So now here comes an article on a website called “TaxTV.com” about
Hidden Tax Advantages for Same-Sex Couples which details a lot of the ways marriage impacts taxes and DOMA is helping lots of same-sex couples. I’m sure there are ways DOMA hurts same sex couples as well, but what the article impresses to me is the need to reform marriage tax law in general as part of replacing DOMA with better law. Right now it’s a great time for tax lawyers and rich same-sex couples who can afford them, but the rest of us are getting screwed while our court system is burdened and our IRS lawyers are burdened. The arcane laws cited in the article made my head spin thinking about how many little tricks are used that might be legal, moral, and ethical, but are nevertheless not fair or beneficial to society.
I have some proposals for changes to marriage law that would reduce fraud and manipulation, re-inforce the purposes of federal benefits for married couples, and be legal, moral, and ethical as well as fair, reasonable, and beneficial to society.
One, which I’ve been proposing here since 2006, is to enact the three laws of what I called the Egg and Sperm Civil Union Compromise, which would replace all three parts of DOMA completely. One of the three laws would be to federally recognize state Civil Unions as if they were legal marriages for all federal purposes, if the Civil Unions were defined by the states as “marriage minus conception rights.” (The other two laws would preserve natural man-woman conception and preserve marriage’s conception rights, but that’s not the subject of this diary.)
So with that law, same-sex couples would have all the same federal and state benefits and protections and legal rights except the right to conceive offspring together (which they would also be prohibited to attempt). There would be no separate legal channel for dealing with same-sex couples anymore, courts would be able to ignore the sex of the the couple. Except of course when a couple comes before the clerk and wants a license, then the clerk would determine if they were in a relationship that was prohibited to marry (by existing laws that prohibit siblings, already married, etc, and the new law would add the same sex) and if so give them a license to enter a Civil Union that didn’t approve them to have sex or conceive offspring together.
But how much will giving federal marriage benefits to same-sex couples cost? I haven’t found a figure for how much the Respect For Marriage act will cost, isn’t that something the OMB does for every bill?
Which brings me to my second proposal to reform marriage laws: I think we need to stop abuse of marriage law by people who use it to shield income, increase their retirement benefits, and avoid immigration restrictions. Just as the INS has a special distinction already between “legal marriage” and a “bona fide marriage” in order to stop immigration fraud, we need to use that same distinction in recognizing fraudulent marriages entered into for tax and benefit purposes. I think we should only recognize marriages for federal purposes if they are bona fide marriages, which means they were entered into with the exclusive commitment to have sex and conceive offspring with each other and no one else. Therefore marriages that take place after a cutoff age of 65 we can say are not bona fide marriages, and save Billions. And same-sex civil unions could be recognized but not as “bona fide” mrriages, and we could say only bona fide marriages should get federal benefits. That’d mean that recognizing them as marriages wouldn’t cost us anything.