TaxProf Blog

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

Wednesday, February 23, 2011

The Tax Implications of Obama's Abandonment of the Defense of Marriage Act

DOJ The Department of Justice announced today that the Obama Administration believes that the Defense of Marriage Act in unconstitutional and will stop defending it in court, including in the Windsor v. United States case challenging the constitutionality of limiting the estate tax marital deduction to hererosexual couples. (Hat Tip: Bob Kamman.) From Pat Cain (Santa Clara):

If DOMA were not on the books, Edie Windsor would not have had to pay the IRS $363,000 in taxes. Since the Executive Branch is still enforcing DOMA, that means that the case will have to be litigated to conclusion before Windsor knows whether she is entitled to the refund or not. And even if the Attorney General is not willing to defend DOMA, it seems likely that Congress will step in and defend the law.

New Cases, Tax | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference The Tax Implications of Obama's Abandonment of the Defense of Marriage Act:


So, the Executive Branch can just pick and choose which laws it wants to claim are not constitutional and will not defend. What's wrong with doing the job of defending the laws, as the President swore to do, and letting the courts decide what's constitutional?

But, if this selective approach is acceptable for the President, each citizen should be able to accept or reject whatever laws he feels are not constitutional. We'll just have anarchy all over the place.

I'll start by claiming that Obama does not meet the Constitutional requirements to be President and should join his fellow Muslim leaders in Africa who are being forced into exile. Moving vans should be pulling up to the White House any day now. (I wish.)

Posted by: Woody | Feb 23, 2011 3:08:46 PM

Funny how the same case is not made with congress. Isn't the Republican congress on record as saying it will not fund laws it does not agree with? Haven't they said they will not fund the Healthcare law nor the Dodd-Frank act? How about Republican presidents not enforcing environmental regulations or employee or civil rights? For years they have got away with unenforcment as a means to getting around laws they do not agree with and now that President Obama does it their is outrage. Selective outrage to be sure. Of course outrage from a semi-hysterical Obama hater who makes spurious and unfounded claims over his religion and legitimacy do not carry much weight with more sober minded people.

Posted by: George W | Feb 23, 2011 3:58:38 PM

Let's go with a tax angle here (rather than politics):

DoJ will stop defending DOMA in courts, per Obama. Well, what did he tell the IRS? Someone over there must realize that 99% of tax litigation is in Tax Court where the IRS, not DoJ, represents the government (well, the Commissioner). With refund claims being an option for a few, but not many taxpayers can pay to play, which means deficiency litigation in Tax Court (Windsor paid the $363,000 in taxes, but how many taxpayers are in that position). So the Tax Cout is now the only Federal court where DOMA (tax) litigation can continue.

Someone shoot a letter to the West Wing to get on the horn to Messrs. Shulman and Wilkins and let them know that perhaps the IRS should abandon this position too lest the government take inconsistent positions (DoJ/district courts & court of claims vs. IRS/tax court) and seemingly be in the position of the left hand having no clue what is going on. (it is not a pun and it is not social/political commentary; it is a phrase -- Matthew 6:3 -- and nothing more. And it is not religious, either. it is tax commentary, and nothing more.

Posted by: tax guy | Feb 23, 2011 5:53:31 PM

How paradoxical that Eric Holder now repudiates DOMA, a law signed by his former boss, Bill Clinton, during Holder's earlier stint as a senior Justice Department official. This shows how Holder's choice not to defend DOMA rests on politics, not law.

Posted by: Jake | Feb 23, 2011 6:32:12 PM

One can always recognize a response from a liberal, and it's not complete unless you're accused of being a racist or a hater. Here's something from another "hater:" DOJ Shirking Duty in Not Defending DOMA, Critics Haters Say

But, there is a huge difference between (1) not enforcing job-killing environnmental regulations that were created without legislative involvement, (2) opposing race preferences when discrimination is wrong, or (3) not funding an act passed using bribes by a lame-duck Congress which ignored polls showing overwhelming public opposition of a government takeover of medicine that was sold as paying for itself and for which there is no money available vs. a marriage law passed by Congress and signed by President Clinton, who must be a homophobe for signing it.

But, what does this have to do with the price of gas or unemployment, which is precisely why Obama is bringing this up at this time -- to distract Americans from the real problems that affect the world and all citizens, not just special interests, and for which Obama has failed completely. The Office of the President should not a place for on-the-job training.

Fortunately, no one with a brain listens to a whining liberal who distorts facts and resorts to name calling.

Posted by: Woody | Feb 23, 2011 7:20:59 PM

tax guy, I agree, so I'll drop the political aspect. My last comment was made before yours was posted.

Posted by: Woody | Feb 23, 2011 8:14:05 PM

How can members of Congress defend the law? Do they have standing? Doesn't Raines v. Byrd control?

Posted by: eli bortman | Feb 24, 2011 7:56:53 AM

Most important thing is for people who might benefit to get refund claims in while statute is still open. 2007 is looming.

The Massachusetts Family Institute has indicated that they are going to seek standing to intervene in Gill v OPM.

Posted by: Peter Reilly | Mar 4, 2011 11:22:08 AM