CONTACT: TOM SNEE
300 Plaza Centre One
Iowa City IA 52242
(319) 384-0010; fax (319) 384-0024
Release: Oct. 28, 2002
UI law professor finds weakness in law banning gay marriage
An article written by a UI law professor says that the absence of fixed
family definitions in the Internal Revenue Code should allow same-sex couples
in Vermont who have children to take advantage of some of the same federal
tax breaks given to married couples.
It also puts those couples in a position to challenge the constitutionality
of the federal law barring recognition of same-sex marriages.
Patricia Cain, the Aliber Family Chair in Law at the UI College of Law,
said that Vermont couples are in a unique position because the state allows
civil unions similar to marriage between partners of the same sex. Writing
in the Fall 2002 issue of the Capital University Law Review, Cain argues that
since Vermont law recognizes same-sex civil unions, the partners in those
unions could sue for discrimination if the IRS refuses to accept certain federal
Cain points out that the Defense of Marriage Act, passed by Congress in
1996, prohibits recognition of same-sex marriages, thus preventing same-sex
couples from claiming tax breaks afforded to married couples. In most states,
same-sex partners are considered merely domestic partners and are offered
few legal protections. However, while the Vermont law allowing same-sex civil
unions does not refer to the partners as spouses, it nevertheless treats their
relationship as spousal in all legal respects.
In Vermont, the state imposes legal responsibilities on married couples
and, similarly, on couples who are parties to a civil union, she wrote.
Cain also points out that the federal tax code does not define relationships
between people, and instead relies on the legal definition of those relationships
in the taxpayers state of residence. So, she asks, if couples in a civil
union are treated as spouses under Vermont law, what is the justification
for not treating them as spouses under federal tax law?
Cain doesnt believe there is a rational justification. Instead she
claims that the differential treatment accorded civil unions is more likely
the result of bias or prejudice against same-sex couples. Since Vermont treats
same-sex civil unions exactly like marriage for all purposes, she said the
federal tax law should treat the parties as married, too. If the federal government
claims that the Defense of Marriage Act (DOMA) prevents the IRS from treating
such couples as spouses, then the couple has standing to claim that DOMA is
unconstitutional. For DOMA to be constitutional under the equal protection
clause there must be some justification for the exclusion of same-sex spouses
other than bias or animus against lesbian and gay people.
Such animus should not be sufficient to justify a statute, she
wrote. Indeed, such animus
is also an insufficient justification
for the Defense of Marriage Act.
Cain said that same-sex partners with children are in position to receive
the greatest tax benefit from a civil union because Vermont law considers
the non-biological parent a stepparent. So while the partners are not allowed
to file joint 1040s because theyre not married, the stepparent
could take advantage of such tax breaks as child tax credits and head of household
filing status. Domestic partners, Cain said, do not enjoy such tax benefits
in states that do not allow civil unions.
Similarly, Cain said that if a same-sex civil union in Vermont breaks up,
the former partners should not have to pay federal tax on property divided
between them because the civil union law gives each partner an equal right
in the others property. While property transferred between domestic
partners may be subject to federal tax, Cain said the Vermont law means that
such transfers between civil union partners should be treated as would property
divided as the result of a divorce.
Cain ends her article with a call for action that ensures same-sex couples
are treated equally when it comes to taxes, and possibly lead to the downfall
of the Defense of Marriage Act.
Although most civil rights litigators tend to shy away from tax law,
Vermont's civil union statute gives public interest lawyers a unique opportunity
to fight for the equal rights of committed same-sex couples, she wrote.
There is no rational justification for such differential treatment in
a world in which civil unions are otherwise treated the same as marriage.
One could hope that a successful civil union challenge to the tax code would
also encourage legislators and administrators to rethink the role of all families
in the allocation of federal tax burdens.