The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades our federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, “Compensated Surrogacy After Windsor,” this essay explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate. \ud \ud To set the stage for understanding the gap between rhetoric and reality, the essay first summarizes the series of legal decisions, beginning with Windsor, that extol the equality of same-sex and different-sex couples, affirm the importance of marriage not only to same-sex couples but also to their children, and validate same-sex couples as fit parents. The essay then continues the stage setting by explaining how the IRS has acted in keeping with this rhetoric by implementing the Windsor decision in a way that aims for a sexual-orientation-neutral tax system (at least insofar as the definition of “marriage” is concerned). In contrast, the essay then recapitulates the longstanding heteronormativity of the tax incentives for procreation and explains the anticipated — and unremittingly heteronormative — operation of these tax incentives on compensated surrogacy post-Windsor. Because these tax incentives will, if anything, be more heteronormative after Windsor than they were before, the essay concludes by suggesting that this accentuated heteronormativity may open the previously closed door to constitutional scrutiny of the application of these incentives to procreation by married same-sex couples (and, by extension, other nontraditional families). The IRS and/or the courts could, however, easily ensure that this door remains closed by abandoning past interpretations of § 213 in favor of a broader, more inclusive interpretation that is in keeping with the promise of the Windsor decision and the IRS’s actions post-Windsor