You have to be on the elderly side to remember Hamilton Burger. He was the prosecutor who always lost to Perry Mason. The spirit of Hamilton Burger lives on in the Bipartisan Legal Advisory Group. BLAG was formed when the Justice Department decided that the constitutionality of the Defense of Marriage Act was indefensible. Since then, BLAG had had a string of defeats including one yesterday, this time in the United States District Court for the District of Connecticut (Pedersen v OPM). DOMA stands for the Defense of Marriage Act, which holds that for federal purposes, only marriages between a man and a woman are recognized, regardless of state law. There are over 1,000 rights and benefits that hinge on marital status. Among them are the right to file a joint return (which is not always quite as much as it is cracked up to be) and the unlimited marital deduction for estate tax purposes. The role of Perry Mason in this ongoing series is largely played by GLAD (Gay and Lesbian Advocates and Defenders). GLAD and its allies keep winning, but BLAG like Hamilton Burger keeps objecting.
The decision is fairly lengthy. It goes through the analysis of whether gay people are a “suspect class”, which requires that legislation that disadvantages them be subject to strict scrutiny. Among the factors determining whether a group is a “suspect class” is a long history of discrimination. BLAG comes up with a rather strange argument that there has not been discrimination against gay people for all that long, barely a century or so. Much before the 20th century there weren’t any gay people.
In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Chauncey elaborates in his expert affidavit that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.”
Of course there were guys who buggered one another and were executed for it, but there wasn’t any gay identity. The Court wasn’t buying that argument.
After many pages the Court concludes that gay people are a suspect class, but that it really does not matter, because they don’t need strict scrutiny to throw out Section 3 of DOMA, because it does not have a rational basis. Among the possible rational bases discussed was protecting the fisc. One of the problems with that is a 2004 Congressional study that gay married couples, in the aggregate, will end up paying more income taxes if Section 3 of DOMA goes away. I keep telling my mythical clients Robin and Terry that joint filing is not that great a deal, but they just won’t listen.
BLAG did come up with something that it hasn’t tried before. It tried to kick out the tax plaintiffs, because the language in Title 26 (Internal Revenue Code) could be read to deny joint filing independent of DOMA
BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. §6013, does not on its own extend to same-sex couples.”
BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code.
That didn’t work.
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise … words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.”
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.”
I did not recall seeing that one before and I am glad to say that Patricia Cain, who covers this topic with laser like focus, indicates that it has not been tried before. I usually pick the cases I write about by just slogging through them. I picked up the news on this one from Joe.My.God. I don’t watch TV anymore so these cases are filling the role of the Perry Mason show for me. Frankly, I’m looking forward to the series finale.
You can follow me on twitter @peterreillycpa.
.Originally published on Forbes.com on August 1st, 2012