Here we go again. Another federal court has once again ruled that DOMA is unconstitutional. This is another case brought by GLAD (Gay and Lesbian Advocates and Defenders). It involves a number of different plaintiffs, all married in either Connecticut, New Hampshire, or Vermont. As with GLAD’s other DOMA challenge (the Gill case recently decided by the First Circuit), this case includes a number of tax claims.

The case is Pedersen v. OPM, decided by the federal district court in the District of Connecticut. You can read the decision here. As in other DOMA challenges, the Bipartisan Legal Advisory Committee (BLAG) intervened to argue in favor of DOMA’s constitutionality.

But BLAG made another argument as well. As to the tax claims that same-sex married couples should be entitled to file joint tax returns, BLAG argued that the couples did not have “standing” to challenge DOMA. Why? Because, even if DOMA was unconstitutional, same sex couples would not be able to file joint tax returns. Section 6013 of the Internal Revenue Code says: “A husband and wife may make a single return jointly… .” Get it? Even if DOMA falls and your marriage is recognized, you cannot be a husband and wife. Those are gendered terms.

I’ve seen this argument mentioned by a number of tax scholars and I’m glad to see that a judge has finally laid it to rest. I even talked to someone in Chief Counsel’s Office who said he was researching the question because the IRS needed to know whether to allow joint filing if DOMA was repealed. But here’s the thing. Section 7701 of the Internal Revenue Code (general definitions) specifically references 1 USC §1, which provides that the masculine shall include the feminine. The intent was to degender terms throughout the Code where necessary. Judge Vanessa L. Bryant got it exactly right in my view. She said this provision means that husband and wife should be construed as gender neutral terms – i.e., spouse. That means that joint filing status is available for spouses, whether or not they are “husband and wife” in the traditional sense. Brava! And I hope that argument will now be put to rest for good.
 

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