Marriage and Taxes

Interesting piece in the New York Times Magazine on the dilemma same-sex couples married in MA face when filling out their federal taxes, which do not allow them to check off one of the "Married" boxes.

Two quick points:

1. Some couples believe that the federal government is forcing them to lie by checking off "Single." I disagree. The strongest argument in favor of same-sex marriage is that marriage itself is just a secular legal relationship. Although I strongly believe that same-sex marriage should be permitted under federal law, it is not inconsistent with the view of marriage as a legal relationship to say that one is married under MA law, but not federal law. Checking off the "Single" box just means "I am single under federal law." Morally, we may believe that federal law should recognize these relationships, but as a descriptive matter, there is no lie here.

2. The article also mentions that some same-sex couples will simply fill in the "Married, Filing Separate" box to ease their consciences, and the IRS will just ignore it. Mathew Staver, a conservative opponent of same-sex marriage, states:

''[D]own the road, people could say, 'We've been filing as married for quite a long time, and the I.R.S. hasn't done anything about it.' . . . Practice can ultimately become future law.''

I disagree with his politics, but I don't think his prediction is wrong. Aren't we likely to hear estoppel arguments?  "We have been representing ourselves as married to the federal government for 30 years. The government took no action against us during all of that time. It can't now deny a fact that it has tacitly accepted for 30 years!"