Married gay couples to IRS: Sorry, no more lies

(image: Alan Light, Flickr)

Legally married gay couples this month will be filing joint tax returns to the IRS, pressing the federal government to again acknowledge that, by failing to recognize gay marriage, it routinely asks U.S. citizens to lie on their tax forms. “More people are refusing to lie on those forms even though the government is telling them to,” said Nadine Smith, director of gay rights group Equality Florida. Smith is gay and married and she says that she and her partner will not lie on their tax form this year. “It would be both dishonest and deeply humiliating to now disavow each other or our marriage and declare ourselves single,” she said.

Smith’s group is waging a national campaign called “Refuse to Lie.”

“The Federal Government must stop requiring… gay couples to deny the existence of our families and hide our marriages. It is dehumanizing and it is wrong…. The government has chosen to discriminate and we choose to expose [its] bigotry,” explains the campaign website.

The campaign brings to mind debate last year around the “Don’t Ask, Don’t Tell” U.S. military policy that prevented gay soldiers from serving openly. A compelling argument made by opponents of the policy was that it committed the government to abetting deceit. The unworkability of such a position was thrown into relief by arguments that trust among soldiers and among soldiers and their commanders was essential to fostering unit cohesion and to maximizing effectiveness.

Don’t Ask, Don’t Tell was officially ended as policy in December, the details of its repeal yet to be worked out by military leaders.

The business section blog at the New York Times reports on the Florida campaign.

Nina E. Olson, the national taxpayer advocate who acts as an ombudsman for the I.R.S., acknowledged the uncertainty surrounding federal taxation of same-gender spouses in an annual report to Congress. In the report, she said that taxpayers may take a filing position without penalty if there is “substantial authority” to do so, such as a court case that hasn’t been overruled by the United States Court of Appeals. And there happen to be two such cases, which are currently on appeal.

In July 2010, the Federal District Court in Massachusetts declared the Defense of Marriage Act — the federal law known as DOMA that defines marriage as between a man and a woman — as unconstitutional in two cases. They are now being appealed in the First Circuit. “Thus, there may be substantial authority for same-gender spouses to take certain tax positions as married as long as the Massachusetts district court’s opinions stands,” Ms. Olson said in the report.

The “Refuse to Lie” Web site warns same-sex couples of the risks of filing jointly, and explains different options to both adhere to the law while expressing that they disagree with it. One way to do that would be to put an asterisk by the “single” box, and then indicate at the bottom of the tax form that you are “only single under DOMA.” Another option, the site says, is to attach a note with a similar message.

Last month the Obama Administration announced that it believed the Defense of Marriage Act was unconstitutional and for that reason the Justice Department would no longer defend DOMA in court.

House Republican leaders then took up the cause but analysts have said the Republican leaders’ position is becoming increasingly untenable by the day.

Linda Hirshman writing at Slate was particularly skeptical that any new defense of the 1996 law could succeed.

Whoever the Republicans hire will start where the Justice Department finished, arguing that there is nothing suspicious about [DOMA]. This will be tricky. Heightened scrutiny is required when the target group has experienced a “history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics.” And the legislative history conservatives will be unspooling explicitly reveals that Congress [with DOMA] intended to disadvantage homosexuals: “Closely related to the interest in promoting traditional marriage is a corresponding interest in promoting heterosexuality,” the legislators wrote at the time. “[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop.” So the newer, more truthful DOMA defendants will now be in the peculiar position of defending a law quite purposely intended to discriminate against homosexuals on the grounds that homosexuals have not been the victims of purposeful discrimination.