The Tax Lawyer

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

by Anthony C. Infanti

Abstract

Before there was a culture war in the United States over same-sex marriage, there was a debate between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some within the community opposed pursuing the right to marry 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, however, saw marriage as a civil rights issue because of the central importance of marriage in American society. They sensed a profound wrong in denying marriage to same-sex couples who carried on lives no different from their heterosexual counterparts. Marriage proponents also lauded same-sex marriage’s transformative potential, contending that it would contribute to refashioning marriage into something new, better, and less patriarchal. Opponents, of course, feared the hegemony of heterosexual marriage and argued that same-sex marriage could not and would not transform American society.

This essay looks back at this debate through the lens of the federal tax definition of marriage before and after the U.S. Supreme Court’s decisions in United States v. Windsor and Obergefell v. Hodges, which legalized same-sex marriage in the federal and state realms, respectively. Following the advent of marriage equality, the question is whether the promised transformative potential of same-sex marriage is being realized. In the realm of federal tax law— the situs of perhaps the most intimate and sustained connection that citizens have with government—the answer thus far is a resounding no.

After earlier opening the door to legally recognizing a broader array of relationships, the Internal Revenue Service (IRS) reversed course in the wake of Windsor and refused recognition to any relationship not denominated a marriage.3 At first, it seemed that the IRS was prodding states that had adopted civil union or domestic partnership regimes to recognize same-sex marriage—and this did, indeed, happen in the two years that separated the Windsor and Obergefell decisions. But after Obergefell, when every state was required to permit same-sex couples to marry, the IRS even more firmly closed the door to recognizing alternative relationship statuses, revealing its original move as reactionary and aimed at stymieing the transformative potential of same-sex marriage in this influential area of the law. This essay approaches the collision between faith in the ability to disrupt and overturn hierarchies and the reality of powerful and entrenched societal institutions such as heterosexual marriage as a case study of the complex relationship between legal and social change and of how, in keeping with Antonio Gramsci’s notion of hegemony, the dominant group in society manages agitation for change by subordinated groups while keeping its own privilege intact.