Although equal rights for same sex couples still have a long way to go, progress is being made.  Although same sex couples are still not allowed to marry in many states, they can now file bankruptcy.  In order to do so the couple must be legally married in a state or nation that allows gay and lesbian couples to marry. 

Legally married same sex couples are allowed to file bankruptcy because the bankruptcy laws are federal laws.  Under the recent U.S. Supreme Court ruling known as Windsor, section 3 of the Defense of Marriage Act (DOMA), which denied federal benefits to legally married same sex couples, was found unconstitutional.  This now allows such couples the same benefits that heterosexual couples have under federal laws, including bankruptcy.

There has been some uncertainty if same sex couples would receive all of the rights and benefits of heterosexual couples because it is argued that some federal benefits depends on where you were married and others depend on where you reside.  This can cause a legally married same sex couple to be able to receive some federal benefits and yet not others.  Further, there has been uncertainty regarding what rights gay or lesbian couples legally married couples would have if they live in a state that does not allow same sex marriages. 

Unfortunately, the Supreme Court didn’t address section 2 of DOMA in the Windsor case.  Section 2 states that a state isn’t required to recognize the marriage of a same sex couple married in a jurisdiction that allows such marriages.  This would appear to be in conflict with the “Full Faith and Credit Clause” under Article IV, Section 1 of the U.S. Constitution which states that each state must recognize the laws of other states.  I expect this to be the subject of future U.S. Supreme Court cases.

Shortly after the Windsor decision the Obama Administration said that it would quickly implement the decision and extend federal rights to same sex couples.  In fact in June a gay couple, legally married in New York, filed a joint bankruptcy 13 in Kentucky; a state that not only doesn’t allow same sex couple, it actually amended its constitution in 2004 to make same sex marriage or civil unions illegal.   It’s ironic that in Kentucky, as in the majority of the states, a gay or lesbian couple can’t be legally married, but they can file a joint bankruptcy.  For a legally married same sex couple this can a valuable benefit in reducing or eliminating debt.