Saturday, March 9, 2013
Anthony C. Infanti (Pittsburg) presented LGBT Families, Tax Nothings at the University of Iowa College of Law on Thursday as part of the Journal of Gender, Race & Justice symposium on Modern Families: Changing Families, Challenging Laws:
The federal tax laws have never been friendly territory for LGBT families. Before the enactment of the federal Defense of Marriage Act (DOMA), the federal tax laws turned a blind eye to the existence of LGBT families by tacitly embracing state law discrimination against same-sex couples. When it enacted DOMA in 1996, Congress ensured that it would be able to continue to turn a blind eye to LGBT families even if one or more states were to legally recognize families headed by same-sex couples. In a real sense, LGBT families have been, and continue to be, tax outlaws.
This overt discrimination has not, however, proven to be an insurmountable hurdle for enterprising LBGT families wishing to obtain (at least in some measure) the same tax treatment as “traditional” families. The federal income tax laws provide tax benefits to relationships of dependency in many (though not all) of the same circumstances in which they afford benefits to married different-sex couples. These relationships of dependency are typically between the taxpayer, in the role of parent or caregiver, and a child or other person who cannot care for himself/herself. Often, the only means for same-sex couples to avoid otherwise discriminatory and burdensome tax consequences is for one spouse to qualify as the “dependent” of the other.
Despite its inevitability, dependency is stigmatized in the United States. Take, for example, Republican presidential candidate Mitt Romney’s comments regarding the “47%” (i.e., those who, he claimed, pay no income tax and are dependent on government). Against this rhetorical background, the dependency provisions in the tax laws realign “lucky” LGBT families so that we do not see a family headed by two same-sex spouses working together to care and provide for their children, but only a taxpayer who has a number of dependents that he or she must support. From this perspective, no matter how great the actual contribution of the “dependent” same-sex spouse, that contribution counts for nothing. Thus, the price imposed upon LGBT families for obtaining tax benefits that “traditional” families take for granted is a reconfiguration of the family structure that paints an inaccurate picture of LGBT families and deprecates the “dependent” spouse’s contribution to the family and society while simultaneously stigmatizing him or her.
In contrast, the marriages of different-sex spouses are both legally recognized and valued for tax purposes. No matter how great or small the financial contribution of each spouse to the marriage, the tax laws are based on the assumption that both different-sex spouses are actively contributing to the relationship (and, in turn, to society) because, by definition, a taxpayer’s different-sex spouse cannot qualify as his/her dependent. This treatment stands in stark contrast to that of LGBT families and highlights the privileging of the traditional family in and through the federal tax laws.
It is worth noting that the repeal or invalidation of the portion of DOMA that applies to the federal tax laws would not redress this disparate treatment. It would have an effect only on a subset of LGBT families—those whose relationships would be legally recognized for federal tax purposes in the absence of DOMA, which is in no way a self-defining group but instead itself a complicated question with no clear answer. The repeal or invalidation of DOMA would be of no help either to the many same-sex couples whose relationships would still not be recognized for purposes of federal law or to those couples who choose not to seek legal sanction of their relationships. In other words, this is a problem that cannot be solved simply by eliminating DOMA; it is a problem that requires a more fundamental rethinking of how the tax laws approach questions of family status.