March 27, 2013
A Legally Wonkish Example of The Injustice Caused By DOMA

Originally Published in October, 2011

[It is a well-worn criticism of DOMA that it alienates same-sex couples from thousands of rights and privileges granted to heterosexual couples on account of marriage status.  Most people probably aren’t familiar with the actual legal nuts & bolts of how this can occur.  Here is one example. —  LTMC]

Title 26 of the United States Code holds all of our nation’s tax provisions.  §119 and §132 govern the exclusion of Meals, Lodging, and Fringe Benefits from gross income for tax purposes.  §132 provides a list of fringe benefits which are excludable from gross income, in part or in whole, under qualifying circumstances.

One of these Fringe Benefits are “No Additional Cost” (NAC) benefits.  NAC benefits are services provided for free to employees which are comprised of the employer’s unused “excess capacity.”  Examples of excess capacity include vacant hotel rooms and unoccupied airline seats.  Employers often offer these unused services to their employees free of charge, since they aren’t being used anyway, and it costs the employer nothing to allow their employees access to unused portions of their excess service capacity.  These resources can be provided tax-free as a fringe benefit to employees, so long as they are not received in lieu of a profitable customer (the Tax Court refers to this as “forgone revenue”).  

§119 was amended in 1978 to include Meals and Lodging provided to Spouses and Dependents of an employee.  §132(h)(2)(A) includes similar language with respect to fringe benefits received by the employee, their spouse, or dependent children.  Keep in mind that the language of § 132(h)(2)(A) merely changes the definition of “employee” in § 132(a) to include spouses and dependent children.  It does not actually change the wording of the paragraph which grants the exclusion itself.  This is important for reasons that will become clear in a moment.

To explain how this might work, imagine you work for an airline.  The airline allows employees and their immediate family members to fly for free on any flight with vacant seating.  under § 119 and § 132(h)(2)(A), the definition of employee, for purposes of taxable income, includes your spouse and your dependent children.  So your husband/wife and kids can fly without tax liability for what otherwise might be considered salary-in-kind, and those benefits will not be viewed as taxable income by the federal government.

Not so with same-sex couples.  Since DOMA explicitly forbids the federal government from recognizing same-sex couples as married for any purpose,  the amended language of § 119 and § 132(h)(2)(A) does not apply to same-sex couples for purposes of tax liability.  Even those who have been legally married in one of the six states which issue marriage licenses to same-sex couples will not be considered legally married by the federal government, and hence, not by the IRS.

To illustrate the effect of this provision, consider the following 2 families:

1. Bob and Joanne are married in New York.  Bob has 10-19 years of experience as an airline pilot, and makes $100,000/year as a pilot for the airline.  Joanne decides to stay at home and raise their 2 children.  They file a joint tax return.  Bob’s employer allows pilots and their immediate family members to fly in unreserved seats for free.  Joanne has family in Hawaii whom she likes to visit once a year.  Joanne takes this trip in October with their 2 children on unreserved seats.  The fair market value of a round trip ticket to Hawaii from New York is roughly $900 per person.  If Bob and Joanne had to include the value of these seats in their gross income, Bob, who is in the 28% tax bracket, would be treated as having 102,700 in income instead of 100,000.  Thus, Bob and Joanne’s tax liability on that additional $2,700 would be $756 when they file their joint return.  Thankfully, § 132(h)(2)(A) allows them to exclude the value of these round-trip tickets from their gross income.  Bob and Joanne are thus shielded from have to pay $756 additional dollars in taxes because of § 132(h)(2)(A).

2. Bob and Joseph are married in New York.  Bob has 10-19 years of experience as an airline pilot, and makes $100,000/year as a pilot for the airline.  Joseph decides to stay at home and raise their 2 adopted  children.  Bob and Joseph file a joint tax return in New York, but Bob must file with the federal government as “single/head of household” because of DOMA.  Bob’s employer allows pilots and their immediate family members to fly in unreserved seats for free.  Joseph has family in Hawaii whom he likes to visit once a year.  Joseph takes this trip in October with their 2 adopted children on unreserved seats.  The fair market value of a round trip ticket to Hawaii from New York is roughly $900 per person.  Because Bob makes $100,000/year, he is in the 28% tax bracket.  If Bob and Joseph include the value of these unreserved airline tickets as income, they will have to pay taxes on $102,700 in income instead of $100,000.  § 132(h)(2)(A) would normally allow Bob to exclude the value of these round-trip tickets to his spouse and 2 children from his gross income. But since DOMA does not allow the federal government to recognize Bob and Joseph’s marriage, §132(h)(2)(A) does not apply to Joseph.   Bob and Joseph therefore may only exclude the value of their children’s tickets from gross income.  As a result, they must pay an additional $252 dollars to the IRS come tax time (i.e 28% of the value of Joseph’s ticket), which they otherwise would not have to if the federal government recognized their marriage for purposes of § 132(h)(2)(A).

