Paul L. Caron

Wednesday, June 26, 2013

5-4 Supreme Court: Denial of Estate Tax Marital Deduction to Same-Sex Couple Violates Fifth Amendment

The Supreme Court today in a 5-4 decision written by Justice Kennedy held that the denial of an estate tax marital deduction to the surviving spouse of a lesbian couple under the Defense of Marriage Act violates the Fifth Amendment.  Windsor v. United States, No. 12-307 (U.S. June 26, 2013).

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Gay marriage advocates are happy now, but winning the issue by overturning the decisions voters and their elected representatives tarnishes the victory. A full and fair win through the democratic process was inevitable in the near future.

It's as if you planned an elaborate wedding for your daughter and she eloped to marry in a Las Vegas drive-through "chapel". The end result is the same but the process unnecessarily creates lasting bad feelings.

I predict that within two years columnists who advocated this court decision will write articles regretting that the case was ever brought to the court.

Social conservatives erred badly by failing to legislate full federal tax equality for civil unions. That compromise had nearly universal acceptance in California for decades.

Posted by: AMTbuff | Jun 26, 2013 1:18:19 PM

AMTbuff misses the point. The Court's decision allows the states to determine the status of marriage by overturning only the federal law -- leaving state laws in place. Further, the idea that "a full and fair win through the democratic process was inevitable in the near future" is absurd when voting and reproductive rights are still routinely being contested at the state level.

It's easy to assert that advocates of this decision will regret the litigation, but on what basis? They may be too busy writing about cases on state bans on gay marriage.

Posted by: Scipio | Jun 26, 2013 2:01:09 PM

That's a dumb analogy and a dumb prediction.

Posted by: Donna | Jun 26, 2013 2:16:23 PM

A federal income tax question for you -- Can someone confirm (or explain why it's not right) what I've heard a few TV commentators say? A same-sex couple marries in a state in which that's allowed, and later moves to a state that does not recognize same-sex marriages. Would the couple be entitled to file a joint 1040? I've heard several experts say 'no,' and that puzzles me.

Posted by: eli bortman | Jun 27, 2013 4:59:02 AM

A full and fair win through the democratic process is inevitable in the near future? Tell that to the voters in Mississippi, where same-sex marriage has only 13% support. The Atlantic Wire has a helpful graphic that shows, state-by-state, the opposition.

What changed yesterday, for tax practitioners, is that we have gone from a handful of states where couples had to file separate federal returns, while filing a joint state return; to a majority of states where couples must file separate state returns even while filing joint federal returns.

People in Massachusetts have income from Mississippi. State laws on nonresident taxation were not written for differing definitions of filing status. Until Section 2 of DOMA is overturned, same-sex couples will want to avoid doing business in states that do not recognize their marital status -- further contributing to the polarization of national politics.

Posted by: Bob | Jun 27, 2013 5:34:53 AM

I don't think AMTBuff even realizes that there were two separate gay marriage opinions yesterday.

Posted by: G.E. Moore | Jun 27, 2013 8:01:53 AM