Lily Kahng

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The 2013 Supreme Court decision in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act and cleared the way for same-sex married couples to be treated as married for federal tax purposes. The Internal Revenue Service promptly issued a ruling announcing its recognition of same-sex marriage. Academics, policymakers and activists lauded the change as finally achieving of tax equality between gay and straight 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 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 being taxed as married. In finding that women in same-sex marriages are at serious risk to suffer adverse consequences from their new tax status as married, the article extends the existing literature that analyzes the ways in which the tax law — though facially neutral in its treatment of heterosexual married couples — privileges traditional marriages in which men are the primary income earners and wealth holders, and adversely affects married women’s incentives and abilities to be workers, income producers and wealth holders. The article argues that the unfavorable tax treatment of women in both same-sex and different-sex marriages stems from the fictitious construction of two individuals as an irreducible economic unit, the same fiction that perpetuates traditional, male-dominated marriage. The article concludes that taxation on the basis of marital status should be curtailed through the abolition of the joint return and other reforms.

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