples are entitled to federal benefits that depend on marital status." H.R.Rep. No. 104-664, at 2, reprinted in 1996 U.S.C.C.A.N. at 2906. According to the House Report, "[t]he word `marriage' appears in more than 800 sections of federal statutes and regulations, and the word `spouse' appears more than 3,100 times." H.R.Rep. No. 104-664, at 10, reprinted in 1996 U.S.C.C.A.N. at 2914. Until recently, Congress did not define the term marriage or spouse in those sections, because it was believed that state and federal definitions of those terms were consistent, namely, that marriage is the union of one man and one woman. See H.R.Rep. No. 104-664, at 10, reprinted in 1996 U.S.C.C.A.N. at 2914. In light of Baehr, Congress recognized the potential for confusion, adopting DOMA to preserve the traditional definition of marriage intended by Congress for application of federal law. See H.R.Rep. No. 104-664, at 10, reprinted in 1996 U.S.C.C.A.N. at 2914.

DOMA explicitly applies only to federal law. H.R.Rep. No. 104-664, at 29, reprinted in 1996 U.S.C.C.A.N. at 2934. Its definitions of marriage and spouse are applicable only to the determination of the meaning of "any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States." 1 U.S.C. § 7. The determination of who may marry, however, continues to be exclusively a function of state law. H.R.Rep. No. 104-664, at 3, reprinted in 1996 U.S.C.C.A.N. at 2907.

The primary question raised by the Debtor as it concerns the Tenth Amendment is whether DOMA oversteps the boundary between federal and state authority. The Court concludes that the answer in this instance is that it does not. The Tenth Amendment is not implicated because the definition of marriage in DOMA is not binding on states and, therefore, there is no federal infringement on state sovereignty. States retain the power to decide for themselves the proper definition of the term marriage.

The Debtor also argues that Congress may preempt state family law, in favor of a federal standard, only when specific conditions are met. In support, she relies on Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) and United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). In both Hisquierdo

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and Yazell, the Court considered whether state law was preempted by...

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