2013 Marriage MapIn June, 2013, the United States Supreme Court declared Section 3 of the federal Defense of Marriage Act (DOMA), to be unconstitutional in the landmark case of United States v. Windsor 570 U.S. ___ (2013) (Docket No. 12-307).  As a result, the federal government must treat same-sex married couples and opposite-sex married couples equally in its application of more than 1,000 federal laws and benefits affecting married couples.

But Section 2 of DOMA remains fully intact, and still permits individual states to disregard same-sex marriages.  Many experts are left scratching their heads over the question of how the federal government will ultimately decide whether or not a couple is married.

An August 16, 2013, article in the Christian Science Monitor explains:

The court struck down Section 3 of DOMA, which denied federal recognition of same-sex marriages. It left in place Section 2, which allows states to refuse to recognize same-sex marriages performed in other states. That means that if a same-sex couple legally married in a state that allows gay marriage subsequently moves to a state that doesn’t, their marriage ceases to exist where they reside.

What does that mean for the couple’s federal taxes? While they live in a state allowing same-sex marriage, the couple must file federal tax returns as a married couple. What happens when they move to a state that denies their marriage is not yet clear. That depends on whether the IRS decides to define marriage based on the couple’s residence or their “place of ceremony,” the state where they were married.

So will the federal government follow a “place of residency” rule or a “place of ceremony” rule?

Under a residency rule, a married same-sex couple living in Maryland–which recognizes their marriage—must file their federal tax returns as married, either jointly or separately. If they move across the Potomac into Virginia—which constitutionally bars recognition of all same-sex marriages—they must switch to filing single or head of household returns. Unless Congress or the courts undo DOMA’s Section 2, that situation will prevail.

If the IRS chooses instead to switch to a place of ceremony approach, same-sex couples who marry in one of the 13 states or the District of Columbia that allow such marriage will have to file their federal tax returns as married, regardless of where they subsequently live. State law will determine their state tax filing status but they would file the same federal returns regardless of where they live.

The federal government has traditionally deferred to the states’ varying definitions of marriage, meaning that the federal government would define a couple as being married if the state in which they resided would also define them as married.  If this traditional federal definition of marriage continues, as many assume it will, same-sex married couples will continue to face unequal federal treatment if they reside in the nearly one-half of the country that bans recognition of same-sex marriages.


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