Marriage act is upheld in gay couple's bankruptcy

By Maureen O'Hagan
Seattle Times staff reporter

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Naturally, the couple checked the box on the bankruptcy form that said they were married.

That seemingly simple truth, and what inevitably flowed from it, has turned into a legal battle with nationwide implications — one that has drawn the scrutiny of federal-government lawyers, civil-rights groups and conservative activists, and resulted in a first-of-its-kind court ruling Tuesday.

The issue? The pair, both women, were together 13 years before they were legally married last summer in British Columbia. Getting sick and going broke has made them a sort of test case for the implications of the Defense of Marriage Act (DOMA) as it collides with the recent wave of same-sex marriages.

"When Ann and I filed for bankruptcy," Lee Kandu said, "this wasn't about making a case for same-sex marriage. It was about dealing with our life situation. We were not trying to change the laws. We were not trying to push an issue. We were just trying to get through it."

Tuesday, a U.S. Bankruptcy Court judge in Tacoma ruled in the Kandus' case that DOMA, which defines marriage as the union of a man and a woman, is constitutional. It is the first such decision by a federal court since the law was passed in 1996. And while the ruling will have little precedential value, it gives a glimpse of legal battles to come, as gays begin to encounter the ordinary hurdles of life for the first time as legally married couples.

"One thing that it really illustrates is how pervasive the rights and benefits are that come with marriage and how many different settings I think we're going to start seeing this issue pop up in," said Jamie Pedersen, a Seattle lawyer with Lambda Legal. "The simple fact is there are going to be many people getting married in Canada and Massachusetts and hopefully here as well, and there are thousands of ways that every one of those couples is affected by marriage."

Gay-marriage opponents, such as Liberty Counsel, lauded the decision as a "welcome step toward preserving the traditional definition of marriage as between one man and one woman," the group's president, Mathew Staver, wrote in a statement.

He praised Bankruptcy Judge Paul B. Snyder for "exercising judicial restraint and 'interpreting' rather than 'creating' the law."

For Lee Kandu, the situation has become even more difficult, both emotionally and legally. Ann Kandu died in March, thousands of dollars in debt. Now creditors can go after their Castle Rock, Cowlitz County, home to satisfy her debts.

"If I don't appeal," Lee Kandu said, "I'm in serious danger of losing my home."
 
She filed her own legal briefs in the case, arguing that DOMA violates their rights of equal protection and due process, among other constitutional protections. She likened her situation to that of interracial couples wrongly prohibited from marrying.

In a 30-page opinion, Snyder disagreed, saying Congress had a right to enact DOMA.

"This court's personal view that children raised by same-sex couples enjoy benefits possibly different, but equal, to those raised by opposite-sex couples, is not relevant to the court's ultimate decision," Snyder wrote. "It is within the province of Congress, not the courts, to weigh the evidence and legislate on such issues."

But for Lee Kandu, the decision means the pair cannot discharge their debts jointly through bankruptcy the way other married couples do. They can't refile separately, as single people with joint debt might do, because one is deceased.

And Lee Kandu said because the house was still in Ann Kandu's name when they filed for bankruptcy, it can't be protected through her own bankruptcy filings, even though it's in her name now. That leaves her facing the loss of the home they shared.

"We were just in a devastating position," she said. "The two of us ended up with cancer at the same time. We were trying to make the best of it."

Several months after their marriage, a doctor told Ann Kandu her cancer was fatal. "We filed for bankruptcy shortly thereafter just because we wanted to be able to save some sort of security for me, which I think is reasonable.

"For an opposite-sex couple, it would still be this horrendous experience, but there would be some legal protections," Lee Kandu said.

She said her deadline for an appeal is in eight days.

Maureen O'Hagan: 206-464-2562