For as long as there has been a federal income tax (1917), the federal government has asked taxpayers to indicate their marital status on their tax forms. 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. It is even worse when one spouse adds the other to their health insurance: gay and lesbian couples get taxed on "imputed income," the amount of the "additional income" that the federal government pretends we have based on the value of our spouse's health insurance policy. For an average middle-class working couple, this amounts to more than $3,000 annually in federal income tax.
The problem stems from "DOMA," the so-called "Defense of Marriage Act," a 1996 law that privides a federal government definition of marriage as only between a man and a woman.
Constitutionally, it is not the federal government's jurisdiction to define marriage. There is no federal Constitutional provision permitting a federal law in this arena. Marriage laws are very specifically creatures of state jurisdiction. 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." At least one federal judge, in a case brought by the Commonwealth of Massachusetts, has ruled that DOMA is Unconstitutional for precisely the reasons we have been arguing in this blog.
And so, I am choosing to engage in an act of civil disobedience under federal law, because this year I will choose to answer my marital status honestly under state law, and I am asking other married gay and lesbian couples to join me.
One can only wonder how the Feds will choose to pursue this:
Nowhere on the federal income tax form do they request 'gender'.
Millions of Americans file Joint Income Tax returns annually.
Any effort by the IRS to root through millions of tax returns and try to determine genders would be a cost-prohibitive nightmare for them.
If every gay married couple that gets 'caught' files objections with the IRS and then takes them to court, citing the Unconstitutionality of DOMA, it is likely that the IRS court calendar with result in a logjam...and time is on our side as all the existing suits wind their way through the courts.
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.
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