Tuesday, October 13, 2009

The Federal Tax Code...time for GLBT Civil Disobedience

For as long as there has been a federal income tax (only since 1917), the federal government has asked taxpayers to indicate their marital status. Taxpayers need not prove their status, they need only swear that all the information contained on the form is true.

And so, come April 15, I, along with other gay and lesbian couples in New Hampshire and other states permitting same-sex marriage, will have a choice: we can check off "married" on page 1 of our 1040, and sign the bottom of page 2 in good conscience that our return is truthful, or we can call ourselves 'single,' and sign that statement, knowing that calling ourselves 'single' would be a patent lie under state law.

The choice, of course, has both legal and financial consequences: two people filing as married pay far less in federal income tax than those same two people filing as single, especially if there is a large income disparity between them.

And so, for the first time in decades, I will actually engage in an act of civil disobedience under federal law, because I am choosing to answer honestly under state law. (One has to wonder, of course, just how the Feds will choose to pursue this: nowhere on the federal income tax form do they request 'gender'.) And if and when they do uncover it, and charge me with increased taxes and penalties and late fees, I will challenge it in federal court as long and as far as I am able.

And if even a small part of the 600,000+ gay couples in this country do the same, it will be a federal court logjam the likes of which we have never seen.

The problem, of course, stems from "DOMA," the so-called "Defense of Marriage Act," a 1996 law that contains two provisions. The first guarantees each state the right not to recognize a same-gender union performed in another state (mere political pandering, as the courts had already long-ruled that states had that right.) The second provision states that the federal government would define marriage as only between a man and a woman.

The problem with that approach, of course, is that it is not the federal government's jurisdiction to define marriage. There is no federal Constitutional provision permitting a federal law in this arena.

In fact, marriage laws are very specifically creatures of state jurisdiction. Nebraska law requires that couples be 19 if they don't have parental consent, while 17 year olds can marry with parental consent; in Hawaii those as young as 15 can marry with parental consent. Alabama and Kansas permit common-law marriage; most states no longer do. In Idaho, females must be tested for Rubella, and In New York, tests for sickle cell anemia may be required before marriage. In Rhode Island, first cousins can marry; In Illinois they can as long as they can not bear children; in Oregon they can if one was adopted; while in New Hampshire and Pennsylvania there is no first-cousin marriage permitted at all.

The rules for who can and who can not get married are state-specific, and the federal government has always accepted the definitions of the states, even though they differed from state to state. By imposing DOMA, the federal government has involved itself in a sphere that is clearly not within it's own jurisdiction, but, under the 10th Amendment, "reserved to the states or to the people."

So, on April 15, I will be checking "married," and I will be signing a sworn oath that I have told the truth.

Let the feds argue in court that I was wrong for so doing. And while I will do it alone if necessary, I invite other couples in our situation to join us.

1 comment:

John Bisceglia said...

I'm behind you 100% on this, Thom. It is time for more people like you to stand up to the federal bully.

You got a nice shout-out today over at The Picket Line, although you may not appreciate the attention from them or myself politically!
A type of tax protest that isn’t quite tax resistance but seems worth keeping an eye on involves married gay couples who plan on defying the federal Defense of Marriage Act by filing their tax returns as though their marriages were recognized by the federal government. Thom Winchester explains why he and his husband plan to file as “married filing jointly” next year, and why he thinks the Constitution is on his side.