FEDERAL DISCRIMINATION OF MARRIED SAME-SEX COUPLES

Abstract

As the discussion and debate in the political arena intensifies concerning the social aspects of same-sex marriage, there are also adverse economic and legal effects on same-sex couples due to the Defense of Marriage Act (DOMA). In order to sample the effect of DOMA, we examined the tax consequences of the inability of such couples to file a tax return based on “married filing jointly” status by surveying same-sex couples who were married in Massachusetts. After comparing their current tax liability versus their theoretical tax liability using the “married filing jointly” status, we found that sixty-eight percent of those couples suffered an average tax penalty in 2008 of $2,495. Based on this actual adverse impact, we examined a legal remedy based on the failure to accord deference to the States with respect to matters specifically involving marriage in violation of the 10th amendment to the United States Constitution.