The Gay Tax: How the Estate Tax Marital Deduction Costs Same-Sex Couples $3.3 Million
The Williams Institute of UCLA School of Law has released a study [pdf] that shows that same-sex couples are assessed an average of $3.3 million more in taxes upon the death of their partner than a similarly situated opposite-sex couple. Because estate taxes are set federally, the Defense of Marriage Act prohibits even married same-sex couples from taking advantage of the marital deduction.
Says Michael D. Steinberger, the author of the study:
Even in 2010, when the estate tax is currently slated to be repealed, federal law allows different-sex married couples to shelter an additional $3 million in capital gains when a partner dies. Regardless of your views about this tax, it is a costly implication of legal discrimination against gay and lesbian couples.
The study also estimated that if the current laws are not changed, gay and lesbian couples will have lost more than $3.5 billion in the decade preceding 2011. Steinberger advises that: "As Congress turns to legislation in December to address the estate tax before it disappears in 2010, it should address these inequalities for same-sex couples and their families."
The cost to provide equal benefits to same-sex couples would be one twentieth of one percent (.05%) of the total federal government revenue.
The full study, Federal Estate Tax Disadvantages for Same-Sex Couples [pdf], is available at the Williams Institute website.
Have a question, comment, or response? Share your thoughts.The Evils of DOMA: COBRA and Health Care
I spoke yesterday about the importance of the word "marriage" and why it was impossible to fight for the rights without also fighting for the word. Many current federal programs and benefits only recognize married partners. While we do not yet know how the federal government will deal will civil unions and domestic partnerships following the repeal of the Defense of Marriage Act (DOMA)—the statute allowing the federal government to ignore same-sex spouses—it is unlikely that the federal definition of marriage will be expanded to include these other relationships. As a result, despite states like Oregon, Washington, and Nevada offering expanded domestic partnerships with all of the rights and responsibilities of marriage, only same-sex partners married under the laws of Massachusetts, California, Connecticut, Iowa, Vermont, Maine, or New Hampshire would actually have access to these federal programs.
COBRA is a federal law that allows workers who were laid off by an employer who staffs more than 20 employees to retain their health insurance benefits for themselves and for their spouses and children. Because of DOMA, COBRA does not currently apply to any same-sex couple. This means that the gays and lesbians among the current 30 million unemployed Americans are also being denied affordable healthcare for their families. The repeal of DOMA is necessary, but will still not suffice in the states in which same-sex couples have "won" the rights of marriage but not the word.
While I appreciate to some extent those who say they support civil equality for gays and lesbians but not the conveyance of the word marriage, they must understand that domestic partnerships cannot simulate all of the rights of marriage. Even with the assistance of an attorney and every legal document he could produce, same-sex couples can not be equal until they can marry.
Have a question, comment, or response? 1 person does.Brazilian Man Denied Ability to Live with US Partner
Family Fairness discussed in March how same-sex couples were hurt by anti-gay immigration policies. Because of the Defense of Marriage Act (DOMA), a gay or lesbian United States citizen is unable to sponsor his or her partner for residency. Hope was on the horizon in May, when the Senate held a hearing on the Uniting American Families Act, a bill designed to give committed same-sex couples the ability to reside together in the country.
Unfortunately, the wheels of progress turn slowly. Last week, a Brazilian man was denied asylum to live in the United States with his Massachusetts partner, despite the couple's Massachusetts marriage license and co-ownership of a home. Because same-sex partners are not eligible for automatic citizenship when one partner is a US citizen, the couple was required to file a special asylum application. Rather than respond to their request, US Attorney General Eric Holder ignored it. The application has now lapsed, and the couple's request effectively denied.
The couple plans to initiate a legal challenge to DOMA for its violation of immigration and humanitarian laws. However, they have already spent approximately $250,000 in legal bills over the course of their forced separation, which has lasted more than two years. Until the passage of the Uniting American Families Act or the repeal of DOMA, this story will repeat. Couples should not be denied their basic human right to be together simply because of the sex of their partner. Shame on Attorney General Holder for dragging his feet on this important issue.
Have a question, comment, or response? Share your thoughts.Respect for Marriage Act - The DOMA Killer
This week, New York Representative Jerrold Nadler introduced the Respect for Marriage Act, a bill intended to repeal Section 2 of the 1996 Defense of Marriage Act. While Section 1 — which permits states not to recognize out-of-state same-sex marriages if their own state law does not permit it — will remain untouched, the bill targets the portion of DOMA that restricts marriage in federal law exclusively to heterosexual couples.
If the bill passes, the federal government will recognize legally performed same-sex marriages for the purposes of federal benefits, including:
- Joint income tax filing
- Unpaid leave to care for a sick or injured spouse
- Spousal, mother's and father's, and surviving spouse benefits under Social Security
- Receive equal family health and pension benefits as federal civilian employees
The Human Rights Campaign also reports that the Respect for Marriage Act will bestow inheritance rights, Social Security benefits, insurance benefits, and hospital visitation rights, privileges 7 in 10 Americans believe that same-sex couples should have according to a December 2008 Newsweek/Princeton Research survey.
For anecdotes illustrating why the bill is so important to same-sex couples, as well as a list of the more than 90 co-sponsors of the bill in the House, visit HRC's Back Story.
Have a question, comment, or response? Share your thoughts.The American Bar Association and DOMA
The American Bar Association (ABA), a professional association of attorneys, passed earlier this month a resolution calling for the repeal of Section 3 of the Defense of Marriage Act (DOMA), the section preventing same-sex couples who are married under state law from receiving federal benefits. The measure takes no position supporting or opposing marriage rights for same-sex couples, but seeks to "ensure that state decisions on whether to recognize such marriages are given deference under federal laws and programs".
