Thursday, October 1, 2020
Anthony C. Infanti (Pittsburgh), Hegemonic Marriage: The Collision of 'Transformative' Same-Sex Marriage with Reactionary Tax Law, 74 Tax Law. ___ (2021):
Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some within the LGBTQ+ community opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. On the other hand, LGBTQ+ proponents of same-sex marriage saw marriage as a civil rights issue because of the central importance of marriage in American society. They sensed a profound wrong in the denial of the benefits of marriage to same-sex couples when those couples carried on lives no different from their heterosexual counterparts, save for the legal recognition of their relationships as a “marriage.” Proponents also lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better. Opponents, of course, feared the hegemony of heterosexual marriage in the United States and argued that same-sex marriage would not transform American society at all.
This essay looks back at that debate through the lens of the federal tax definition of “marriage” before and after the U.S. Supreme Court’s decisions in United States v. Windsor and Obergefell v. Hodges.
These two decisions brought legal recognition of same-sex marriage to the federal and state realms, respectively. The question in these early years following the advent of same-sex marriage across the United States is whether the promised transformative potential of same-sex marriage has begun to be realized. In the realm of federal tax law—which is the situs of perhaps the most intimate and sustained connection that citizens have with the federal government—the answer is at this point, unfortunately, no. After opening the door to a broader array of legally recognized relationships before Windsor, the Internal Revenue Service reversed course and firmly shut the door on recognizing any relationship not denominated “marriage” in the wake of that decision. At first, it was thought that the IRS reversed its position in order to prod states that had adopted second-class civil union or domestic partnership regimes to recognize same-sex marriage—and this did, indeed, happen in the two years that separated the Windsor and Obergefell decisions. But after Obergefell, when same-sex marriage began to be recognized across the United States, the IRS even more firmly closed the door to recognizing alternative relationship statuses, showing that its original move was reactionary in character and stymieing the transformative potential of same-sex marriage in this influential area of the law. In conclusion, the essay will explore the lessons to be learned from the collision between faith in the ability to disrupt and overturn hierarchies and the reality of the power of entrenched societal institutions such as marriage.