Emory Bankruptcy Developments Journal


Michael Tomback


Windsor v. United States marked the erosion of the Defense of Marriage Act of 1996. Post-Windsor, the operative definition sections of that Act'defining 'marriage' and 'spouse' for 'any Act of Congress''no longer control. The meaning of marriage and spouse under federal law and, specifically, the Bankruptcy Code is now unclear. This Article argues that lawfully married same-sex couples should be allowed to file for bankruptcy jointly under 11 U.S.C. § 302 in all bankruptcy courts, even if the couple files jointly in a state that does not recognize their union. Under federalism principles, the Bankruptcy Code should apply the definitions of marriage and spouse from the state of celebration to provide same-sex couples equal access to the federal bankruptcy system. This Article proposes an interpretive framework that permits same-sex couples to file for bankruptcy jointly in any state while leaving state-level restrictions on marriages between same-sex couples untouched.