(Now also in Orange – promoted by Brian Leubitz)
I’m doing my taxes today. It’s always a fun weekend around the house. Or, well, completely devoid of fun is a better description. At any rate, you all have been there so I don’t need to describe the emotions of the tax weekend.
But guess what? I get extra super duper fun! As one of the lucky 18,000 or so couples that got married in California, we get to also prepare a phony federal tax form that will not actually be filed. Because somehow the federal government doesn’t really need to give full faith and credit to the marriage licenses issued to same-sex couples.
I posted the news on the book of faces today that I’d be doing the glorious chore of taxes, and friend of Calitics, Chad Jones, spoke up:
We paid an extra Gay Tax not being able to file our federal return jointly. It’s a total pain in the ass to have to do a phony federal return to base your state taxes on (which makes the Gay Tax glaringly obvious). And the FTB can’t handle electronic filing from same-sex couples so you have to mail it in and wait for your refund.
Like Chad, we too will be paying the gay tax. There is simply no other reason than our sexuality that we are paying this tax. I’m not going all anti-tax here, it’s just that I don’t see the reason that one couple should be treated differently than another for tax purposes.
Just as a reminder to all any judges who happen across the issue, this is actually in the constitution:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (U.S. Constitution, Art. IV, Sec. 1)
But, really the failure of courts to enforce the full faith and credit is a bigger issue than taxes, it has a larger effect on our system of property generally. In a very real way, that we don’t apply this clause allows people to escape valid obligations. It is a crack in the greater “Rule of Law.” Or, well, Harvard Law Professor Joseph William Singer said it a lot better just after the Massachusetts marriages were performed:
Now that same sex marriages have been occurring in Massachusetts for almost a year, the issue of interstate recognition is no longer merely a theoretical issue. Most scholars have either argued that the full faith and credit clause does not mandate recognition of same sex marriages or that it does so for limited purposes or for marriages of Massachusetts residents but not nonresidents seeking to evade their restrictive home state marriage laws. This article argues that the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the “effects thereof” language of the full faith and credit clause. Rather than focusing on the rights of same sex couples to have their valid Massachusetts marriages recognized elsewhere, we should focus on the obligations inherent in the marriage relationship. Both Congress and the majority of states have passed so-called Defense of Marriage Acts (DOMAs). If these laws are constitutional, they effectively authorize partners in same sex marriages to relocate to other states and evade their obligations as spouses and parents under Massachusetts law. Those states have made themselves havens for fleeing debtors. Using traditional and modern choice-of-law analysis, as well as analogies to the law of divorce and corporate governance, this article argues that the full faith and credit clause should be interpreted to require recognition of marriages that are valid where celebrated to avoid inconsistent obligations, to allow free interstate travel and commerce, and to prevent the states from authorizing married partners to walk away from their concededly valid and persisting obligations under Massachusetts law. (Stanford Journal of Civil Rights and Civil Liberties)
Eventually, the issue of marriage equality will all get sorted out. After all, the arc of history is long, but it bends towards justice. But in the interim, there is no “tax fairness” and the rule of law itself bends as the tortured logic of bigotry pushes it to its limits.
And so we wait on that arc to continue its bend.