Two couples in identical circumstances.  But one couple pays $252 dollars more in taxes every year because they are a gay couple.  And only because they are a gay couple.

This example demonstrates two things: A) civil unions are inadequate for the purpose of achieving legal equality for same-sex couples, since civil unions are not mentioned in most of the federal tax code.  It refers to spouses and married couples, not “partners.”  B) DOMA is both a social and financial burden on gay couples.  This is not just social inequity.  It’s not just discrimination in the metaphysical, emotional sense.  Legal discrimination of same-sex couples on account of DOMA has real economic consequences for gay couples.  And the above story is yet one more example.

March 11, 2013
American soldier Jessica Hanna posing with her family.  Photo via American Military Partner Association.
"You don’t have to be straight to fight and die for your country.  You just have to shoot straight."  — Barry Goldwater

American soldier Jessica Hanna posing with her family.  Photo via American Military Partner Association.

"You don’t have to be straight to fight and die for your country.  You just have to shoot straight."Barry Goldwater

April 25, 2012
Reminder: DOMA Is Still Here And Still F#$%ing People Over

A Sullivan reader shares their experience:

I am an American and worked in Telecommunication Wireless for 17 years. I met an Israeli 11 years ago in Florida where I was living. Six months later I moved to NYC to be with him. He advised me of his immigration problem and I began doing research, met with Immigration Equality in Manhattan, met with one of the best immigration attorneys. I quickly realized there was nothing that could be done except to live in fear - quietly under the radar, which we have done for over a decade, always afraid that a traffic stop could end my wonderful life with my partner.

I am happy that you, being more educated, were able to finally solve this and obtain a green card. Here is the sad story for my partner and I: we are both uneducated.

No college degree, so we were even more discriminated on than you and your partner. I still live in fear and hiding. Everything is in my name. He is unable to travel to Israel to see his brother’s four children. I have flown to Israel twice to see his family there without him. You know the pain and fear we live in and [we] still have no hope until DOMA is gone or PPIA is passed.

Good people are still being hurt by this indecent, inhumane, bigoted law.  Don’t forget these peoples’ stories.  Obama’s decision to cease enforcement is admirable, but hardly conclusive.  Everyday that DOMA continues to exist, folks like the couple above must still live cloaked in a shroud of perpetual fear and doubt that, at any moment, their lives will be destroyed by the government.  And for what?  Who’s marriage will be “saved” by this?  Will a troubled married couple suddenly decide not to divorce if this reader’s spouse gets deported?  The logic of this law beggars reason.  And yet it continues.  And our fellow citizens suffer.

Update: Youthisastateofmind notes that “the first challenge to Sec. 3 of DOMA to hit the Circuit Courts was Gill v. OPM, argued 4/4/12, awaiting a decision. PDF of all the cases.”  Link to docs: glad.org/uploads…

October 26, 2011
Senate Committee Set To Approve Vote On DOMA Repeal Bill

Which would never get past the house.  Still.  This is a big deal.

October 12, 2011
More Examples Of The Absurd Injustice Of DOMA

I’ve stated many times in the past (in so many words) that DOMA is perhaps some of the most discriminatory legislation ever in existence.  It is admittedly not Jim Crow.  But the nature of the discrimination perpetuated by DOMA is not unlike anti-miscegenation laws, which were part and parcel of the Jim Crow regime.  I therefore am comfortable referring to it in superlative terms.

There are literally thousands of ways that gay couples are burdened by DOMA.  These inequities are often subtle and technical, and don’t fit on a protest sign: so they don’t get a lot of attention.  But it seems that not a week goes by in which I discover yet another example of how this absurd, blatantly unconstitutional federal law makes the lives of gay couples more difficult than straight couples.  Effectively making gay Americans second-class citizens.

Here is another example.

Title 26 of the United States Code holds all of our nation’s tax provisions.  §119 and §132 govern the exclusion of Meals, Lodging, and Fringe Benefits from gross income for tax purposes.  §132 provides a list of fringe benefits which are excludable from gross income, in part or in whole, under qualifying circumstances.

