Please forgive me for not posting for a while. I have written posts, but they have almost always become irrelevant in a few days. That is because the world of marriage equality changes daily.
On Monday, as anyone who reads a newspaper or listens to the news knows, the United States Supreme Court denied cert in all of the marriage cases that were before it. What does this mean? Truth is, who knows? The Court did not explain its decision, but it lifted all of the stays that were in place, thereby making the Court of Appeals’ rulings final and enforceable. That means every state in the 10th and 4th Circuits should be recognizing marriages now, although it appears that South Carolina was resisting last I checked.
Then the Ninth Circuit ruled in the Nevada and Idaho cases. Nevada won’t continue arguing that same-sex marriages are invalid so that adds another state to the growing list of recognition states. But Idaho, like South Carolina, is reluctant to cave into the tide. And even though the 9th Circuit mandated that marriages were legal in Idaho, the U.S. Supreme Court granted a stay. We are all trying to read the tea leaves to see what these procedural postures mean.
For tax return preparers the question is this: do I get to amend state returns NOW on the basis of what appear to be final decisions in favor of marriage in the 4th, 9th, and 10th circuits? Hey, the Attorney General of the United States said that the federal government would recognize all marriages entered into in places like Utah before the stay for Utah was in place (now of course it has been lifted). So it makes sense to say that once the stay is lifted in all states in the 4th, 9th, and 10th circuits (other than Idaho – although even as I type this and prepare to post it, I realize that the situation in Idaho could change) taxpayers in those states with state income tax laws (Nevada for example doesn’t have a state income tax) should be entitled to file amended returns for open years (open under the statute of limitations) and claim a refund. And maybe they should do so quickly just in case (ugly thought) the US Supreme Court ultimately takes a same-sex marriage case and rules against the constitutional right to same-sex marriage.
Chaos, in my view, if they ever did that. But we all know that appointments to the Supreme Court are made by the President in power. And the balance of power could change at any moment. Besides, people can die (although in my view the Supreme Court justices have the best health care in the world and so the chances of death even at advanced age are greatly reduced).
So, bottom line, I think we are probably OK on the continued recognition of same-sex marriages in the new states that are recognizing such marriages because of current litigation. But since the US Supreme Court is not taking any current cases, it might be prudential to file amended state returns in those new recognition states as soon as possible IF the ability to file jointly helps you.