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Tuesday, January 24, 2012

Same-Sex Couple Married in DC and Moves to VA...and Files State Taxes Jointly. Uh oh....

The problem is that Virginia does not recognize same sex marriages. In fact, it gives no comity to same sex marriage performed in sister states. This presents a rather difficult legal pickle. The whole idea behind comity is to prevent an impossible mish-mash of laws between the states; and ensure fairness -- you agree to my laws, I'll agree to yours (admittedly simplified). So..what happens when this breaks down? In the example from the title, a lesbian couple legally married in DC has no rights as a couple in Virginia. They could not file a joint tax return claiming married, filing jointly. If the couple did, they would be filing a fraudulent return, as VA specifically disclaims same-sex partnerships, and affirmatively denies them the right of married couples (such as joint filing of taxes).

But is this legal? Arguably, it is not. This is genesis of a really interesting lawsuit.

If you argue the Constitution grants the right (via a "penumbra" emanating from the 1st Amendment) to citizens to choose their marriage partner (see Zablocki v. Redhail where the Supreme Court indicated that the right to marry is "of fundamental importance" and "significant interference" by the state gives rise to "critical examination" (compelling interest test/strict scrutiny)), then the 14th Amendment would be the perfect vehicle for enforcing the rights of the DC couple under VA law. While states may make such determination and statutes to protect the welfare of their people and ensure laws are not broken (incest, and mental capacity, for example), the removal of free choice in the sex of the partner a man or woman wishes to marry is a mangling of the due process afforded any citizen of the US, and badly skews the degree a state may interfere in the welfare of its citizens. The argument could also be made that VA is violating the Equal Protection clause of the 14th Amendment by failing to treat male or female citizens equally merely as a result of their private sexual preferences. The choice of sexual preference, or activity, has now long been recognized as protected under the constitution and inviolate by the states (see Lawrence v. Texas). If the state has no right to constrain the conduct overtly, then it is arguable that denying marriage to the same population is merely a pretext for attempting to constrain the conduct again (and therefore violative of substantive due process and Equal Protection).

To be fair, the afore mentioned is merely a rough sketch of a constitutional argument concerning same sex marriage. A significant amount of additional research and case law would be needed to support the position. But I do believe it is completely supportable.

Sean R. Hanover, Esq

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