Challenging the Constitutionality of DOMA

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Gay and Lesbian Advocates and Defenders (GLAD) filed a lawsuit today challenging the constitutionality of a portion of the federal Defense of Marriage Act (DOMA). The suit challenges only the provision in DOMA that denies recognition to same-sex marriages for purposes of federal law. The suit has a number of plaintiffs whose stories together paint a picture of the many areas in which this provision can adversely affect married same-sex couples, from employee benefits to recognizing name changes to Social Security to tax. I was contacted to comment on the tax portion of the lawsuit and have reproduced my comments below for those who might be interested:

Thanks for the opportunity to comment on this story. This case shines a needed public spotlight on an area that I and others have been writing about in the pages of law reviews for years, namely, the ways in which the Internal Revenue Code disadvantages same-sex couples by refusing recognition to their relationships. The case also underscores the often overlooked interaction between tax and social justice issues.

Importantly, the complaint takes a step toward countering widely held stereotypes about lesbians and gay men. A common reaction that I receive to my work is that same-sex couples should not be fighting to have their relationships recognized for tax purposes because they will end up paying more tax due to the application of the marriage penalty. This view is based on a variety of stereotypes about lesbians and gay men, including myths about the affluence of the lesbian and gay community and the composition of lesbian and gay families. The portion of the complaint concerning Mary Ritchie and Kathy Bush is particularly compelling in this regard, because it paints a picture of a lesbian family where one mother has chosen to stay home to raise the couple’s children. As detailed in the complaint, if their relationship were recognized for federal tax purposes, Mary Ritchie and Kathy Bush would not suffer a marriage penalty, but would reap a marriage bonus. Due to the federal government’s refusal to recognize their relationship, they paid from $1,054 to $6,371 more in tax than they would have if their relationship had been recognized for tax purposes. This is money that was paid to the federal government rather than being available to be spent on the couple’s children now or saved for their future. Similarly, the portion of the complaint relating to Melba Abreu and Beatrice Hernandez gives another example of a same-sex couple who would pay less tax if their relationship were recognized for federal tax purposes. Their story paints a picture of one spouse who is out in the workforce and another who is attempting to start her own business. The money that they had to pay in extra taxes to the federal government was not available either for them to save for their future or to use to grow their new business. Both Melba Abreu and Beatrice Hernandez’s story and Mary Ritchie and Kathy Bush’s story help to paint a more complicated–and realistic–picture of how same-sex couples live and how they would be treated under the Code if their relationships were recognized by the federal government.

In closing, I would note that the complaint only hints at the many and complicated ways in which the Code affects same-sex couples. The complaint talks about one (and only one) of the ways in which the Code directly affects same-sex couples by refusing recognition to their relationships; that is, it bars access to married filing jointly status. The complaint does not explore the many other areas of the Code where tax treatment turns on marital status (e.g., section 1041 transfers between spouses, the section 2040 estate tax rules for property held as joint tenants with right of survivorship, the gift and estate tax marital deductions, the exemption both from attribution rules that prevent abuse such as section 267 and from attribution rules that are meant to benefit taxpayers such as in section 121, and exclusions from gross income for certain fringe benefits under section 132). Nor does the complaint address the many gray areas in the tax laws that exist by dint of the fact that the federal Defense of Marriage Act tells married same-sex couples only that their marriage will not be recognized for federal tax purposes and gives these couples no instructions at all on how they should actually be treated for federal tax purposes. Thus, although the complaint shines a spotlight on an important area and begins to tell a more complicated story about the relationship between same-sex marriage and the federal tax laws, the complaint only shows the world the tip of the iceberg. Hopefully, this case will provide a vehicle for telling the broader story as well.

-Tony Infanti

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