Charles Merrill, cousin of the founder of Merrill Lynch, has filed a challenge in the US Tax Court against the Defense of Marriage Act (DOMA). Merrill is arguing that the Tax Code is discriminatory under the First Amendment Establishment Clause of the US Constitution since same sex couples are denied the same benefits as straight married couples.
Merrill knows a little something about both. Merrill was previously married to the late Evangeline Johnson, the Johnson & Johnson heiress; they were married from 1975 until her death in 1989. Now, Merrill is legally married to Kevin Boyle in the state of California; that marriage is not recognized by the federal government.
Merrill has said:
Marriage is a Federal issue for all citizens, not a state or religious one.
Merrill’s argument is basically two-fold:
1, that the federal definition of marriage is discriminatory and based on religion; and
2, federal tax benefits for married persons should not be limited to married couples as defined by DOMA.
His first argument has merit in that proponents of DOMA argue that “Marriage is only a union between one man and one woman under God.” In fact, the majority of those who support DOMA do so on religious grounds. DOMA, and similar proposals like California’s Proposition 8, have the backing of such religious organizations as the Catholic Church, LDS and Southern Baptists.
Merrill counts 1,138 federal benefits for married heterosexual couples but not allowed for homosexual couples. He claims that this violates the idea of a Constitutional guarantee of “Equality of All.”
It’s a gutsy argument. And one that someone as well-positioned financially as Merrill appears to be can afford to make. Any thoughts on what will happen?
(Hat Tip: Tax Prof Blog)
Right on, Charles Merrill. Hope that argument prevails.
Honest truth, no idea what will happen. But I sure *hope* he wins.
Have you read proposition 8? It is a strange construct for an English sentence.
You have to be very careful when writing constitutional language. If they are defining Marriage in one sentence, then they haven’t excluded incest, for example.
Will Judges be compelled, to legalize incest. (as http://RavagedFaces.com/ suggests) based on that wording? I’d be very afraid to vote YES on this one.
Well, I think he is right! I am not really a fan of same sex marriage but….this is America! Land of the free…. The basic idea is that our Government will not push it’s religious ideas on the people….everyone should remember this is how this country got started. While I do not savor the idea of totally removing religion from our lives I believe it is the personal responsibility of each and every person to uphold their own beliefs they way choose, not how our elected officials choose. IF we want to keep our faith it needs to begin at home not in Washington!
I don’t know if he will win right now. But eventually I believe that all states and the federal government will legalize same sex marriage. Change does take some time but homosexuality is becoming more and more mainstream and more and more accepted. The younger generation is over all quite supportive of gay marriage, much more so than their parents and grandparents. We may have to wait for them to grow up or their children to grow up but it will happen.
I don’t understand why anyone objects to gay marriage. I can’t understand how anyone can possibly care. It doesn’t threaten or harm anyone if gay marriage is legal but it does harm people for it to be illegal. Children from gay relationships can be especially vulnerable when the partners divorce and one of the parents is not the child’s biological parent. It has been difficult for the non-biological parent to get custody or visitation or for the biological parent to get child support. People just don’t seem to care that children are being harmed by DOMA and similar laws as are their parents.
It also seems that a family unit with two same sex parents will still have to pay more in taxes in many circumstances leaving less money available for the children’s benefit.
Bring back the “marriage penalty”.
So, given my legal heterosexual marriage at the beginning of the year, and my sex change in April, does that mean I can save some money on taxes by filing single on my ’08 returns? Boo, tax penalty!
Contrary to popular opinion Gay Marriage is not a legal right, it was created by activist judges who overturned a legal decision by the people of California (Prop 22). The new proposition 8 simply puts the same language used for Prop 22 into the state constitution to make it undebatable as a legal framework for marriage. It’s not going to take away rights from Gays that they had for anymore than a few months. Mr. Merrill is jumping the gun on his lawsuit, and he’d better hope that Prop. 8 doesn’t pass or his so-called “marriage” will be illegal.
GOD ONLY KNOWS
Why arn’t they arguing that the tax code itself is unfair. Treating people differently based on where the income comes from is also unequal. The entire income tax code is a mess of special interest goo. The point of taxation is to raise revenue to pay the debts, not build a perfect social order. The US Constitution does not grant authority to the government to reorder society through taxation. Tax on income is inherently unfair.
“…Duties, Imposts and Excises shall be uniform throughout the United States;”
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. ”
These two do not reconcile do they?
Steve, The judges here in CA aren’t activists – they were appointed by Republicans. Besides, you forget that there are 3 branches of government, one of which includes the judicial branch, which interpret the state’s constitution, which is the ultimate expression of the people’s will. Prop 22 was a statute, in which the state’s constitution had supremacy. That’s why Prop 8 is a constitutional amendment. People tend to forget that the majority rules isn’t always the case, especially when it oppresses the minority, which the case that overturned the Prop 22 stated that sexual orientation is an implied minority class. And please understand that it does take away rights. Domestic partnerships do not equate marriage. DP requires the couple to live together whereas marriage doesn’t. DP doesn’t guarantee hospital visitation. In 1948 the supreme court overturned the interracial marriage ban as being unconstitutional under the Equal Protection Clause. Separate but equal doesn’t equate to equal, which the court understands and for which the court exists – to interpret the state’s constitution.
Steve –
Lesson 1 – You are correct that California prop 22 was passed by the voters. Fortunately, we live in a country where majority rule is limited by the Constitution of the United States.
Remember – our society is premised on the idea that ALL people are created equal and furthermore the Bill of Rights 1st amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”
In short, we don’t live in a majority rule society. We live in a society which provides minority groups (in numerical numbers) the opportunity to exrecise their beliefs without that majority infringing on basic equality rights or having to be subjected to laws which are fundamentally grounded in religious “virtue”.
