TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, July 30, 2009

Cain: DOMA and the Internal Revenue Code

Patricia Cain (Santa Clara) has posted DOMA and the Internal Revenue Code, 84 Chi-Kent L. Rev. ___ (2009), on SSRN.  Here is the abstract:

The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. Because the justification fails, DOMA as applied to federal tax law is unconstitutional.

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Ms. Cain demonstrates another great legal mind at work.

She starts with the result she wants - DOMA is unconstitutional - and fashions a legal argument that will support that result.

If Ms. Cain is right and the tax code favors marriage in order to "measure their taxable income fairly on the basis of their status as related parties," then she must also be in favor of extending marital tax benefits to bigamists and polygamists.

These wacky, emotion-based arguments have one thing in common: The blatant disregard of the patently obvious.

For 3000 years marriage has been defined as a union between one man and one woman. I can't think of any word, term or phrase that has a more locked-in definition.

Now, because of the fashions of the day, some folks want to undo that 3000 year old definition.

I think that's reckless.

Posted by: peter | Jul 30, 2009 4:44:21 AM

This abstract is not great. Which section and clause of the Constitution is violated b/c the rationale of DOMA is not great? This poorly-written paragraph leads me to suspect there are some assumptions / bias in the analysis which do not make me want to read the article.

Posted by: hah | Jul 30, 2009 5:16:34 AM

But if the tax law were perceived as providing a subsidy to married couples would this argument change? Would this necessarily be any more absurd than (say) subsidies to owners over renters or oil producers over car makers? Of course this would not tell you anything about whether the subsidy should be provided to opposite sex or same sex couples.

Posted by: mike livingston | Jul 30, 2009 5:25:53 AM

The tax benefits extended to couples under tax law is only effective if only one spouse works. More than half the time if both the husband and wife work, as is necessary in the New York area because of the high cost of living, the tax law actually imposes a penalty. I calculate my "penalty" for being married every year by calculating what we pay as a couple and then compare it to what we would pay if we were not married. Every year I pay more for the luxury of being married.

Most gay couples that I am aware of file separate tax returns (single) and both partners work full time. Why would they want to file as MFJ? They would be paying MORE for the privilege of that filing status. If they want cake, give them cake!

Posted by: Greg from LI | Jul 31, 2009 6:29:09 AM