DOES THE DEFENSE OF MARRIAGE ACT PREVENT THE INTERNAL REVENUE SERVICE FROM TREATING ALL “MARRIED” COUPLES EQUALLY?

Abstract

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Nevertheless, when Congress enacted the Defense of Marriage Act in 1996, it resulted in the Internal Revenue Service treating same-sex married couples differently than heterosexual married couples. The different treatment with a regard to a range of tax issues from filing status to wealth transfers to exclusion from gain on sales of personal residences has raised many Equal Protection challenges. The United States Supreme Court will actually examine the issue in its current session. In the meantime, this article attempts to outline the legal and tax issues that have given rise to these challenges.