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Will gay New Orleanians pay an IRS marriage penalty

8th July 2013   ·   0 Comments

By Christopher Tidmore
Contributing Writer

Nearly two weeks after Gay and Lesbian Louisianians cheered the Supreme Court’s 5-4 decision to overturn the Defense of Marriage Act, few are sure how, or even whether, it will have any practical effect on their day to day lives.

Regardless of DOMA, in areas from adoption to divorce, the state constitution’s ban on same-sex marriage creates technical roadblocks, even if a couple legally wed in the 13 states that now allow Gay Marriage. Yet, of more immediate concern was whether the Federal Internal Revenue Service would treat gay couples wed in the Northeast, in Oregon, or now California as married—should they reside in the Pelican State. In an interview with The Louisiana Weekly, local IRS spokesperson Dee Harris Stepter essentially admitted that the DOMA ruling was so unexpectedly broad, her superiors remain unsure.

As she explained, “We are reviewing the important Supreme Court decision on the Defense of Marriage Act. We will be working with the Department of The Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.”

Whether that translates in LA’s same-sex couple filing joint federal tax returns and qualify for the spousal exemption in federal estate tax remains to be seen. And, the confusion about the eligibility for spousal benefits does not end there.

Various federal agencies utilize disparate criteria in judging whether a marriage is valid. Currently, some departments rule the marriage legal only if the state where the couple currently live recognizes it—as with common law (heterosexual) unions. For other federal agencies, their benefit criteria is based upon from which state the couple filed their most recent tax return. Still other bureaus only count where the couple last lived when they applied for benefits, and finally, some Washington-based offices determine marital status by the laws of particular state in which couple initially wed.

Louisiana Forum for Equality Executive Director SarahJane Brady hoped the last category will immediately become the standard, effectively legalizing gay marriage in a federal context in all fifty states if the marriage took place in one of 13 states in which it is legally allowed. As she explained, “Repeal of the federal Defense of Marriage Act means the federal government must recognize the legal marriages of same-sex couples. But, it does not require any state to legalize marriage equality that has not already done so. Louisiana is one of those 37 states that banned marriage to same-sex couples.”

Legislation introduced by Dianne Feinstein of California a week ago seeks to correct that discrepancy, ensuring same-sex couples are not excluded from federal benefits even if they live in states where their marriages remain unrecognized. Should her bill pass the Democratically-controlled Senate, though, doubtfully would the Republican-led House allow her measure to become law. And, if the Obama Administration acted unilaterally by executive order, as the President appeared to indicate he would when this newspaper went to press, further litigation will assuredly ensue.

Mainly, due to the fact that fundamentally the high court did not declare a constitutional right to same-sex marriage. The DOMA ruling, and the Perry v. Hollingsworth decision, each achieved the priorities of the homosexual community, yet only on technical grounds.

The later which left in place a California federal trial court decision overturning California’s same-sex marriage ban, Proposition 8, occurred because Gov. Jerry Brown refused to defend the law before the US Supreme Court. The private individuals who fought on behalf of the seven million voters who approved Prop 8 were said to have no legal standing to bring their case, a ruling which joined three of the court’s liberals with conservatives Scalia and Roberts.

The former, DOMA, was judged to violate the equal protection clause by allowing for gay marriage in some states, but disallowing federal benefits for those legally married residents of those same states. It said nothing of their federal regulatory status in other states.

To some extent, the administration has stepped in already. Defense Secretary Chuck Hagel immediately declared that the military departments would extend spousal benefits universally, so a lesbian solider at Fort Polk can enjoy all benefits of marriage. At least until she leaves the base. Then what?

No one yet knows whether the DOMA ban extends far enough to allow the reciprocal powers of the interstate commerce clause, to trump State constitutional bans. For example, will Louisiana allow divorces of same-sex couples legally married in the thirteen, including California, that now allow it. And, what of federal spousal rights in the two states, New Mexico and New Jersey, who neither allow nor ban homosexual unions.

Moreover, what about state laws barring same-sex couples from adopting children. Will the right to marry in the Northeast trump Louisiana law? The Courts left these wrinkles for the states to work out either in litigation or law, and State Senator Conrad Appel of Metairie said in the wake of the rulings that he expects the next legislative session to focus on clarifying these issues—and not in a way which expands gay rights.

Of course, for some African-American activists who cheered the overturn of DOMA on the day after this decision, may regret their cheers. The Supreme Court clearly used the equal protection argument in returning the matter of the University of Texas’ affirmative action admissions policy to the lower courts.

The High Court will revisit racial preferences next year when a Michigan case on affirmative action will be heard. The same arguments that decided DOMA—and the narrow rebuke that seven of the Justices offered the lower court and UT—signals a possible overturn of affirmative action, according to some Supreme Court observers, on the same equal protection grounds.

This article originally published in the July 8, 2013 print edition of The Louisiana Weekly newspaper.

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