Fortunately, it's all written down somewhere. But there's a question
of law here as well as a question of fact, and actual cash money may be
involved. When does the government think my husband and I got married? It's
probably naive to expect a consistent and systematic answer. As of this
writing, however, the federal government's answer is fairly clear: Not
yet. This April 15, like every other that we've spent together, my
husband and I are filing our federal taxes as if we were single.
New York state, on the other hand, does admit we're married. But to
judge by the vicissitudes of its tax policy, it isn't entirely sure when
our marriage took effect. (For the fact-checkers in the audience, let
me concede at once that I am speaking loosely and rather metaphorically
when I suggest that tax policy has a consciousness.) Between 2008 and
2011, gay residents of New York state who had been married in other
jurisdictions were permitted to file in New York as married couples if
they wanted to. But they weren't obliged to. It seemed that for tax
purposes a gay marriage came into existence in New York only when a
couple felt like declaring it.
If gay spouses sued each other for divorce in those years, the
playful conditionality no doubt vanished abruptly from all definitions.
Still, the open-mindedness about taxes was odd. It could be that the
state's revenue department felt bashful about the paperwork that a gay
couple would have had to go through, which was indeed Kafkaesque. My
husband and I got married in 2010, and although we could have filed as a
married couple for that fiscal year, we didn't, largely because I'm the
sort of geek who does his own taxes and I wanted to keep the paperwork
as simple as possible.
The reprieve was brief. Starting with fiscal year 2011, the
Kafkaesque became mandatory. Married gay couples in New York now had to
file as such, and in order to do so, each spouse in the couple first had
to complete a federal tax return as if he were single. Next the couple
completed a third federal tax return, based on the counterfactual premise that the federal government did
recognize their marriage after all. Only then, using figures from the
counterfactual federal "as if married" return, was the couple able to
complete a state return. It was important to remember not to send the counterfactual federal return to the IRS; there seemed to be a fear that it would upset them.
That's the regime again this year. In point of fact, I'm wrong to
call only one of the three federal returns counterfactual. All three of
them are: It isn't true that my husband and I aren't married, and it
isn't true that the federal government recognizes our marriage. Only the
state return is honest. It's too bad David Foster Wallace didn't live
long enough to devote a chapter of The Pale King to the subject.
When does the law think gays got married? is a question explicitly before the Supreme Court in United States vs. Windsor,
one of the two gay-marriage cases it's considering. Edith Windsor
married her wife in Toronto in 2007 and became a widow in 2009 while
living in New York state, which was then in its intermediate period of
recognizing out-of-state gay marriages but not allowing in-state ones. A
straight widow wouldn't have had to pay estate taxes. The court has to
decide whether Windsor should have, and if it rules in her favor, the
federal government will be recognizing her 2007 wedding date.
The thing is, Windsor deserves an even earlier one. After all, she
and her wife were together 40 years before they got married. Almost
certainly they would have married sooner if they could have, and almost
certainly the government is to blame for the delay. Windsor is fortunate
in having been left an inheritance. But what if she hadn't been, and
what if her late wife had been the primary breadwinner and had paid
Social Security taxes all the years they were together? In that case,
shouldn't Windsor be entitled to Social Security survivors benefits
based on her late wife's income? And shouldn't the benefits be greater
than the pittance that she would get if the Social Security
Administration calculated them strictly on the basis of her wife's
income between 2007 and 2009?
Recognizing Windsor's 2007 marriage, in other words, may not be
enough. But though there's an injustice here, the remedy isn't clear.
How could the Social Security Administration determine a hypothetical
earlier start date for Windsor's marriage? Would it choose the date that
Windsor and her wife first met? Would it choose the date they first
moved in together? Would government bureaucrats devise a formula? Enter
on line 24e the date you and your spouse first opened a joint checking
account. Enter on line 24f the earliest Thanksgiving spent exclusively
with in-laws. I'm kidding around, but there are serious questions
of equity and social justice at stake. The wrong here is literally
incalculable.
It's easy, however, to calculate the difference between the
counterfactual returns that my husband and I have completed and the ones
we have actually mailed to the IRS. Simple arithmetic shows that in
2011, we paid $5,675 more than we would have if the federal government
had recognized our marriage, and in 2012, $4,250 more. (I benightedly
write for a living and my husband, though he also writes, has a proper
job; couples like us with a significant income disparity usually come in
for a marriage bonus, not a penalty, when paying taxes.) There's
something a little sordid about these dollar amounts. Whatever the cost
of being gay in America may be, they don't correspond to it. But I find
their perspicuity, however petty and inadequate, somewhat fascinating.
Numbers are so definite, even when their meaning isn't.
After United States vs. Windsor is decided, I expect that my
husband and I won't need to sue in order to have the differences
refunded. I expect we'll just file amended tax returns. (Probably. I'm
not a tax lawyer, so please don't take this essay as tax advice.) The
process ought to be fairly easy, since the complete, correct forms are
already sitting in manila folders in our basement—as they are in the
basements of thousands of other gay couples in New York and other states
that recognize gay marriage. I'll just have to white-out the words "AS
IF," which I had scribbled in all caps at the top in order to prevent
myself from accidentally on purpose mailing them.