Taxing Civil Rights Gains

Anthony C. Infanti, University of Pittsburgh School of Law

Abstract

In this article, I take a novel approach to the question of what constitutes a “tax.” I argue that the unique burdens imposed on same-sex couples by the federal and state “defense of marriage” acts (the DOMAs) constitute a tax on lesbian and gay families.

Classifying the DOMAs as a “tax” has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution’s direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or unavailing, classifying the DOMAs as a tax provides grounds for arguing that this tax on lesbian and gay families should be taken into account when assessing the justness of the distribution of the overall tax burden. On a rhetorical level, labeling the DOMAs a tax on lesbian and gay families effectively counters the notion—implicit in their current moniker—that the DOMAs are a necessary “defense” of marriage against an assault by same-sex couples. Instead, calling the DOMAs a tax may prove to be an effective means for shifting the rhetorical terrain in the debate over same-sex marriage by making it clear that the DOMAs do nothing more than punish lesbian and gay families because they are different.