The so called “activist judges” merely reinforce the notion that a majority can’t take away the rights of the minority. The irony in this case is that the majority heterosexual community seeks to deny the minority (gays, lesbians, bisexual,transsexuals, the “GLBT”) something that is legal to the majority. The majority simply wants to withhold the right to marry from the GLBT community. The majority diminishes the GLBT community to second class citizens because they are GLBT and for no other valid reason.
Lesson 2 – If California prop 8 passes then gay or lesbian marriages pre-dating prop 8’s effective date would not become illegal – they would become invalid unless of course they are grandfathered.
Lesson 3 – Even if Prop 8 passes it will not function as expected – the California constitution in part provides all rights provided to U.S. residents under the U.S. Constitution. As a result, the inconsistency will undermine prop 8’s effectiveness because of the full faith and credit clause of the U.S. Constitution.
Lesson 4 – Full faith and credit clause – GO TO LAW SCHOOL
In point of fact I can write about this Gay Lesbian marriage issue for days and the fact is that the GLBT is entitled to a marriage union just like everyone else. This doesn’t change the fact that a church could still deny a couple the right to marry because of religious objections. It only establishes that as far as getting a marriage license – the GLBT community can do what heteros do all the time.
If, as most prop 8 voters claim, “marriage” is undermined as a result of allowing GLBT’s to marry – then they should worry more about the excessive divorce rate among heteros. More than 50% of all marriages end in divorce!
As Winston Churchill stated – “you can count on Americans to do the right thing once all other options have been exhausted”.
Mostly I want to comment to see what little critter shows up for me 🙂
Go Merrill. Maybe he has pockets deep enough to at least make a public point, if not win the case.
I believe this whole mess about marriage started because the state got involved in matters of religion, by licensing and defining “marriage”, a religious and/or cultural ceremony or rite of passag, in the first place, and then granting financial and legal rights and privileges to people based on whether they held this particular license. I imagine the original intention of the State in codifying marriage was noble – protect the wife and children of these unions when the main provider died or ran off, back in the day when women couldn’t vote, didn’t work, and had no viable means of support.
It’s really not until *really* recently that people married for purely romantic reasons. Marriage has been used to shore up political power, solidify wealth and power, etc. Historically, marriage was about politics and mistresses were about love. In many cultures even today, marriages are still arranged by the family, to ensure social and financial stability for the family. I have an Indian friend who is very sympathetic to me and my partner because he and his wife got married without being arranged by the family.
As near as I can tell anymore, in modern American society, The main purpose for denying me the right to marry the person I’ve been with for the last nine years (which is longer than most legal marriages last) is to take *my* money in taxes, and dole it out to the majority. When I worked for a company that offered partner benfits, I had to PAY extra money in taxes (plus the premium) because I support another human being, because insurance benefits I get for my partner are considered a taxable benefit. When I die, my partner will pay more in taxes on that inheritance than someone I was married to. And that assumes brothers and sisters and nieces and nephews and other “blood” relatives don’t hire estate lawyers to steal *our* stuff from him, which is often successful in the cases of domestic partnerships. Especially where I live. I’m not particularly worried they’ll do that, but the point is, they could, and without a pile of expensive legal paperwork on our part, they would probably win. All an opposite sex couple has to do is pay $25 to a J.P. and fill out some forms to protect themselves against that possibility.
And as far as I can tell, the only reason to exclude me from visiting my partner in the hospital is simply to be mean to us because ya just hate homos.
And by the way, No-one today forces Christian churches to marry Jews or Muslims or Buddhists or anyone else they don’t feel like marrying for whatever capricious reason they can come up with. No-one I”m aware of is suggesting that change. That’s a totally specious argument on the part of religious leaders to rile up their congregations.
WIN OR LOSE…. MERRILL WILL MAKE HIS POINT!
Kelly,
Please don’t change this blog. First it was a presidential endorsement for non-tax reasons. Now it is discussing Prop 8 on a freedom of/from religion. TaxGirl, an excellent tax blog, is now morphing into yet another political/social blog. I encourage you to stay with taxes. But that is your choice, of course.
Frank
Frank – the challenge was mounted not solely on religious grounds but for tax reasons. It was, as I reported, filed in Tax Court as a constitutional challenge based on the Tax Code. That makes it a tax issue.
I respect that many folks don’t like to talk politics. But the Tax Code and politics are intrinsically related. And this issue is being fought on tax grounds…
I personally subscribe to over 20 tax blogs and I can assure you this case is being discussed on most of them. It’s blog worthy and it’s about tax, so I feel it’s appropriate to include it.
Kelly,
As always, you have a great response, and I mean that sincerely. Upon reexamining my comment, I stand corrected. You presented the issue with a good recap of the basic issues and a summary of the arguments. I see that my problem is not with the issue you present, but the responses it generates. They appear to be more a product of emotion, rather that a technical treament of the issue.
Obviously the problem is me. You are hosting a blog, not a technical forum. My expectations are wrong. These days there just seems to be so much shouting of poorly constructed opinions and so little thoughtful discourse. I was quick to rush to judgement and guilty of what I complain about. I definitely need to go into internet detox. My virtual side needs to be controlled and and my human side given some fresh air. Good luck. I will be back in a month.
Frank
No problem, I hope to see you back soon!
I’m a straight man and I say DOMA denies equal rights. Anybody care to take me on to see what I fight with? Do you even know who I am? I protect the feminine divine birth rite. Haven’t figured out that the pathway includes the right of a woman to pass a child with the same separate but equal and divine rights she enjoyed at conception without her marriage right being edited mid-gestation by Proposition 8? You will know the size of my boom when you suddenly realize you’ve been the victim of a double cross you failed to see, and “blame it on the gays” no longer works for you around the straight adults.