No Taxation with Discrimination: Ending DOMA and Beyond Equality
By Stuart Gaffney and John Lewis, Marriage Equality USA
Last week as we were busily collecting our 2012 receipts, W-2 and 1099 forms and preparing to hit the send button on our income tax returns, we thought maybe, just maybe, this year might be the last that legally married lesbian and gay couples will have to lie to their federal government about the nature of their love and relationships and file their taxes as supposedly single people. If the United States Supreme Court in the historic United States v. Windsor case upholds its duty to enforce the Constitution and strikes down section 3 of the misnamed Defense of Marriage Act, this indignity and real cost to thousands of same-sex couples will finally end. For many lesbian and gay couples, not being able to file their taxes jointly means writing a check to the same federal government that openly discriminates against them for thousands of more dollars – money that they, just like anyone else, could use for health care, retirement, emergencies, or a down payment on a house.
Indeed, for us it was the evening of April 14, 2003 – ten years ago – that we made the decision to become active in the emerging marriage equality movement. Our papers and calculators strewn across our kitchen table, we started to fill out our tax return forms, and we remember getting to the section pertaining to marital status. We realized at that moment that our government was forcing us with our own hand to deny who we were as people and deny the truth of our relationship by requiring us to check the “Single” box – even though at that point we had been together for 16 years. We then had to turn the form over and sign “under penalty of perjury” that we were telling the truth. And when we did the math, we learned that we were paying almost 40 percent more in taxes than if we had been able to file jointly.
It was time to get involved. We decided to attend the rally at San Francisco City Hall on February 12, 2004, National Freedom to Marry Day, and when we arrived it was the first hour that San Francisco was issuing marriage licenses to same-sex couples. We bolted into City Hall, got married (only to have it taken away 6 months later), and have been working for marriage equality ever since.
For us, it has now been 25 years of denying who we are to our federal government; for many other lesbian and gay couples, it has been much longer. But a wonderful 83-year-old lesbian, Edie Windsor, may bring down the whole house of cards. When Edie lost the the love of her life, Thea— her partner of 40 years and legally married wife—the federal government presented Edie with an estate tax bill of $363,000 that she would not have had to pay if she and Thea had been a heterosexual couple. Edie fought back along with many, many others in our community, and if we are successful at the Supreme Court, DOMA will no longer deprive married same-sex couples of over 1,100 protections, rights, and responsibilities under federal law that all other married couples have. If Section 3 of DOMA is found unconstitutional, it would have far-ranging implications, including opening the door to green card applications for bi-national couples, finally allowing LGBTIQ Americans to sponsor their spouses for immigration and live their lives together at last. The end of DOMA could be especially important for protecting older lesbian and gay couples through spousal social security benefits and retirement and pension rights. Children of married lesbian and gay couples would also benefit greatly by receiving the protection and respect for their families that heterosexual families already have.
Benjamin Franklin once wrote that “nothing can be said to be certain except death and taxes,” but Martin Luther King declared that “the arc of the moral universe is long but it bends towards justice.” President Obama added: “But here is the thing: it does not bend on its own. It bends because each of us in our own ways put our hand on that arc and we bend it in the direction of justice…”
As we begin to anticipate what the Supreme Court will decide in the marriage equality cases, we take heart in how much our community is bending the arc toward justice and equality. Our country seems poised on the verge of historic change. Now more than ever, the momentum seems unstoppable. It seems as if almost every day in the news, another leader announces they’ve “evolved” on DOMA and marriage equality. Just over three weeks ago, Senator Claire McCaskill of Missouri (a state that in 2004 passed an anti-marriage equality ballot initiative by over 70 percent) announced her support for the freedom to marry: “I have come to the conclusion that our government should not limit the right to marry based on who you love. …[M]y children have a hard time understanding why this is even controversial. I think history will agree with my children.” Less than two weeks ago, Senator Joe Donnelly, who narrowly won election in Indiana in November 2012, proclaimed that he opposed “enshrin[ing]” in the Constitution “an ‘us’ and a ‘them,’ instead of a ‘we.’ …I have concluded that the right thing to do is to support marriage equality for all.” And this change is not limited to marriage equality. As Senator Jay Rockefeller of West Virginia stated in announcing his support for the end of DOMA just over three weeks ago, “I’m against discrimination in all its forms.”
When the Supreme Court decides the Windsor case and the Proposition 8 case in the next couple months, it could announce landmark decisions striking down DOMA, invalidating Proposition 8, and establishing heightened constitutional protection for lesbian and gay people in all aspects of our lives. It could issue much narrower decisions, or indeed rule against us. Decisions invalidating section 3 of DOMA and Proposition 8 on any grounds would be a big step forward for our movement. But narrow decisions would mean that we still have work to do to extend to all same-sex couples the over 1,100 federal rights and protections that marriage provides and to establish the freedom to marry as a fundamental right nationwide. As marriage equality is but one important element of the movement for full LGBTIQ equality, the work to pass the Employment Non-Discrimination Act, to secure much needed rights and protections for transgender persons, to support LGBTIQ youth, and to achieve many other community goals will continue as well. We as LGBTIQ people, along with our allies, will continue to bend the arc of the moral universe toward freedom, justice, and equality.
Stuart Gaffney and John Lewis, together 26 years, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.
This piece was originally published in the San Francisco Bay Times.
Photo credit: Jenny Pizer