The IRS Just Made Life Very Difficult For States Without Marriage Equality

“[T]his is just going to prompt more litigation,” one LGBT legal advocate says. posted on

Jim Obergefell (right) and John Arthur after they returned from their wedding flight at Landmark Aviation at Cincinnati’s Lunken Airport. The couple were married during a short ceremony on the plane, on the tarmac, at Baltimore/Washington International Thurgood Marshall Airport. The Cincinnati Enquirer, Gary Landers / AP

WASHINGTON — The Obama administration’s decision Tuesday to recognize all same-sex couples’ marriages for tax purposes regardless of where they live will force states to recognize that they have married same-sex couples living within their borders — even if the states themselves ban such marriages.

In the wake of the Supreme Court ruling striking down the Defense of Marriage Act’s ban on recognition of same-sex couples’ marriages, the Internal Revenue Service adopted “a general rule, for Federal tax purposes, that recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.”

The move means states that ban same-sex couples from marrying will nonetheless have to deal directly with married same-sex couples living in their states come tax time — putting pressure on executive officials, lawmakers, and courts to address the issue, whether they want to or not.

“The reason I brought my case against DOMA all the way to the U.S. Supreme Court was because of a massive estate tax bill I received from the federal government after my beloved spouse, Thea Spyer, passed away. 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,” Edith Windsor said in a statement Tuesday. “I feel so proud and grateful to my country and to our president.”

That is true as to the federal government — and now the fallout from the case has the potential to press the issue even further, because of the reach of Thursday’s ruling into the 37 states where same-sex couples remain unable to marry.

This is so because, beginning Sept. 16, all married couples — regardless of sex and regardless of where they live — generally will have to file their taxes as “married.” A same-sex couple who get married in California but live in Arizona, for example, will be filing their federal taxes as a married couple — despite Arizona’s ban recognition of such couples’ marriages.

Jon Davidson, the legal director at Lambda Legal, said the decision is “going to make things more complicated for the states.” Before DOMA’s bar on federal recognition of same-sex couples’ marriages was struck down, married same-sex couples in states like Massachusetts had to file as unmarried at the federal level because “people were treated as married for state purposes but not federal ones,” he said. Now, he explained, the difficulties will be reversed — with same-sex couples being treated as married by the federal government but not by many state governments.

The IRS’s decision is going to set up a series of questions around the country because more than half of the states ban same-sex couples’ marriages by their state’s constitution. At the same time, however, many states base their own tax filing system on federal filings.

“I expect what will happen is that Ohio will say you have to file as single, and that they will do that based on the constitutional amendment,” Davidson said. Santa Clara University Law professor Patricia Cain agreed, telling BuzzFeed states like Ohio with such amendments will have to “change their state income tax reporting rules to unhook them from federal reporting.”

Looking at a pending case in which a federal judge in Ohio has questioned Ohio’s failure to recognize the marriage of a same-sex couple, Jim Obergefell and John Arthur, who married in another state, however, Davidson also said, “But, as the Obergefell decision suggests, this is just going to prompt more litigation.”

Davidson pointed out that, in addition to Ohio, there are federal lawsuits by same-sex couples seeking marriage recognition pending in federal courts in Arkansas, Kentucky, Louisiana, Nevada, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, and Virginia, and state lawsuits pending in Arkansas, Kentucky, Illinois, New Jersey, New Mexico, and Texas.

In one of his organization’s own cases — challenging the fact that New Jersey does not allow same-sex couples to marry — Davidson said that the organization has filed briefs with the court about the various benefits now extended to married same-sex couples that are not available to couples with civil unions in New Jersey. “We’re probably going to be filing something more based on today’s tax ruling.”

Roberta Kaplan, Windsor’s lawyer at the Supreme Court, said the decision would put additional pressure not just on courts but also on state legislators — a point echoed by Davidson.

“Today’s decision will only put more pressure on states like New Jersey that do not treat their gay citizens equally since it will become increasingly intolerable for those states to continue to treat married gay couples as second-class citizens, especially given that the IRS will now afford them equal respect and dignity under the law,” Kaplan said in a statement. Davidson also pointed to legislators in Hawaii and Illinois on that front.

Because of all the pending court cases and those new ones likely to come out of the coming issues as tax time comes around, moreover, Davidson put a quick timeline on when the question of same-sex couples’ marriage rights will return to the Supreme Court.

“I expect the Supreme Court is going to need to revisit these issues in the next two to four years,” he told BuzzFeed — adding that Thursday’s decision “will be an additional force moving things in the right direction.”

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