Friday, April 12, 2013
From a distance, the moon appears bright, shiny, and attractive. It is revered and romanticized. Lives (and deaths) are planned around its phases and cycles. But, upon closer inspection, this attractive object is actually scarred — pocked with craters left by past violent impacts.
Tax equality is, in some ways, strikingly similar. As of this writing, same-sex couples are fighting to invalidate section three of the federal Defense of Marriage Act (DOMA). Several federal courts have already done so, and the U.S. Supreme Court is likely to take up this issue during the term that starts in October 2012. In the abstract, invalidating DOMA and its unequal treatment of married couples based on their gender and sexual orientation is appealing and draws us in with its own romantic sort of beauty. But when we come face to face with legal equality, we may find that legal equality is not so bright, shiny, and attractive. What we learn is that it is pocked and scarred by the impact of past legal battles that make it less promising and attractive. Indeed, we may find that equality is not all that equal and that the situation post-DOMA may be markedly worse than the situation pre-DOMA.
In this essay, I first describe how we appear to be poised to achieve formal equality for same-sex couples under the federal tax laws. I outline the pending constitutional challenges to DOMA that will place all married couples on ostensibly the same legal footing for federal tax purposes and potentially allow same-sex couples to take advantage of past legal victories that have extended legal recognition to same-sex relationships. Then, I turn to describing the ways in which the post-DOMA federal tax terrain may actually be worse for same-sex couples than the already bleak tax landscape that they face. Same-sex couples already face a debilitating level of uncertainty in determining how the tax laws apply to their relationships. Post-DOMA, same-sex couples will likely see this uncertainty multiply as they not only grapple with how to fill the vacuum of guidance on treating their relationships when they are not recognized for tax purposes, but also with the question of whether and when their relationships will be recognized for tax purposes. Even were these uncertainties to be resolved, I conclude by describing how we may find that federal discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our tax laws, failing to erase inequitable treatment along lines of marital status and class.