Document Type

Article

Publication Date

2025

Abstract

Looking back over the decade that has elapsed since the Supreme Court’s landmark marriage equality decisions in United States v. Windsor and Obergefell v. Hodges, this paper explores the complex relationship between legal and social change through the prism of the impact that these decisions have had on the tax landscape for the LGBTQ+ community. The paper examines the gap between the promise of “equal” treatment and respect for members of the LGBTQ+ community embodied in these legal decisions and a social reality in which discrimination—tax and otherwise—stubbornly persists.

The paper begins by examining how the Court’s marriage equality decisions reinforced the hegemony of marriage at the expense of alternative relationship statuses and, in turn, the LGBTQ+ movement’s larger goal of seeking to recognize a broad array of human relationships. The paper outlines state legislative reactions that largely limited or eliminated the availability of domestic partnerships and civil unions after Windsor and Obergell. The paper then documents the popular response to the availability of a choice between marriage and an alternative status through data gathered from a combination of public websites and public records requests regarding relationship registrations in California, Colorado, Hawaii, Illinois, New Jersey, and Oregon. The paper further discusses the potential federal tax contribution to these legislative and popular trends, which have generally seen movement away from domestic partnerships and civil unions and toward marriage.

The paper then explores how the U.S. Department of Treasury and the Internal Revenue Service’s codification of their post-Windsor definition of marriage worked to legally erase the same-sex couples whose relationships they were ostensibly tasked with recognizing. What’s more, attempts to get the IRS to embrace gender-inclusive language in its discussion of marriage in taxpayer publications and other published guidance long foundered, was finally embraced, and now seems to have perished as part of the Trump administration’s anti-DEI crusade. Likewise, the paper documents Congress’s failure to enact bills to ensure that same-sex couples who experienced tax discrimination under the federal Defense of Marriage Act could amend their pre-Windsor tax returns to obtain redress—as well as how that proposed legislation, even if enacted, would leave discrimination against many same-sex couples unaddressed. The paper also explores how financial support for procreation and family formation funneled through the tax code continues to marginalize and exclude members of the LGBTQ+ community, notwithstanding the Supreme Court’s deep concern in its marriage equality decisions with same-sex couples’ ability to form families. The paper closes with a discussion of how the much-feared potential for Windsor and Obergefell to end federal financial support for charitable organizations that engage in sexual orientation–based discrimination was little more than a red herring.

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