Anthony Infanti, Professor of Law at the University of Pittsburgh, published a paper in the most recent issue of the Michigan Journal of Gender & Law that redefines what constitutes a tax.
Partially cross-posted at D. J. Marcus's Tax Blog
In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.
Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or unavailing, classifying the DOMAs as a tax provides grounds for arguing that this tax on lesbian and gay families should be taken into account when assessing the justness of the distribution of the overall tax burden. On a rhetorical level, labeling the DOMAs a tax on lesbian and gay families effectively counters the notion - implicit in their current moniker - that the DOMAs are a necessary "defense" of marriage against an assault by same-sex couples. Instead, calling the DOMAs a tax may prove to be an effective means for shifting the rhetorical debate over same-sex marriage by making it clear that the DOMAs do nothing more than punish lesbian and gay families because they are different.
First, I do not have access to the paper itself, so I can't analyze the full position of Mr. Infanti. That said, here's what I think about it:
A rhetorical shift in how we think about DOMAs is not going to change the minds of people who consider a gay lifestyle anathema to everything they stand for. The authors of DOMAs across the country were concerned not with the financial impact of homosexual marriage, but rather the moral impact. So, if Mr. Infanti considers this a remedy for DOMAs, I disagree.
Without being too tongue in cheek, I have to wonder how the type of person who would support a DOMA would feel about the fact that homosexual couples pay higher taxes than heterosexual couples. What takes higher priority - lower taxes or "higher" morals? Remember, these are the same people who oppose progressive taxation. So, I'm guess that making an argument that a DOMA adds injustice to the tax scheme of the nation probably would fall upon deaf ears.
To directly address CoffeeTalk's comments below: the government has a long history of creating tax incentives to encourage behavior. Whether we like it or not, anything that has tax consequences will end up changing how Americans behave. Perhaps directly labeling it a tax is misleading, but consider this - a tax credit for being married is effectively a tax on being single. A tax credit for hybrid vehicles is effectively a tax on SUVs (beyond the gaz guzzler tax already in place). So, while I disagree with the reason for classifying DOMAs as a tax, I do agree that DOMAs can be considered a tax on homosexual couples.
Update - Commenter skrekk linked to a NYTimes article regarding the higher lifetime expenses of a homosexual couple