Heterosexual Privilege and the Internal Revenue Code

The Internal Revenue Code privileges married couples in several different ways. Not only do certain rules offer economic benefit, but the rules also serve an expressive function by delivering a message about the value of marriage. Despite the existence of the marriage tax penalty and a handful of other rules that only benefit the traditional one-earner married couple, the Internal Revenue Code, on balance, privileges marriage over non-marriage, and thus privileges heterosexuality. This article identifies three distinctive harms to gay men and lesbians that result from this privileging of heterosexual marriage. They are: (1) the denial of specific tax benefits granted to married couples; (2) a stigmatic harm from failing to accord any recognition of same-sex relationships; and (3) certain consequential harms or burdens caused by rules that either ignore same-sex relationships or presume that same-sex relationships do not exist. The article then discusses specific examples of these harms, including (1) the inability of gay couples to split income, (2) the taxation of fringe benefits provided to domestic partners, (3) the taxation of gratuitous transfers, (4) the treatment of joint tenancy ownership under the estate tax, and (5) the lack of clear rules regarding property divisions when gay couples terminate their relationships. The article does not propose solutions to all of these problems. Its purpose is to broaden our understanding of the different ways in which laws privileging heterosexual marriage can cause harm to same-sex committed couples