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June 06, 2021 The Tax Lawyer

Hegemonic Marriage: The Collision of “Transformative” Same-Sex Marriage with Reactionary Tax Law

Vol. 74, No. 3 - Spring 2021

by Anthony C. Infanti

Abstract

Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back at that debate—and explores the complex relationship between legal and social change—through the prism of the federal tax definition of marriage before and after the landmark decisions in United States v. Windsor and Obergefell v. Hodges . Through an examination of the Internal Revenue Service’s shifting positions regarding the recognition of civil unions and domestic partnerships, this Article explores how and why the promised transformative potential of same-sex marriage has failed to be realized in this influential area of law.

Read the full article or download the complete issue.