Tuesday, November 16, 2004

Will gay marriage come to the US through tax treaties?

The IRS has said it won't recognize gay marriage even if it is made legal under state laws because the Defense of Marriage Act as enacted by Congress defines marriage as being between a man and a woman, and governs for all federal purposes.

But over at Tax Analysts (in the subscription section) Prof. Anthony C. Infanti of the University of Pittsburgh School of Law notes that the US has tax treaties with Canada, the Netherlands, Belgium, and Spain, nations that recognize same-sex marriage (or are expected to soon, in the case of Spain) -- and each of these treaties contains a "nondiscrimination article" that prohibits the United States from taxing citizens of the other country in a manner other or more burdensome than it taxes its own citizens in the same circumstances. And this, apparently, requires the IRS to recognize same-sex marriages among the citizens of these countries for tax purposes.

The Constitution gives treaties the force of law, and they'd normally be expected to trump conflicting legislation like the DOMA.

So it could be that the IRS will soon be recognizing gay marriages among foreigners, but not among US citizens. Which will make for some interesting politics should a few cases of that get reported in the press.