Only legally married opposite sex couples can file joint tax returns, and this is only one of the 1138 rights and benefitsthat marriage provides throughout the United States.
The results of the vote on Proposition 8 in California concluded with an unfavorable outcome for same-sex equality. So much investment in time, money, energy, and soul had been involved to achieve favorable results for equality. Now this investment appears that it must continue via protest, boycotts, and in other ways. This continuation is in one state only, a liberal/progressive one at that. And then continue in forty-five or so more states afterward before committed same-sex couples are legally recognized in all parts of our nation. The thought of this is overwhelmingly daunting.
But what if, we could take this ON A NATIONAL, OR FEDERAL LEVEL?
This diary will attempt to expound a shift in tactic to maybe more efficiently acquire those same 1138 benefits (as stated by the General Accounting Office) for committed same-sex couples that legally married opposite sex couples now have. Most of those benefits appear to be with the federal government - the remaining benefits appear to be state or employer related.
(I called my congressional representative's office. After a brief telephone conversation about this with the person there, who is familiar with the federal legislative process, I learned that this is something that in theory could be feasible. Of course it would be complex. Enough said. And he'd like to read this once published here.)
This approach to same-sex equality would probably require much less of an investment in each and every state. The big bold proposal here is rather than approach state by state by state - do this at the federal level.
Be aware that there is a trade-off involved.
To begin, marriages are legally authorized by each of the individual states of our nation. Almost all of the states have individually erected formidable barriers to couples of the same-sex being married. Most states will not permit or recognize it, even if a same-sex couple is legally married in another state or country. And it appears practically next to impossible to entice most of these individual states, whether through voter initiative, state legislative action, or state judicial action, to legally recognize same-sex couples and allow equal rights and benefits. With the failure of Proposition 8 in California, it’s pretty obvious of the overwhelming commitment that would be needed before same-sex couples have the same rights as married couples do nationwide.
With that in mind, we can question: Is there anything that the Federal Government can do about marriage? Hardly, because licensing marriage is outside of the jurisdiction of the Federal Government. Marriage is the right of a state. The Tenth Amendment Of The Constitution and historical precedent would say it is. So be it.
But - there may be a legitimate way in which our federal legislators can act to provide nationally - the same 1138 benefits for same-sex couples that marriage provides for opposite sex couples.
Let us, for arguments sake, say congress could produce and pass and then the president could sign into law something called the
THE DISTRICT OF COLUMBIA ENTERPRISE ZONE COMMITTED PARTNERSHIP ACT.
The District of Columbia Enterprise Zone is a section of the tax code. The federal government has the power to create enterprise zones.
But first let’s backtrack. Before this new legislation is produced, the Defense of Marriage Act (DOMA) must be repealed. This hideous law was passed by congress and then signed into law in 1996 by then President William Jefferson Clinton. This law states reads as follows:
- No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
- The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
DOMA can be repealed in two ways. The first way is through the judicial system.
DOMA is currently working its way through the court system, and the primary arguments being used are: 1) equal protection in Romer v. Evans, 2) privacy in Lawrence v. Texas.
Also from the June 2004 Harvard Law Review:
Until recently, DOMA was effectively unchallengeable by the individuals subjected to its stigma. . . . Now the time is ripe for a constitutional challenge to DOMA. . . . DOMA violates principles of equal protection and due process. A strong case can also be made that DOMA abuses the Full Faith and Credit Clause and contravenes fundamental principles of federalism. A successful equal protection or due process challenge, however, is likely to have the farthest-reaching implications for the future of same-sex marriage in two respects. First, if DOMA is found to violate equal protection or due process, the state DOMAs are likely to fall on the same grounds. And second, it is difficult to imagine how the Court could find excluding same-sex couples from the definition of marriage unconstitutional without creating a constitutional requirement that same-sex couples be allowed to marry.
Another challenge to DOMA had recently been brought into tax court by Charles Merrill, cousin of the founder of Merrill Lynch, and the issue here is tax law.
The court approach may take many years and may not necessarily guarantee positive results with the composition of the current U. S. Supreme Court.
There second way to repeal is that congress can simply pass a bill and then the president can sign this bill - and this bill would simply declare DOMA null and void. This could be done very expeditiously in the next legislative session if the will were there.