One of these Fringe Benefits are “No Additional Cost” (NAC) benefits.  NAC benefits are services provided for free to employees which are comprised of the employer’s unused “excess capacity.”  Examples of excess capacity include vacant hotel rooms and unoccupied airline seats.  Employers often offer these unused services to their employees free of charge, since they aren’t being used anyway, and it costs the employer nothing to allow their employees access to unused portions of their excess service capacity.  These resources can be provided tax-free as a fringe benefit to employees, so long as they are not received in lieu of a profitable customer (the Tax Court refers to this as “forgone revenue”).  

§119 was amended in 1978 to include Meals and Lodging provided to Spouses and Dependents of an employee.  §132(h)(2)(A) includes similar language with respect to fringe benefits received by the employee, their spouse, or dependent children.  Keep in mind that the language of § 132(h)(2)(A) merely changes the definition of “employee” in § 132(a) to include spouses and dependent children.  It does not actually change the wording of the paragraph which grants the exclusion itself.  This is important for reasons that will become clear in a moment.

To explain how this might work, imagine you work for an airline.  The airline allows employees and their immediate family members to fly for free on any flight with vacant seating.  under § 119 and § 132(h)(2)(A), the definition of employee, for purposes of taxable income, includes your spouse and your dependent children.  So your husband/wife and kids can fly without tax liability for what otherwise might be considered salary-in-kind, and those benefits will not be viewed as taxable income by the federal government.

Not so with same-sex couples.  Since DOMA explicitly forbids the federal government from recognizing same-sex couples as married for any purpose,  the amended language of § 119 and § 132(h)(2)(A) does not apply to same-sex couples for purposes of tax liability.  Even those who have been legally married in one of the six states which issue marriage licenses to same-sex couples will not be considered legally married by the federal government, and hence, not by the IRS.

To illustrate the effect of this provision, consider the following 2 families:

1. Bob and Joanne are married in New York.  Bob has 10-19 years of experience as an airline pilot, and makes $100,000/year as a pilot for the airline.  Joanne decides to stay at home and raise their 2 children.  They file a joint tax return.  Bob’s employer allows pilots and their immediate family members to fly in unreserved seats for free.  Joanne has family in Hawaii whom she likes to visit once a year.  Joanne takes this trip in October with their 2 children on unreserved seats.  The fair market value of a round trip ticket to Hawaii from New York is roughly $900 per person.  If Bob and Joanne had to include the value of these seats in their gross income, Bob, who is in the 28% tax bracket, would be treated as having 102,700 in income instead of 100,000.  Thus, Bob and Joanne’s tax liability on that additional $2,700 would be $756 when they file their joint return.  Thankfully, § 132(h)(2)(A) allows them to exclude the value of these round-trip tickets from their gross income.  Bob and Joanne are thus shielded from have to pay $756 additional dollars in taxes because of § 132(h)(2)(A).

2. Bob and Joseph are married in New York.  Bob has 10-19 years of experience as an airline pilot, and makes $100,000/year as a pilot for the airline.  Joseph decides to stay at home and raise their 2 adopted  children.  Bob and Joseph file a joint tax return in New York, but Bob must file with the federal government as “single/head of household” because of DOMA.  Bob’s employer allows pilots and their immediate family members to fly in unreserved seats for free.  Joseph has family in Hawaii whom he likes to visit once a year.  Joseph takes this trip in October with their 2 adopted children on unreserved seats.  The fair market value of a round trip ticket to Hawaii from New York is roughly $900 per person.  Because Bob makes $100,000/year, he is in the 28% tax bracket.  If Bob and Joseph include the value of these unreserved airline tickets as income, they will have to pay taxes on $102,700 in income instead of $100,000.  § 132(h)(2)(A) would normally allow Bob to exclude the value of these round-trip tickets to his spouse and 2 children from his gross income. But since DOMA does not allow the federal government to recognize Bob and Joseph’s marriage, §132(h)(2)(A) does not apply to Joseph.   Bob and Joseph therefore may only exclude the value of their children’s tickets from gross income.  As a result, they must pay an additional $252 dollars to the IRS come tax time (i.e 28% of the value of Joseph’s ticket), which they otherwise would not have to if the federal government recognized their marriage for purposes of § 132(h)(2)(A).

Two couples in identical circumstances.  But one couple pays $252 dollars more in taxes every year because they are a gay couple.  And only because they are a gay couple.

