The Best Argument for Same-Sex Marriage Isn't Love—It's Taxes Commentary
The Best Argument for Same-Sex Marriage Isn't Love—It's Taxes
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JURIST Guest Columnist Sara Benson of the University of Illinois College of Law discusses how the best argument for same-sex marriage is that same-sex partners should be treated equally under the law …

As you likely have heard, the US Supreme Court issued an opinion striking down part of the federal Defense of Marriage Act (DOMA) last summer in the Windsor [PDF] case. What you may not have heard as much about is how the aftermath of this decision will change the tenor of the legal arguments advocates make in favor of same sex marriage, especially in light of IRS interpretations [PDF] of the decision. The Windsor
decision struck down DOMA, but it did not tell the government how to interpret federal regulations related to marriage and the relationship between civil unions, same-sex marriage, and “traditional” marriage. In other words, the Windsor decision left open much room for interpretation by the government.

The single largest issue related to DOMA is whether same-sex couples have the right to receive the same treatment under the federal tax code as “traditionally” married couples. Indeed, the purpose of DOMA was to deprive same-sex couples of any benefits from federal law related to marriage by limiting federal recognition of marriage to a “legal union between one man and one woman … ” It was safe to presume, after the Windsor decision declared DOMA to be unconstitutional, that same sex couples would now be able to file taxes as “married” under federal tax laws and receive inheritance tax exclusions on the death of a spouse. In fact, the exact issue in the Windsor case was whether Edith (Edie) WIndsor could be refunded the $363,053 in estate taxes that she paid after the death of her legal (under New York law) same-sex spouse. However, the issue remained as to whether civil unions equated to marriages under the tax code. The government has emphatically said “no” and that answer has huge implications for same-sex marriage advocates going forward. Indeed, in my opinion, the government recognized the difference between marriage and civil unions in an effort to help gay rights advocates make more effective arguments going forward. It is no secret that President Obama outwardly supports gay marriage rights.

Now, the best argument (or at least the easiest one) in favor of same-sex marriage, in states where civil unions are legal, is that a coupling other than marriage is a separate, but unequal status. Formerly, when neither same-sex married couples nor same-sex couples with civil unions could obtain federal benefits because of DOMA, the argument that had to be made was that civil unions are inherently inferior to marriage and subject couples to second-class status. Of course, that type of argument still applies, as marriage is a fundamental right and has been recognized as one from as far back as 1888, but there is a far easier argument to make now. Now, advocates in states without same-sex marriage rights need not go that far. The construct of a civil union or a domestic partnership, even if granted the exact same rights under state laws, is separate, but unequal under the federal tax laws. Indeed, this argument has already been successful in New Jersey, where the state supreme court refused to stay same-sex marriages during an appeal for that very reason. There has been a flurry of movement in the same-sex marriage movement since the Windsor decision. My home state of Illinois, for instance, passed an amendment to state law to recognize same-sex marriages as of June 1, 2014. Usually, when one listens to the floor debates regarding these types of proposed amendments, one hears themes of fundamental rights, equal treatment of gay and lesbian citizens and their children, and the like. But, the easiest and best argument is often left out. In my opinion, the best argument post-Windsor for same-sex marriage in states like Illinois is not about the right for individuals to love whomever they choose, but rather for same sex partners to be treated equally under the law—in particular, federal tax law.

Sara Benson is lecturer in law at the University of Illinois College of Law. She teaches legal writing and serves as the faculty advisor to the Moot Court Program. She earned her J.D. from the University of Houston Law Center where she graduated magna cum laude and served as a notes and comments editor for the Houston Law Review. She earned her LL.M. from Boalt Hall School of Law at the University of California, Berkeley.

Suggested citation: Sara Benson, The Best Argument for Same-Sex Marriage Isn’t Love—It’s Taxes, JURIST – Forum, Apr. 11, 2014,

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