Friday, September 23, 2011
(Roger Williams), Same-Sex Relationships, DOMA, and the Tax Code: Rethinking the Relevance of DOMA to Straight Couples
, 20 Colum. J. Gender & L. 383 (2011):
According to Professor Derrick Bell’s seminal article describing his Interest Convergence Theory, the interests of Blacks are only accommodated when they coincide with the interests of Whites. By analogy, the interests of same-sex couples are only accommodated when they coincide with the interests of heterosexual couples. The elimination of discriminatory provisions that cause heterosexual married couples to pay more federal income tax than their same-sex counterparts might just be the mutually beneficial interest necessary to prompt Congress to recognize same-sex legal unions. In the absence of DOMA, married couples would be taxed equally for federal income tax purposes, but DOMA compels disparate federal income tax liabilities between same-sex married couples and heterosexual married couples, often to the detriment of heterosexual married couples. Congress should act to equalize these tax liabilities.
This Article endorses recent decisions made by the IRS regarding the federal income taxation of domestic partners and same-sex married couples. First, this Article confirms that the federal income tax inequality between domestic partners and heterosexual married couples is compelled under current federal income tax laws and DOMA does not preclude this federal income tax disparity. Second, this Article shows that same-sex married couples should calculate income for federal income tax purposes in the same manner as heterosexual married couples. Even those who find the federal income tax inequality between domestic partners and heterosexual married couples tolerable because domestic partnership is not identical to marriage must agree that there is something different about marriage. Once married, all married couples should be taxed equally. This Article ultimately concludes that the repeal of DOMA’s Marriage Definition is the first step necessary to restore equity, not only on behalf of same-sex couples, but also for the benefit of heterosexual couples as well.