Pride Month
Written by: HON. DEBORAH L. THORNE
June is Pride month and, as we continue to honor our colleagues, our history, our mission, and our future, it is an opportune time to consider the journey that our LGBTQ+ colleagues have taken to and on the bench and look back at some of the issues the bankruptcy bench faced before Obergefell v Hodges, 576 U.S. 644 (2015). According to Lavender Law, the LGBTQ+ Bar Association, approximately 7.6% of the general population identifies as LGBTQ+, a number which continues to increase as people become more willing to affirmatively self-identify as LGBTQ+. Yet the composition of the federal judiciary is far behind. As of 2024, only 3% of active federal judges identify as openly gay or lesbian. This is a mere 1.6% of the 870 Article III judges in the federal judiciary. There are several openly LGBTQ+ bankruptcy judges, some now retired and others currently serving. As of the date of this article, I am not sure of the exact number, but I believe it is not close to 7.6% of our colleagues.
Prior to U.S. v. Windsor, 570 U.S. 744 (2013), the Supreme Court case overturning portions of DOMA that did not allow recognition of same-sex marriages, and Obergefell, the lack of recognition of same-sex marriages challenged many bankruptcy judges asked to determine eligibility of joint chapter 13 debtors. See In re Balas, 449 B.R. 567 (Bankr. C.D. Calif. 2011)(DOMA could not prevent same-sex couples from seeking discharge as joint debtors when their marriage was recognized under state law.); In re Somers, 488 B.R. 677 (Bankr. S.D.N.Y. 2011)(court allowed one debtor to be dismissed to allow the other debtor to proceed where same-sex marriage was not recognized); In re Simmons, 584 B.R. 295 (Bankr. N.D.Ill. 2018)(same-sex civil union couple could qualify as joint debtors over the objection of the chapter 13 trustee even though they never converted their civil union to marriage after Illinois allowed them to do so). Although decided less than 15 years ago, those cases seem like ancient history, at least to me.
At the same time, many of our LGBTQ+ colleagues faced issues in obtaining benefits and recognition of their same-sex marriages for the purpose of obtaining benefits from the Judiciary. Judge Elizabeth Perris shared the “Long and Winding Road” she took to obtain benefits from the Judiciary for her wife and longtime partner in an article published in the Conference News in 2016. You can read it here [hope we can insert a link]. Her journey parallels many of the challenges that consumers appearing in the bankruptcy court have also experienced prior to in obtaining recognition as joint debtors prior to Windsor and during DOMA.
After interviewing several of our colleagues who have faced the challenges presented when they loved their same-sex husband or wife, I was happy to find that our bankruptcy judge community is one that has been supportive and welcoming. Nothing describes this better than the story shared by Judge Maureen Tighe. Many thanks to her for sharing her story.
Being Proud Means Bringing Your Whole Self to Work
You might be surprised that I still find it odd to be asked to say anything about Pride month. I find it awkward to be on panels or speak as a LGBTQ+ representative. As far as I know, I was the first openly gay Assistant United States Attorney in our District, although no one really kept track of such things in 1988. I knew there would be a security clearance but was not concerned when I applied. I had chaired the Lesbian and Gay Caucus in law school and helped bring significant gay civil rights cases when in practice, so I thought the blackmail threat the F.B.I. seemed concerned with was a non-issue. After weathering a difficult homophobic security clearance, however, I realized that some individuals in the Department of Justice seemed to think being gay had to imply weak character and lack of fitness for the job. At that point, I decided to just be very private and keep my head down. Thus, I got in the habit of never discussing any personal subjects. It was just easier dealing with law enforcement agents and conservative attorneys in the late 80’s and 90’s.
I am forever thankful to my colleagues in the bankruptcy court for helping me to bring my whole self to work and helping me to know the difference between simply not being in the closet and actually just being myself. This journey of the last 20 years as a bankruptcy judge has been amazing for so many reasons, but a big one is the freedom it gave me to do the work I love without constantly looking over my shoulder. When I was appointed in 2003, I bit my tongue as I weathered my third and last security clearance where a retired Army CID Investigator on contract for the FBI regaled me with stories of the lesbian and gay people he had investigated and gotten dishonorably discharged from the Army. The Administration that had approved my second security clearance had changed, and debates over “Don’t Ask, Don’t Tell” were everywhere. I held off ordering a robe because I was afraid of jinxing the appointment, even though I had done nothing strange since the previous two security clearances. When I was at baby judge school and met the amazing and brilliant Judge Elizabeth Perris for the first time, she went out of her way to let me know I was welcome as a bankruptcy judge and did not have to worry about being the only gay judge. Although we could not get legally married, my partner put my robe on at my induction while our daughter looked on. Knowing I no longer had to worry about homophobic investigators trying to block me helped me totally enjoy my work, without hesitation.
I had not even worried about being gay for years when an unexpected dilemma presented itself and raised old fears. In 2011, Judge Thomas Donovan had to rule on a motion to dismiss a Chapter 13 case where 2 men had filed a bankruptcy petition jointly as domestic partners. They had co-mingled assets, liabilities and were registered as domestic partners but could not marry at that time. He drafted a ruling allowing them to file jointly and ruling that the prohibition they faced as gay life partners was unconstitutional. A colleague suggested that other gay joint debtors in financial distress who were prohibited from marrying should know whether their cases would be dismissed before they wasted the filing fee. She suggested that the draft be circulated to see if any other judges in the district wanted to sign on. Judge Donovan called me to discuss the case and this proposal. My immediate reaction resurrected all the fear and anxiety that had come along with the three homophobic security clearances. Gay marriage was being hotly contested around the country, and we had no idea who would sign on and who would not. I explained to him that I wanted to join the opinion but was afraid I might not be reappointed if the Circuit changed significantly and did not appreciate the lone gay member of the court signing on. I said I would sleep on it.
The next day, Judge Donovan circulated his draft with his inquiry about whether others wanted to sign on to In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011.) As I read the messages coming in over the next hour from my colleagues discussing the ruling, I had to stop and wipe my eyes many times before I was capable of drafting my own response. The support and acceptance of gay people and rejection of the hateful comments that were circulating was so beautiful. While my colleagues had always been supportive and wonderful, I had no idea how they felt about any gay issue until that day. Their willingness to go out on that limb solidified my dedication to them. I likely would not have agreed to be Chief Judge when asked if I had not felt totally comfortable and knew I could be myself. Their support then and many other times made a sometimes challenging and difficult job a true joy for me.
I have experienced working where I did not always feel accepted and, fortunately, where I knew I belonged. I promise you that any organization is so much stronger if people can bring their whole selves to work. I believe that pride is simply allowing all of who you are to shine so that creativity, insights and connections flourish. Knowing that, deep in my bones allowed me to connect with the amazingly diverse staff of our court. Being out and proud is not just for LGBTQ+ people — I hope that by being myself, others felt free to bring all of themselves to work as well.