Though the ABA is made of legal professionals, it has no ability to make, interpret, or enforce laws. In other words, its position is not binding on any state or federal courts, and does not necessarily reflect the modern flow of law. Professional organizations take stands on a number of social and political issues, but they do very little to actually change the minds of our opponents. For instance, though the Diagnostic and Statistical Manual of Mental Disorders (DSM) stopped classifying homosexuality as a mental disorder in 1973, many anti-gay organizations still cling to the belief that gay and lesbian individuals suffer from mental illness. Similarly, though the American Psychological Association has supported adoption by same-sex parents since 2004, these same organizations remain convinced that gay parents are somehow harmful to children. Commentary from experts in anthropology, psychology, law, and other disciplines does little to sway the opinions of those in anti-gay groups who would rather believe outdated propaganda than review the latest research.
However, the ABA, in deciding to take no position on marriage itself and instead focus on the issue of federalism (whether DOMA is an unacceptable usurpation of states' rights), has shaped the argument in such a way that even the anti-gay groups could not possibly disagree. Their reasoning is as follows:
Throughout our history, the federal government has looked to state and tribal law to determine who is married for purposes of these provisions. But in 1996, Congress abandoned this tradition of deference to the states by enacting the Defense of Marriage Act, Section 3 of which denies same-sex couples married in accordance with state law the legal protections, rights, and responsibilities accorded to other married persons under federal law.
The enactment of this provision was an unprecedented encroachment on state prerogatives in the field of marital and family law, overriding state determinations and profoundly altering the traditional distribution of authority between the federal government and the states in the field of family law. It has deprived thousands of lawfully married same-sex spouses of the range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty.
Stated more simply, since the founding of the country, it has been up to each of the state governments to determine the rules of marriage, which the federal government would then respect. DOMA Section 3 was the first and only departure from this principle, and allowed the federal government to ignore the states' rules and enforce its own. This, according to the ABA, is impermissible.
It remains to be seen what the implications of ABA's stance on DOMA will be, and what, if any, effect it will have on GLAD's lawsuit challenging DOMA. However, the ABA at the very least has shown that gay rights matter not just to same-sex couples, but also to anyone who supports the state's right to sovereignty and freedom from unwarranted federal intrusion.
Have a question, comment, or response? Share your thoughts.This Week in Gay News Roundup: 5/24 - 5/30
The week that brought us disappointment over Proposition 8's approval by California courts and hope with a federal challenge featured many other strides in our fight for equality. Here is what happened this week in case you missed anything. For more up-to-the-minute news stories, follow Family Fairness on Twitter.
- President Obama made his first Supreme Court nomination to fill David Souter's vacant seat. His pick, current Second Circuit judge Sonia Sotomayor, would be the Court's third woman, third non-white, and first hispanic justice. Though her time in the New York District Court and Second Circuit have not revealed her stance on gay issues, legal activists are happy with her nomination. Paula Ettelbrick, executive director of the International Gay and Lesbian Human Rights Commissions, said of a meeting with Sotomayor in 1991, "she was totally interested [in gay civil rights issues] and supportive." Evan Wolfson, head of Freedom to Marry, said, "from everything I know, Judge Sotomayor is an outstanding choice — fair and aware, open and judicious. I believe she has the demonstrated commitment to principles of equal protection and inclusion that defines a good nominee to the Supreme Court." The National LGBT Bar Association and Lambda Legal have also made statements supporting Sotomayor.
- A Brown University poll revealed that 60% of Rhode Island voters support the right of same-sex couples to marry, and 75% support Civil Unions. Of the six New England states, four have legalized marriage equality with a fifth — New Hampshire — in the process. While Rhode Island legislatures have attempted to pass marriage bills every year since 1997, none have made it to the floor for a full House or Senate vote. Equality advocates are hopeful that such a strong showing of support will encourage lawmakers to more seriously consider a bill.
- Speaking of New Hampshire, House and Senate negotiators have reached a compromise on the state's marriage bill and will be holding votes on the amendments next week. Governor Lynch, who threatened to veto the last version of the bill unless the changes were made, has indicated his support of the new bill. The legislation added a sentence specifying that religious organizations have exclusive control over their practices with regards to marriage.
- Two bills, one of which would legalize same-sex marriage while the other would ban it, are circulating for co-sponsors in Pennsylvania. While the outcome of either bill is uncertain, Senator Leach, who intends to introduce the marriage equality legislation, believes that the climate is right for Pennsylvania to follow in the footsteps of other legislatures the recognized the fundamental inequality of marriage exclusion.
- The White House released a statement reaffirming President Obama's support for efforts repealing the Defense of Marriage Act (DOMA). The statement says "DOMA is a federal law passed by Congress that precludes uniform federal recognition of same-sex relationships, even those recognized as valid under the law of the state. Because the President believes that this is an issue that should be left to the states, he continues to support the legislative repeal of DOMA." While the statement is comforting given Obama's relative silence on issues important to the gay community, it offered no timeline as to when these efforts would begin.
- The domestic partnership bill in Nevada that won support from the state's House and Senate was vetoed by Governor Jim Gibbons as he promised to do. A statement released by the governor explains that he believes the 2002 constitutional amendment banning same-sex marriage also extends to domestic partnerships, and that "only the voters should have the right to undo or amend constitutional mandates." He also stated that other private contracts, like a Power of Attorney document or a health care proxy, were already sufficient to give same-sex couples legal rights and that domestic partnerships were unnecessary.
Did I miss anything? Be sure to let me know in the comments. You may also follow Family Fairness on Twitter for more up-to-the-minute news stories.
Have a question, comment, or response? Share your thoughts.