Having DOMA overturned by a sizable majority by the U.S. Supreme Court would probably send a stronger political message than having DOMA declared null and void by the federal legislative process. Either way, DOMA must be gone.
By virtue of the Sixteenth Amendment of the Constitution, the federal legislative body has basically a wide-reaching ability to enact tax codes, the limitation being that these codes are "geographically equal" among all of the states.
With DOMA repealed, congress can now focus to enact the District Of Columbia Enterprise Zone Committed Partnership Act, or DCEZCP. Maybe there will be a better name for this. However, it is most important here that the words "marriage" or "matrimony" or any of their derivatives cannot be use in this legislation. This would simply be a tax bill. Linking this legislation to marriage would be incorrect ethically and legally and tactically. Ethically, according to Pew Research, because a majority of Americans will support same-sex civil unions but not same-sex marriage. Legally because of the Tenth Amendment. And tactically, even though there will be strong resistance to this, there will be less total resistance.
The current process of marriage basically involves: 1) applying for and completing the initial paperwork, or OBTAINING A LICENSE, presently issued by a state authorized bureaucratic entity, 2) a PROCEEDING OF COMMITMENT (or ceremony), where the couple commits to one another in front of a) an official, licensed to do such and b) witness(es) at this proceeding. The marriage becomes legal upon the conclusion of the proceeding, and 3) a PROPERLY ENDORSED DOCUMENT (with signatures from each of the couple, the official, and witness) OF THE PROCEEDING (marriage certificate) is then filed with the proper state approved bureaucratic entity.
In a shift of gears here, the City Counsel of Washington D.C. is set to pass a bill legalizing same sex marriage. D.C. is under the jurisdiction of the federal government. Our new progressive congress will allow D.C. approval of this bill if D.C. agrees to administer the "Committed Partnership" Act.
Our new congress would have to re-establish the District of Columbia Enterprise Zone, which expired on 12/31/07the The Act would be written into Title 26, Subtitle A, Chapter 1, Subchapter W of the U.S. tax codes along the lines of the following:
The District Of Columbia Enterprise Zone
Committed Partnership Act
- (1) the applicable Washington DC area is hereby redesignated as the District of Columbia Enterprise Zone, and
(2) except as otherwise provided in this subchapter, the District of Columbia Enterprise Zone shall be treated as an empowerment zone designated under subchapter U.
- There shall be a designation of Committed Partnership.
- The District Of Columbia Enterprise Zone shall be the administrator of Committed Partnerships.
- This designation will consist of two and only two mutually consenting adults of legal age.
- Formation of the Committed Partnership will be established by
a) proper initial procedure of the licensing requirement,
b) completing the Proceeding Of The Commitment performed by a licensed official and observed by one witness,
c) properly filing the endorsed license.
- All those in a Committed Partnership must be entitled to file jointly on their federal income tax if they so choose.
- All those in a Committed Partnership must be entitled to all of the federal privileges that are unique to joint filing.
With this new tax code, once a couple is recognized by DCEZCP, whether they be opposite or same-sex, they would have all of the benefits of the departments of Treasury (taxes and social security), Justice, Immigration, Veterans Affairs, Commerce, Health and Human Services and all of the other federal agencies that provide unique benefits to those who are allowed to file jointly, and presently, only legally married couples have the option to file jointly.
Since federal law has recognized DCEZCP, states must follow in line do to the Supremacy Clause of the Sixth Amendment of the Constitution. Same-sex couples now would have a path to be able to acquire all of the 1138 benefits as married couples.
And if legislated properly, court challenges could be difficult. Challenging tax codes are difficult, especially when it’s not about paying more taxes. Challenging Washington D.C.’s Enterprise Zone and its undertakings could be difficult. Challenging taking away rights from citizens could be difficult.
There may be issues of whether or not our federal government is empowered constitutionally to do this. Tenth Amendment issues? We must remember that the federal government is simply allowing two individuals to validate a contract via the tax code between themselves and keeping a record of this. This contract qualifies couples certain treatment under I.R.S. guidelines. And since the founding of our nation, marriage has always been as a contract. In her book, Colonial Love & Marriage, Myra Vanaderpool Gormley, CG, states:
"Whatever religious significance they (our early settlers) attributed to marriage, all the colonies recognized it as a civil contract based on mutual consent of both parties."