This example demonstrates two things: A) civil unions are inadequate for the purpose of achieving legal equality for same-sex couples, since civil unions are not mentioned in most of the federal tax code.  It refers to spouses and married couples, not “partners.”  B) DOMA is both a social and financial burden on gay couples.  This is not just social inequity.  It’s not just discrimination in the metaphysical, emotional sense.  Legal discrimination of same-sex couples on account of DOMA has real economic consequences for gay couples.  And the above story is yet one more example.

September 29, 2011
"

A federal judge has dismissed a lawsuit brought by a married binational gay couple in California who were denied a marriage-based green card by immigration officials.

Handi Lui, a citizen of Indonesia who in 2009 married his American spouse, Michael Ernest Roberts, in Massachusetts, sued the government after U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security, denied the couple’s marriage-based petition for permanent residency…

A House Republican-led advisory group currently defending DOMA in multiple legal challenges had moved to dismiss Lui’s complaint. And in a five-page order issued Wednesday, U.S. district judge Stephen V. Wilson did so…

"

Judge Throws Out Binational Couple’s Lawsuit Challenging DOMA (via ryking)

DOMA creates another manifest injustice.  Keep in mind that the judge made the right legal decision here.  Except for the whole part where he could refuse to recognize it as valid law because it’s blatantly unconstitutional.  But in order to do that, the parties would have to allege as much.  Without looking at the pleadings I have no way of knowing if they did, unfortunately.

(Source: diadoumenos)

August 16, 2011
STAGE COLLAPSE UPDATE: Coroner Tells Lesbian She Can't Have Partner's Body

liberal-life:

Bilerico reports that an Indiana coroner cited DOMA in his refusal to release the body of Christina Santiago to her lesbian partner. Santiago was one of five killed at Saturday’s stage collapse at the Indiana State fair.

It is situations like this that really shed light on how important ‘gay rights’ are. 

DOMA creates another manifest injustice.  Just like this one.  And this one.  And this one.  And this one.  And this one.  And this one.  And this one.  And this one.

UPDATE: apparently this story is not as clean-cut as it originally appeared:

A friend of mine emailed the coroner and got a response. She said, “This is all unfounded and their office was working with Christinas aunt in this situation because her fiance was also injured. I think he may be telling the truth, because the last report I read is that her partner was still in critical care.” The Indianapolis Star will likely have a story on this.

I await clarification with bated breath.

(via liberal-life-deactivated2011110)

August 9, 2011
Good Thing DOMA Isn't Still Creating Manifest Injustices For Gay Couples.

except when it breaks apart legal marriages.

June 14, 2011
Federal Bankruptcy Court: DOMA Is Unconstitutional

April 26, 2011
"

To put pressure on lawyers defending clients or laws because lobby groups don’t like them is deeply illiberal. It remains disgusting, for example, that rightwing groups targeted lawyers defending terror suspects and Gitmo prisoners. When the far right did this, it was despicable. Now that the left is doing it [in regards to DOMA], it remains just as despicable.

Memo to the gay rights leadership: the ends do not justify the means. Let DOMA have the most robust defense it can possibly muster and let us argue just as passionately for its unconstitutionality. When civil rights groups bully, they lose the moral high-ground. When you have men like David Brock leading the charge - and there are no means he has ever eschewed to achieve his ends - the danger is that we prove the far right’s point. We must be better than them.

"

Andrew Sullivan (who is gay).  I agree with this entirely. Prop 8 fell in a California District Court precisely because the legal and logical arguments it rests on were entirely without merit.  No amount of intimidation or disapprobation will win the legal argument against DOMA.  Intimidation and threats have no place in civil discourse.  

Lawyers who protect unpopular clients are patriots, not pariahs.  Liberals who support Gay Marriage must not forget that our legal system is a neutral arbiter with respect to the passions of the people.  I view DOMA as some of the vilest law ever to be proposed; but so too do Pro-Lifers, for example, feel that Roe v. Wade is equally vile, because it allows the wholesale slaughter and murder of innocent babies.  The point here is that the more unpopular and repugnant the client, the more necessary access to effective legal counsel becomes to ensure that people have fair access to justice, and laws are overturned on their (lack of) legal merits, and not merely on indirect popular disapproval.  

The legal system protects us all, and while paying a private law firm $500,000 in taxpayer money to defend DOMA may be excessive, the principle itself is valid and must be preserved; If the tables were turned, and it was a GOP president declining to protect healthcare reform because he thought it was unconstitutional, Liberals would undoubtedly approve if Congress hired a private firm to help defend the law on behalf of its supporters.  The legal system is a neutral arbiter, and access to representation, no matter how unpopular or repugnant the client, is paramount to a fair and balanced process.

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Filed under: politics gay rights DOMA 
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