Yesterday, Chief U.S. District Judge Vaughn Walker in San Francisco ruled that California’s Proposition 8 violates the US Constitution. While there were a lot of cheers and boos after the ruling, you and I both know this means practically nothing. No matter which side Walker came down on, an appeal was a sure thing.

I haven’t yet read the opinion but I will (it’s 136 pages long – you can read it here) but I do know the final answer. The big question it addressed was whether California’s ban on same-sex marriage violates same-sex couples’ rights to equal protection and due process under the US Constitution. Judge Walker says yes.

Same-sex couples currently have the right to be legally married in five states (Massachusetts, Connecticut, Vermont, Iowa, New Hampshire) and in DC. Civil unions are allowed in my neighboring state of New Jersey. While couples in those states may share some benefits of being married with their partners, they are not afforded certain benefits tied to federal law. Chief among them: deductions and exemptions allowed under the Tax Code.

My feeling on this has always been that the most significant challenge to the ban on same-sex marriage would come in Tax Court. Even if Judge Walker’s ruling went untouched (trust me, it won’t), the Defense of Marriage Act (DOMA) significantly limits the rights of same-sex couples on the federal level. It matters the most in the realm of taxation. I still think that’s where any substantial ruling about the rights of same-sex couples will be manifested: not in a statewide vote, not in parades and demonstrations but rather in the mere tick of a box on a tax return.

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Kelly Erb is a tax attorney and tax writer.


  1. I agree. I think that this will really be fought in tax courts but it will also be fought in the healthcare field when same-sex couples will be expecting to get equal rights to make decisions for their partners in cases of emergencies, etc. It is a big issue in so many ways. It may change the way the U.S. views everything from marriage to paternity leave. I say, bring on the changes! It’s about time that we step out of our archaic ways and embrace all the freedoms that everyone should get to share. 🙂

  2. Good point. Still don’t like one judge undoing what was voted by the majority.

  3. This news (that Proposition 8 was overturned) is fairly inconsequential to tax law and tax preparation for the time being. I had been wondering why you hadn’t mentioned yet the CCA issued by the IRS May 28, 2010 which is HUGE tax news for those of us in California and is a reversal of prior IRS policy. Per the CCA, California Registered Domestic Partners (RDPs) and Same-Sex Married Couples (SSMCs) will (as of 2010 tax returns) be filing their federal tax returns based on community property tax law. They will not file federal joint returns (although they already file California joint returns) but all earnings (i.e. wages and self-employment income), as well as everything else that has not been designated separate property, will be split 50/50 between the two returns. In addition, RDPs and SSMCs may (but are not required to) amend all open year returns to refile using community property tax law. For partners/spouses with disparate incomes, the result can be several thousand dollars in refunds. For those whose incomes are similar, the result could be that more tax is owed. For tax professionals, we know that we will be dealing with a massive amount of communication from the IRS when filing these returns since they have no process in place to match the 50% of income/expenses with reporting forms such as 1099s and W-2s.

    Jan Zobel EA
    Oakland, CA

  4. I never really thought about a battle over same-sex marriage being fought in tax court, but it makes perfect sense.

    If Judge Walker’s ruling sticks (and that’s a big “if”), as I hope it does, I hope a serious challenge to DOMA would come next. After that, we’ll be one of the small (but growing) number of countries that has shown itself to be truly committed to equal rights for gays and lesbians.

  5. The rights of a minority have never been “given” to them by a popular vote of the majority; they have always come via lawsuits and judges or legislatures. Recently, several same-sex married couples in Massachusetts (where same-sex marriage is legal) won a major case against the feds/DOMA by insisting that the federal government was discriminating against legally married Massachusetts couples. That case is also waiting for appeals so it’s clear that DOMA is being attacked from many sides.
    Jan Zobel EA
    Oakland, CA

  6. Shannon, there is a reason we are not a straight up democracy is. Our founding fathers knew that sometimes the majority does not make the decision that benefits society and best upholds the rights of the citizens. Whether or not one agrees with the decision, we benefit from this system daily and can find comfort in the fact that, for example, our right to vote couldn’t be overturned by 50% of the people deciding it’s a bad thing.

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