Friday, May 14, 2010
In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian marriages.
Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many constitutions. Where such constitutional challenges are unavailable or unavailing, classifying the DOMAs as a tax provides grounds for arguing that this tax on lesbian and gay families should be taken into account when assessing the justness of the distribution of the overall tax burden. On a rhetorical level, labeling the DOMAs a tax on lesbian and gay families effectively counters the notion - implicit in their current moniker - that the DOMAs are a necessary "defense" of marriage against an assault by same-sex couples. Instead, calling the DOMAs a tax may prove to be an effective means for shifting the rhetorical debate over same-sex marriage by making it clear that the DOMAs do nothing more than punish lesbian and gay families because they are different.