The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. The article then considers other justifications for applying DOMA to federal tax law and concludes that none of them meet minimal levels of rationality to support retaining the DOMA ban in the year 2009. Because the justifications fail, DOMA, as applied to federal tax law, is unconstitutional.
Patricia A. Cain,
DOMA and the Internal Revenue Code,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss2/5