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Richard C. Milstein

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Income Tax Filings and Civil Disobedience

Posted: 03/28/2012 2:44 pm

In the watershed essay "Civil Disobedience," Henry David Thoreau writes, "Under a government which imprisons unjustly, the true place for a just man is also a prison." Thoreau would know: in 1846 he spent one lonely night in jail for refusing to pay his taxes, in protest of the Mexican-American War. This one act revolutionized the very act of revolution, inspiring independence in India and the civil rights movement in our own country. In Thoreau's view the intentional violation of unjust laws can change the world.

The spirit of civil disobedience has infiltrated the gay rights movement. The first inkling of such a spirit can be found in the Stonewall riots, but there are also some recent examples. The Campaign for Southern Equality has launched the WE DO campaign, which encourages gay couples to apply for marriage licenses in states where gay marriage is disallowed. In order to protest Don't Ask, Don't Tell, Lt. Dan Choi chained himself to the White House fence and organized sit-ins in several congressional offices. While some of these protests have resulted in successful change, gay and lesbian Americans are still forced, in many cases, to abide by laws and regulations that require them to hide their true identities and demean their lifestyles. A glaring example would be the filing of an annual tax return under the United States Tax Code.

Americans sign their tax returns as a pledge that the documentation is truthful, honest, and an accurate representation of their life and finances. However, those gay couples who have been legally married are technically not recognized by the IRS as "married." This distinction can make a huge difference in the deductions allowed and thus the amount of taxes paid each year. Beyond the simply fiscal impact, married couples are able to file jointly, not only saving time and money but demonstrating to the federal government that they are a unit, bound together in the eyes of the government and society. Shouldn't married gay and lesbian couples be able to file a joint tax return like their straight counterparts, then?

There are encouraging signs coming from Washington. The Obama administration has progressively been granting equal rights to gay Americans and declining to enforce anti-gay regulations. The State Department has extended the full range of legally available benefits and allowances to same-sex domestic partners of Foreign Service staff and allows same-sex couples to obtain passports under the names recognized by their state through their marriages or civil unions. Following Attorney General Eric Holder's statement in February 2011 that the Obama administration would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), INS has refused to deport gay and lesbian immigrants married to Americans. Even more recently, the administration said it would not defend the constitutionality of statutes blocking same-sex military spouses from receiving marriage benefits, including rights to visitation in military hospitals, survivor benefits, and burial together in military cemeteries. More recently, I had the good fortune to ask President Obama about DOMA, and he responded strongly, "You know I have said it is unconstitutional."

In this way, the importance of the Obama administration's decision about DOMA cannot be overstated. Mr. Holder's announcement specifically reiterated that the executive branch would no longer defend Section 3 of DOMA, which prevented federal recognition of same-sex marriages that are legal at the state level. Since that time the administration has continuously refused to litigate cases enforcing DOMA and has set an example for federal agencies to file suit. There is no indication that this same attitude could not and would not be applied to the IRS. If married gay couples this tax season decide to flood the IRS with joint filings, there could be an impetus by both the agency and the Obama administration to extend the tax benefits enjoyed by traditional opposite-sex couples to all married Americans. The group Refuse to Lie has already embraced this idea and encourages same-sex couples to file joint returns as a form of civil disobedience.

It is important to note that such a filing could have real consequences. If the IRS decided that the joint filing submitted by the gay couple was untruthful or dishonest, the couple could be subjected to one or more audits, substantial penalties, back taxes, and even possible jail time. Moreover, if the couple uses the services of an accountant or a tax professional, that person could be subject to penalties, as well, or could exercise his or her discretion to refuse to sign the joint return. As real as these consequences are, however, the rewards could far outweigh them, not only for the individual couple but also for the advancement of civil rights in America. More than 150 years ago, Thoreau spent one night in jail for refusing to submit to a law that betrayed his own conscience. Today, gay and lesbian couples have the same opportunity and continue the revolution for civil rights.