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The purpose of this article is to make the argument that I think needs to be made: DOMA, as applied to the Internal Revenue Code as a whole, is unconstitutional because it lacks a rational basis.

Let me explain, up front, that my constitutional argument about § 3 has nothing to do with whether Congress has the power to enact such legislation. Congress, after all, does have the power to levy taxes and control our borders. Thus, Congress should have the power to determine which married couples can file a joint return and which non-citizen spouses can be given preferential treatment for immigration purposes. Rather than a question of power, my constitutional focus is based on the Equal Protection Clause' and cases like Romer v. Evans which say that overly broad exclusions from equality suggest that the legislative action might be based on fear and animus rather than rationality. To be more specific, my argument is that DOMA, as applied to federal tax law, is simply so irrational that it can only be explained as being motivated by animus.

In Part I of this article, I will develop the substantive argument in greater detail. Part II of this article will outline the procedural difficulties that arise for taxpayers who wish to make constitutional arguments against tax statutes. Finally, however, the point of this focus on DOMA and the Internal Revenue Code is to show that DOMA is bad tax policy. Even if no court is willing to find DOMA unconstitutional, Congress should repeal DOMA, at least as applied to tax law. In Part III, I assume that we will one day have a world without DOMA. In that world, new tax policy issues will arise. I conclude that a repeal of DOMA is not a sufficient remedy for the numerous tax problems faced by same-sex committed couples, and I suggest that it is time for Congress to tackle these problems by asking why marriage matters in tax law and whether it should matter as much as it currently does. While this article does not propose a complete solution, it does raise questions that should be of interest to Congress as it faces a future unconstrained by DOMA.



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