The Not-So-Merry Wives of Windsor: The Taxation of Women in Same-Sex Marriages

Lily Kahng
2015 Social Science Research Network  
In United States v. Windsor, the Supreme Court invalidated the Defense of Marriage Act definition of marriage as "between one man and one woman," heralding its subsequent recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage. Windsor cleared the way for same-sex couples to be treated as married under federal tax laws, and the Obama administration promptly announced that it would recognize same-sex marriages for tax purposes. Academics, policymakers, and activists
more » ... ers, and activists lauded these developments as ftnally achieving tax equality between same-and different-sex married couples. This Article argues that the claimed tax equality of Windsor is illusory and that the only way to achieve actual equality is to eliminate taxation on the basis of marital status. Focusing on the taxation of women in same-sex marriages, the Article explores what lies beneath the putative equality gains that result from according same-sex married couples the same status as different-sex married couples. The Article predicts, based on demographic statistics and other sociological and economic research relating to income levels, wealth holdings, child rearing, and employment patterns, that women in same-sex marriages will be less likely than other married people to reap the benefits, and more likely to suffer the detriments, of marriage taxation. In analyzing why women in same-sex marriages are likely to suffer adverse consequences from their new tax status as married, the Article builds on prior critical and feminist tax literature showing how the tax law-though purportedly neutral in its treatment of t Professor of Law, Seattle University Law School. I am grateful to
doi:10.2139/ssrn.2481990 fatcat:3z72fnkntjbw7kafieutrpi2hi