THE HOUSE OF WINDSOR : ACCENTUATING THE HETERONORMATIVITY IN THE TAX INCENTIVES FOR PROCREATION
Anthony C. Infanti(fn*)
Abstract: Following the Supreme Court's decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades the federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor, this Article explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.
INTRODUCTION
The heteronormativity(fn1) of federal tax law and policy was no secret before United States v. Windsor.(fn2) In that landmark decision, the U.S. Supreme Court struck down the portion of the federal Defense of Marriage Act (DOMA) that refused recognition to same-sex marriages for purposes of federal law-including the tax laws at issue in the case-as a violation of “basic due process and equal protection principles applicable to the Federal Government.”(fn3) Following the Windsor decision, the Internal Revenue Service (IRS) acted quickly to issue guidance to same-sex couples indicating how the agency would apply the decision to the federal tax laws. The IRS's guidance recognized a broader range of marriages than some had expected, and it attempted to place this broad swath of married same-sex couples on ostensibly equal tax footing with married different-sex couples.(fn4) Given this quick action and the IRS's broad and enthusiastic interpretation of the Windsor decision in favor of same-sex couples,(fn5) it might be tempting to postulate that we have now entered a post-heteronormative tax world.(fn6)
Despite the IRS's good intentions, we are still far from a tax system in which heteronormativity is an artifact of history. As I have explained elsewhere, far from making things clear and simple for same-sex couples by placing them on equal legal footing with different-sex couples, the IRS's post-Windsor guidance actually “provides no more than the same veneer of clarity that DOMA did, as it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences.”(fn7) In this Article, I continue to plumb the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision or revenue ruling; it will take years of work uncovering the subtle ways in which heteronormativity pervades our federal tax laws and of identifying means of eliminating that heteronormativity. To further this work-and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor-I will explore the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.(fn8)
The remainder of this Article is divided into four parts. To set the stage for understanding the gap between rhetoric and reality, Part I summarizes the series of legal decisions, beginning with Windsor, that extol the equality of same-sex and different-sex couples, affirm the importance of marriage not only to same-sex couples but also to their children, and validate same-sex couples as fit parents. Part II continues to set the stage by explaining how the IRS has acted in keeping with this rhetoric by implementing the Windsor decision in a way that aims for a sexual-orientation-neutral tax system (at least insofar as the definition of “marriage” is concerned). In contrast, Part III recapitulates the longstanding heteronormativity of the tax incentives for procreation and explains the anticipated-and unremittingly heteronormative-operation of these tax incentives on compensated surrogacy post-Windsor. Indeed, because these tax incentives are now available only to couples with medically diagnosed infertility problems that impede their ability to “naturally” procreate-a problem unique to different-sex couples-these tax incentives will, if anything, be more heteronormative after Windsor than they were before. Part IV concludes by suggesting that this accentuated heteronormativity may open the previously closed door to constitutional scrutiny of the application of these incentives to procreation by married same-sex couples (and, by extension, other nontraditional families). The IRS and/or the courts could, however, easily ensure that this door remains closed by abandoning past interpretations of the deduction for medical expenses in favor of a broader, more inclusive interpretation that is in keeping with the promise of the Windsor decision and the IRS's actions post-Windsor.
I. WINDSOR AND ITS PROGENY
In June 2013, the U.S. Supreme Court issued its decision in United States v. Windsor(fn9) striking down as unconstitutional section three of DOMA. Prior to that decision, DOMA prohibited the recognition of same-sex marriages for purposes of federal law.(fn10) In Windsor, a majority of the Court found that “[t]he avowed purpose and practical effect of [DOMA] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”(fn11) DOMA “discourage[d] enactment of state same-sex marriage laws and . . . restrict[ed] the freedom and choice of couples married under those laws.”(fn12) Thus, the Court concluded:DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.(fn13)
Following the Windsor decision-both in time and, as the passage above suggests, often in reasoning-federal courts around the country have struck down one state same-sex marriage ban after another on constitutional grounds. A key component of all of these decisions has been the effect of prohibitions against same-sex marriage on the family and, particularly, on the children of same-sex couples.(fn14) This Part summarizes how families-gay and straight-have factored into this series of judicial decisions that would legalize same-sex marriage.
As of this writing in August 2014, federal district court judges and two federal courts of appeals have struck down same-sex marriage bans in fourteen different states since the Supreme Court decided Windsor.(fn15) The affected states include Colorado, Idaho, Indiana, Kentucky, Michigan, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Wisconsin. How family has factored into each of these decisions is described below on a state-by-state basis in (largely) chronological order. Before undertaking that summary, it is worth noting that when addressing the effects of state same-sex marriage bans on same-sex couples with children (or those who wish to have children), these courts often cite passages from the Windsor decision-even though that case arose in the context of the federal government's denial of the estate tax marital deduction to a surviving same-sex spouse in a couple with no children. Yet, providing fodder for the ensuing decisions regarding state same-sex marriage bans, the Windsor Court several times observed the importance of marriage not only to same-sex couples but also to their children.(fn16) Most strikingly, the Court stated of DOMA: The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.(fn17) As we will see, all of the recent federal court decisions have picked up and reaffirmed this theme in both similar and different ways.
A. Utah
In a challenge to the Utah same-sex marriage ban, the opponents of same-sex marriage argued...
