California Butte County gay couple challenge federal marriage act

June 13, 2011
Butte gay couple challenge federal marriage act
By Cynthia Hubert

MAGALIA – It was not the proudest moment of their married life.

When Brenda and Lynda Ziviello-Howell found themselves in financial trouble earlier this year, they filed for joint bankruptcy as spouses.

Not so fast, said the U.S. Trustee, the federal agency that oversees such cases.

Just like that, the Ziviello-Howells found themselves in the thick of an ongoing battle over the legal rights of gay married couples.

In the eyes of the state of California, the Butte County women and 18,000 other same-sex couples who married during a brief window of opportunity in 2008 are entitled to all the joint benefits that go with their status. Four other states and the District of Columbia also recognize gay marriage.

But the federal government does not, leaving thousands of couples in legal limbo.

The landscape is beginning to change, legal specialists said, as couples like the Ziviello-Howells win small victories in court. A bankruptcy judge last month overrode the U.S. Trustee, finding the women were legally married and could go forward with their case as spouses.

"Portions of the federal government's Defense of Marriage Act are crumbling, at least in the lower courts," said Brian K. Landsberg, a distinguished professor and scholar of constitutional law at the University of the Pacific McGeorge School of Law.

The ultimate fate of the federal law, which defines marriage as between "one man and one woman," likely will rest with the U.S. Supreme Court, Landsberg said.

In the meantime, the federal government is sending mixed signals. In February, the Obama administration declared that it no longer would defend the Defense of Marriage Act in court. But until the law is struck down or repealed by Congress, federal agencies including the Internal Revenue Service, Immigration and Customs Enforcement, and the Social Security Administration continue to enforce it.

The Butte County women, who married in Sacramento in 2008 before Proposition 8 banned such unions, are among the first same-sex couples to challenge bankruptcy laws. Similar cases are pending around the country.

Emboldened by the Obama administration's decision to no longer defend the federal marriage act, more gay and lesbian couples are going to court to challenge the federal law in other areas as well.

"Now we know we can successfully fight for the rights of same-sex couples," said Joe Feist, the Chico attorney who is handling the women's bankruptcy case. "There are a whole slew of cases piling up, and the court is going to have to look at them one at a time."

In California, same-sex married couples can legally file joint state tax returns but are required to file separate federal returns, either as a single person or head of household. Same-sex spouses cannot get federal Social Security benefits if their partner dies. An immigrant's marriage to a same-sex partner is not recognized as a path to American citizenship, as it is for heterosexual couples.

"Couples are being denied all kinds of federal benefits every day," said Shannon Minter, the lead lawyer in the case challenging Proposition 8, the California measure that restricts marriage to heterosexual couples.

"What we are seeing now, however, is that married same-sex couples no longer are cooperating in their own second-class treatment," said Minter, legal director for the National Center for Lesbian Rights. "More and more, they are demanding that the federal government treat them like other married couples."

Crushing financial problems

The Ziviello-Howells, who met more than 13 years ago at a gay bar in Chico, had no political agenda when they went to the altar in Sacramento on June 17, 2008.

"We just loved each other, and we wanted to be married," said Brenda, sitting on the sofa of the couple's modest rental home in Magalia, a small town ringed by fruit orchards.

"It was such an amazing feeling," she said, recalling their hasty nuptials and first dinner as legal spouses at Joe's Crab Shack in Old Sacramento. "Sitting there as wives, it was really, really nice."

Four months later, the courts stopped gay weddings while Proposition 8 and the resulting legal challenges could be sorted out. The nuptials remain on hold, but those who wed during that brief period remain legally married.

Brenda and Lynda entered into their marriage knowing that it did not come with all the benefits afforded to heterosexual married partners. "But we hoped we would get some of the really important ones," Lynda said, including hospital visitation rights.

"I have always considered her my wife," she said, "even though we have had some bitterness that we couldn't get married and have the same opportunities that other couples had."

The couple, who are legal guardians of Brenda's 3-year-old great niece Liliana, live in a town of about 11,000 people about two hours north of Sacramento. Brenda, 41, stays home to care for Liliana. Lynda, 61, is a bus driver who transports disabled people.

They have numerous pets, including four dogs and six cats. Brenda is in charge of family finances; Lynda cooks most of the meals. Both are handy with tools and do minor home repairs. But money is always tight.

Earlier this year, they dug themselves into a financial hole.

The women blame their money dilemma in part on Brenda's depression following the death of her grandfather and her grandmother's illness.

"I quit functioning," she said, and unbeknownst to Lynda stopped paying bills on time.

At the same time, Lynda was losing work hours. "After a while, we were drowning in car payments and other bills," Brenda said.

Soon the payments, late fees and finance charges became unmanageable. One of the couple's cars was repossessed. Putting food on the table was a struggle. They had to negotiate with their landlord to stay in their rental home.

Desperate, they decided to file bankruptcy.

Bankruptcy court OKs joint filing

They assumed they could file their case as spouses. But Feist told them federal law prevented that, and they would have to file separately. That would require dividing their finances and double the legal fees to more than $3,000. They began saving pennies in hopes of eventually filing separate cases.

But after further research, Feist decided he had a good shot at challenging the Defense of Marriage Act. He told the couple he wanted to take on the federal government and would absorb the legal costs.

Feist was rebuffed at first, with the U.S. Trustee dismissing the couple's joint bankruptcy. He took the case to the next level in the bankruptcy system, arguing that the federal law was unconstitutional as applied to the Ziviello-Howells because it violated equal-protection principles. He included a copy of their marriage certificate in the file.

Ultimately the bankruptcy court, while declining to address the constitutional issue, ruled that the joint bankruptcy could go forward because the couple are legally married.

The federal government has yet to appeal but is likely to do so, Feist said. The government likely will be represented by a lawyer or legal panel appointed by Congress, since the Department of Justice no longer is defending against such challenges.

The Ziviello-Howells may have to wait awhile for their bankruptcy to be resolved, but they are prepared to "do whatever it takes to see it through," Lynda said. Unwittingly, they said, they have become activists.

"We will take it as far as we can," Lynda said. "This is not just for us, it's for gay couples all over who are in this situation.

"It does our hearts good to see that society is changing."

Read more: http://www.sacbee.com/2011/06/13/3695771/butte-gay-couple-challenge-federal.html#ixzz1PBVf0l3A