Even our founding fathers recognized marriage as a contract.
There are other instances where our federal government provides services that are not exactly specified in the constitution. These things can be issuing passports, immigration cards, and social security card, all of which are in a sense licenses.
There are instances where congress passed and the president signed laws regarding marriage. DOMA is an example and may yet prove to be void in a court ruling.
The U.S. Supreme Court has ruled on a number of issues of concerning marriage.
Congress enacts tax policy, and the I.R.S. definitely has jurisdiction over contractual issues and their application in tax policy.
This is so un-romantic. There will probably be those who will object to the fact that this would be like a civil union, and nothing more. Okay, this is a code in the tax law, and with real rights and benefits for couples, whether they be opposite or same sex. The I.R.S. has teeth, nationwide.
Hard to please activists might object on the grounds of separate but equal. But let's think this way. Once a couple obtains the DCEZCPR, they are free to pursue a PROCEEDING OF COMMITMENT of their choice. If some religions marry same sex couples, then the couple could go there and have their PROCEEDING OF COMMITMENT in the form of a wedding ceremony. The cleric can simply obtain a DCEZCP license to perform the PROCEEDING OF COMMITMENT and have the ceremony as a wedding. When the PROPERLY ENDORSED DOCUMENT OF THE PROCEEDING is filed with the federal government, and it states that the PROCEEDING OF COMMITMENT was done in a house of worship and in the fashion of a wedding ceremony, so be it. This would be accepted as long as the basic elements of the DCEZCP were as required. DCEZCP would be recognized by the federal government solely as a contract between two consenting adults under the law. And in this above situation, the couple could claim with all honesty that they were legally married in a religious ceremony.
DCEZCP could be used by same-sex couples where localities are too bent out of shape to recognize same-sex relationships, or maybe by opposite sex couples who are atheists, or agnostic, and don't want to put up with the religious baloney that some localities still have hanging around. Opposite sex couples may also want to record their lifetime commitments here in support of the LGBT community, so that we are a nation of equality for all. The federal government may even throw in and extra benefit or two to make this more attractive than a commitment authorized by a state. Maybe - even in our wildest imaginations - a 2% discount on your first joint tax filing? This can be made separate and better.
Washington D.C. would have jobs created and revenue flowing in from a new source.
AFTERTHOUGHTS.
BARACK OBAMA AND GAY MARRIAGE/ CIVIL UNIONS:
Although Barack Obama has said that he supports civil unions, he is against gay marriage. In an interview with the Chicago Daily Tribune, Obama said,
"I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."
Barack Obama did vote against a Federal Marriage Amendment and opposed the Defense of Marriage Act in 1996.
"Giving them a set of basic rights would allow them to experience their relationship and live their lives in a way that doesn't cause discrimination. I think it is the right balance to strike in this society."
ON GAY & LESBIAN ADOPTION:
Barack Obama believes gays and lesbians should have the same rights to adopt children as heterosexuals.
Sources: Chicago Daily Tribune, National Gay and Lesbian Task Force
In the next House of Representatives, there will be a majority of Democratic/progressive members. If constructed into a resolution correctly, DCEZCP should have no problem passing in that chamber.
In the next Senate, there needs to be at least 60 Senators to bring DCEZCP to a vote. It could probably pass with a majority vote there. However, the trick would be to get 60 senators to get this out to the floor for a vote.
From the above statements, we would assume that President Barack Obama would sign this legislation if it were to reach his desk.
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So what would appear to be better? Spending all of the energy in confrontation with some forty five plus states individually? Or maybe getting all of the best activists, attorneys, legal scholars, and legislators to expand rights on a federal level? Is it time for Lambda and the American Civil Liberties Union and other such organizations to start lobbying same-sex equality friendly federal legislators into a path such as this?
Would it be worth it to get the congress to see the light in this? There must be some way that the federal government can accomplish this if the will were there. Maybe this could be a quick delivery vehicle so that millions will have the civil rights afforded to them and discrimination will end in to shortest amount of time? And after that, who knows.
Comments are welcome.