Why the Tax Decision Matters for Same-Sex Marriage

On Thursday, the U.S. Treasury Department and the Internal Revenue Service issued regulations which provide that the federal government will now recognize all same-sex marriages for tax purposes, whether or not couples live in states where gay marriage is legal. This is the most far-reaching implementation of the Supreme Court’s ruling, earlier this summer, overturning the federal Defense of Marriage Act (DOMA).
DOMA had barred the federal government from recognizing same-sex marriages. When the Supreme Court ruled it unconstitutional in late June, it did not offer much guidance as to how the government should put that decision into practice. The Treasury and I.R.S. rulings are sweeping in their coverage and impact, not to mention their symbolic resonance: Could there be a more decisive way for a government to declare its citizens married than to require that they say so on their tax forms?

The new rules mandate that if you are in a same-sex marriage, no matter where you live, you have to file federal taxes as a married person and be subject to relevant tax rates. The I.R.S. says that more than two hundred provisions in the tax code and other federal regulations refer to marriage, according to Bloomberg News. Couples with unequal incomes could end up paying less than they’d paid as single people, while those with relatively equal incomes could have to pay more, Bloomberg said. This also makes it possible for gay spouses to inherit money without having to pay taxes on it, as heterosexuals can now do.
But the truth is that, on Thursday, many gay Americans and their allies weren’t thinking about what this would mean for their tax bills; this was, instead, about fair and equal treatment.
The regulations will also likely prove useful to the gay-marriage cause. If your same-sex marriage was valid where it was performed, the federal government will recognize it, no matter where you live. (This is the opposite of the pre-DOMA rule, which said that the federal government would not recognize your valid marriage, even if you lived in a state that did.) That means that married same-sex couples living in states without marriage equality will see the federal government recognize their marriages, while their state government doesn’t. Couples in, say, Alabama, now get a government-issued mark of validity; this could pressure such states to take another look at their own laws governing same-sex marriages.
The change is especially significant because litigation around same-sex marriage has seen a sharp increase since the Supreme Court ruling. Court battles are being waged in eighteen states where gay marriage is not yet legal. Treasury Secretary Jack Lew said that Thursday’s announcement “provides certainty and clear, coherent tax-filing guidance for all legally married same-sex couples nationwide.” He also said that the ruling “assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.” That is exactly what advocates for same-sex marriage sought from the federal government.
Thursday’s decision also increases the chances that, in the next three to five years, states without marriage equality will be seen as outliers, increasingly isolated not only from other states but from the federal government, as well.
Edie Windsor, the plaintiff in the Supreme Court case that opened the door to these new rules, said in a statement, “Thanks to today’s ruling at the Treasury Department, no one will have to experience the pain and indignity that I went through ever again.” She spoke for many.
Richard Socarides is an attorney, political strategist, writer, and longtime gay-rights advocate. He served as White House Special Assistant and Senior Adviser during the Clinton Administration. Follow him on Twitter @Socarides.
Photograph by Stephen Lam/Reuters