TACOMA, WA, August 20, 2004 ( – Paul Snyder, a U.S. Bankruptcy Judge in Tacoma Washington, has ruled that the Federal Defense of Marriage Act (DOMA,) which defines “marriage” as “only a legal union between one man and one woman as husband and wife,” is constitutional.  The In re Kandu case is the first challenge to the Federal DOMA to be decided by a court and comes just weeks after a Washington State court held that homosexuals have a constitutional right to marriage under Washington’s Constitution.

Kandu arose after two women, Ann and Lee Kandu, were married in British Columbia in August 2003.  Several months later, they filed a joint petition for Bankruptcy in Washington. However, federal bankruptcy law allows joint bankruptcy filings only by a debtor and his/her “spouse.” According to DOMA, the term “spouse” under federal law refers “only to a person of the opposite sex who is a husband or a wife.” As such, only opposite-sex couples may file joint bankruptcy petitions.

The resulting lawsuit from the Kandus challenged the constitutionality of DOMA on Tenth Amendment, Comity, Fourth Amendment, Due Process, and Equal Protection grounds. The Kandus’ main argument focused on a claim that the right to marry without regard to the sex of the parties is a fundamental right properly defined by the states and subject to due process protection. However, the judge rejected the Kandus’ arguments and refused to expand the constitutional protections afforded to traditional marriage to same-sex marriage.

While Judge Snyder recognized that marriage is a fundamental right, he wrote, “No federal court, however, has explicitly recognized that this fundamental right to marry extends to persons of the same sex.” Stating that “the Supreme Court has defined fundamental liberties as those that are objectively, deeply rooted in the nation’s history and tradition,” Snyder determined that “there are no grounds to conclude objectively that same-sex marriages are deeply rooted in this nation’s history and tradition.”

Judge Snyder wrote that the court must “be extremely cautious before creating on its own a new fundamental right based on what the Supreme Court might decide in the future.”

Mathew Staver, President and General Counsel of Liberty Counsel and author of Florida’s DOMA provision, stated that the decision is a “welcome step toward preserving the traditional definition of marriage as between one man and one woman.” Staver commented, “While many legal battles over DOMA are certain to follow, Judge Snyder sets the standard by exercising judicial restraint and ‘interpreting’ rather than ‘creating’ the law.”  Jhw