The First Circuit, upholding, a lower court decision, has ruled that Section 3 of the Defense of Marriage Act is unconstitutional. Section 3 of DOMA provides that only a marriage between a man and a woman will be recognized for purposes of federal law. The law affects a broad range of benefits and burdens, some of which, the Court noted, Congress had not really thought about when it rushed the legislation through, in response to the possibility of Hawaii legalizing gay marriage in the 1990s. Being married is both a benefit and a burden under federal tax law. Married filing jointly is a better rate table than single, but married filing separately is worse than single. Interestingly, the Court notes that despite what was thought at the time of DOMA’s passage, it is now believed that DOMA probably costs the federal government money on net.
The Constitutional Analysis
What I find most interesting about the decision is that the Court indicates that DOMA requires that the Court show less than automatic deference to Congress and tradition for two reasons – disparate impact on minority interests and federalism concerns:
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
Patricia Cain, whose blog focuses on same sex tax issues indicates that the arguments are brilliantly crafted to appeal to Justice Kennedy and predicts a likely Supreme Court decision in 2013.
I suspect that this decision will not be all that exciting to the few Constitutional purists who are still out there. The left tends to like that part about minority interests, but the right tends to like federalism arguments. Activists and advocates, though, use the Constitution like a drunk uses a lamppost, more for support than illumination. They will either like or dislike the decision based on their feelings about marriage equality
Practical Tax Advice For Same Sex Couples
The decision does not change the advice I have given in other posts. If you might have benefited from filing a joint return, you need to get in a timely refund claim. Gay & Lesbian Advocates & Defenders (GLAD) has a nice package that will guide you through the process. If you extended your 2008 returns, you may still have time, but, be careful, you do not have until the extended due date, but rather until the date three years after you actually filed your extended 2008 return. Of course, as one of my regular readers, you to0k care of this several months ago. I should also mention that it is unclear how this decision might affect people in civil unions or registered domestic partnerships. It was thought that such unions, since they are not “marriages” for state law purposes would not be affected by DOMA, but there is some doubt about that. This IRS letter concerning an Illinois heterosexual civil union indicates that such legal state relationships might be treated as marriages for federal purposes.
Other Issues
I tried to take a look at what the statute of limitations on other sorts of claims such as social security or veterans benefits might be. Being but a tax blogger with a day job, though, I did not find any easy answers. I will try checking in with the people at GLAD, who have done a superb job of managing this case, but I suspect they are busy today.
You can follow me on twitter @peterreillycpa.
Originally published on Forbes.com on June 1st, 2012