Marriage and the Tax Code

How can the U.S. tax code point to family stability? My colleague and friend, Professor Eleanor Weston Brown here at Regent Law recently forwarded to me a link from the The TaxProf Blog where there has recently been posted an abstract of an article by Professor Stephen T. Black (Franklin Pierce) entitled Same-Sex Marriage and Taxes, 22 BYU J. Pub. L. 327 (2008). You can read the post at:


Professor Black states very clearly, in unequivocal and inoffensive terms, the realities of societal perpetuation. From the TaxProf Blog, here is a summary of the article’s conclusion:

Tax law prefers traditional married couples with children. The range of benefits runs from cradle to grave, including child tax credits, adoption credits, dependent care credits, education credits, and spousal transfer deductions. Some benefits that are specifically designed to help the child are available equally to single parents or same-sex couples. However, the full range of tax benefits—including tax-free spousal transfers—is available only to opposite-sex married couples.

The tax law encourages individuals to marry and have children, not because it is an essential component of the tax, but because it is an essential part of society. Other types of couples or individuals may choose to have children, and some may choose to raise children born to others. Some opposite-sex married couples may not choose to have children at all, and some may be lousy parents. However, the tax law does not involve itself in interviewing prospective parents regarding their plans to have children or their child-rearing skills. Instead, the tax law implements society‘s desire to provide an incentive for that institution which seems best suited to perpetuate society—the traditional family.

Within the traditional family, the combination of the potential for a stable relationship, the ability to procreate, and the environment to rear children has resulted in a package of tax benefits. Even though individual benefits may be claimed by others due to imitation of some of the roles filled by the traditional family, only the traditional family justifies this tax accommodation.

A same-sex couple may not have a child without involving a third party, which is not the same for an opposite-sex couple. The same-sex couple also lacks a parent of one gender. An unmarried opposite-sex couple is also different from a married couple, for while they may have children without the involvement of a third party, there is a risk that one party may leave the relationship without notice. Risks do exist in every parenting relationship, but the tax law does not require mathematical precision to extend benefits. In guessing which types of couples will most likely produce the desired continuation of society, Congress need only act rationally.

Courts and legislatures looking at other areas of the law have concluded that disallowing same-sex couples to be married is discriminatory. However, changing the definition of marriage is a sweeping change and implicates a host of issues, not the least of which involves federal tax benefits. Despite what may happen in other areas of the law, the justification to change the tax law is not present. Same-sex couples may qualify for some child benefits that are available to single parents, but the full range of incentives are not now, nor are they likely to be in the future, available to same-sex couples.

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