Federal Tax Code: Time for GLBT Civil Disobedience
"DOMA" has made it impossible for married Gay and Lesbian couples to complete the 1040 Income Tax Form and swear to its truthfulness at the same time. by Tully
(libertarian)
Tuesday, October 13, 2009
Gents,
My partner Scott and I are planning on filing a JOINT federal tax return in a few months, because we ARE legally 'spouses' under state law. We know there are consequences, but we are also hoping to engender a grass-roots movement that will see thousands of couples like us file apporpriately.... and then fight IRS efforts to increase our tax, amend our return, and/or charge penalities and interest via the courts. We've begun contacting gay blogs and media sources and are hoping this will take off....
For as long as there has been a federal income tax (only since 1917), the federal government has asked taxpayers to indicate their marital status. Taxpayers need not prove their status, they need only swear that all the information contained on the form is true.
And so, come April 15, I, along with other gay and lesbian couples in New Hampshire and other states permitting same-sex marriage, will have a choice: we can check off "married" on page 1 of our 1040, and sign the bottom of page 2 in good conscience that our return is truthful, or we can call ourselves 'single,' and sign that statement, knowing that calling ourselves 'single' would be a patent lie under state law.
The choice, of course, has both legal and financial consequences: two people filing as married pay far less in federal income tax than those same two people filing as single, especially if there is a large income disparity between them.
And so, for the first time in decades, I will actually engage in an act of civil disobedience under federal law, because I am choosing to answer honestly under state law. (One has to wonder, of course, just how the Feds will choose to pursue this: nowhere on the federal income tax form do they request 'gender'.) And if and when they do uncover it, and charge me with increased taxes and penalties and late fees, I will challenge it in federal court as long and as far as I am able.
And if even a small part of the 600,000+ gay couples in this country do the same, it will be a federal court logjam the likes of which we have never seen.
The problem, of course, stems from "DOMA," the so-called "Defense of Marriage Act," a 1996 law that contains two provisions. The first guarantees each state the right not to recognize a same-gender union performed in another state (mere political pandering, as the courts had already long-ruled that states had that right.) The second provision states that the federal government would define marriage as only between a man and a woman.
The problem with that approach, of course, is that it is not the federal government's jurisdiction to define marriage. There is no federal Constitutional provision permitting a federal law in this arena.
In fact, marriage laws are very specifically creatures of state jurisdiction. Nebraska law requires that couples be 19 if they don't have parental consent, while 17 year olds can marry with parental consent; in Hawaii those as young as 15 can marry with parental consent. Alabama and Kansas permit common-law marriage; most states no longer do. In Idaho, females must be tested for Rubella, and In New York, tests for sickle cell anemia may be required before marriage. In Rhode Island, first cousins can marry; In Illinois they can as long as they can not bear children; in Oregon they can if one was adopted; while in New Hampshire and Pennsylvania there is no first-cousin marriage permitted at all.
The rules for who can and who can not get married are state-specific, and the federal government has always accepted the definitions of the states, even though they differed from state to state. By imposing DOMA, the federal government has involved itself in a sphere that is clearly not within it's own jurisdiction, but, under the 10th Amendment, "reserved to the states or to the people."
So, on April 15, I will be checking "married," and I will be signing a sworn oath that I have told the truth.
Let the feds argue in court that I was wrong for so doing. And while I will do it alone if necessary, I invite other couples in our situation to join us.
Thom
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The views expressed
in this article are those of Tully only and
do not represent the views of Nolan Chart, LLC or its affiliates.
Tully is solely responsible for the contents
of this article and is not an employee or otherwise affiliated
with Nolan Chart, LLC in his/her role as a columnist.
I'm the managing editor of gayagenda.com and host of gayagenda.com's weekly blog talk radio program. I would like to have the author of this post join the show as a guest (show is live every Wed night 8-9 pm EST) to discuss this topic. I would like to have them call in as guest on Wed., Oct 21st.
Please email or call me at 954-306-8856 to discuss if interested. Thank you!
Posted By: Steven A. Rosile
Date: 2009-10-14 18:33:03
The Constitution does not allow Congress to overrule it's provisions via statute or act of Congress. The "full faith and credit" clause of the Constitution requires every state to honor the legal acts and pronouncements of the other states. So, while you are right that Congress does not have any authority over marriage it is also the case that Congress does not have the authority to waive the Constitutional requirement that states honor other states legal pronouncements.
Both parts of DOMA are defective in that Congress has no lawful authority to enact or enforce either provision of this so-called "law".
Kansas still allows for legal recognition of "common law" marriages but, unless there is parental consent, both parties must be eighteen years old for the marriage to be valid.
Steve, there is actually a little-discussed line of cases that holds quite strongly that a marriage validly entered into in one jurisdictsion does not have to be recognized as valid in other jurisdictsions where it is specifically counter to public policy. The strongest of these cases is  Osoinach v. Watkins, which held that a marriage that was lawful in Alabama ( a nephew with his uncle's widow) was considered incestuous in New York, and upon the death of former widow the intestacy statute did *not* permit the automatic transfer of the estate to the nephew as a result. Other cases allowed states to consider marriages invalid if the waiting period before a proveious divorce was not met, even if no such waiting period was required in the state where the marriage was performed: See Horton v. Horton, 198 P. 1105 (Ariz. 1921); Lanham v. Lanham, 117 N.W. 787 (Wisc. 1908). Many cases have reflected a general view of this kind. See, e.g., In re Vetas's Estate, 170 P.2d 183 (1946); Maurer v. Maurer, 60 A.2d 440 (1948); Bucca v. State, 43 N. J. Super 315 (1957); In re Takahashi's Estate, 113 Mont. 490 (1942); In re Duncan's Death, 83 Idaho 254 (1961); In re Mortenson's Estate, 83 Ariz. 87 (1957).  In none of these cases was it even suggested that the full faith and credir claus was violated, and all of these cases are current holdings. So, while I understand that it would appear that the faith & credit clause would require one state to recognize another state's marriage, the consistent judicial history is that marriage laws are not subject to that clause, and one state can in fact refuse to recognize another's valid marriage.Â
From that perspective, DOMA was unnecessary to protect states and pure pandering.
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