The Interocitor

For purposes of federal law, the federal government can define marriage any way it wants to. Generally, it relies on state law for purposes of comity. The law is very clear on the fact that it won't do that for gay marriage, however, so any gay couple who files a tax return claiming to be married risks substantial penalties for filing a frivolous return.

Can you name an insstance where a state's licensed marriage has been held invalid for the purpose of federal taxes or benefits?

Besides, calling a suit in an unlitigated area "frivolous" is a tad harsh. For the feds to define marriage, in any way other than "what the state of residence decides", is to create federal rules in an area that has been reserved to the states.

Again, is there any case where this has been done before? I don't think that congressional acceptance of state constitutions (e.g. Utah) qualifies here, as that is a separate one-time power.

States have never had the power to determine matters of federal law, any more than the federal government has held this power over the states. Congress could, with the stroke of a pen, abolish marriage entirely as a concept under federal law. Or it could enact a law providing that every valid marriage will be recognized at the federal level under any circumstances. Or it can do what it did, and enact a federal law that largely defers to the states, but draws the line at gay marriage (or some other point). Or, if it wanted to, it could pass its own Family Code, which would invent a brand new meaning of "marriage" at the federal level, while having no effect on the states - unless, of course, the Legislature of a given state amends that state's law to accommodate federal marriages. It would be a very radical, non-traditional, and perhaps politically suicidal step for Congress to take, but but as long as the law only purports to affect federal laws, I don't see any constitutional problems with it. Do you?

I'm not sure if today's IRS forms make it crystal-clear that same-sex marriages don't count, but I trust that if there is any question, the IRS will take care of it by this time next year. Assuming that it has done so, no gay couple will be able to fill out a joint federal tax return with a reasonable, good faith view that they are "married" for purposes of federal law. Even if they don't, the law itself is clear enough on this point; ergo, any tax return that violates it can only be seen as frivolous - and punishable as such under the IRC.

Up to about 1999, the feds left the definition of marraige that they accepted for determining federal benefits solely to the states. If Tennessee, say, said you could get married at 14, that was no problem for the feds. If common law was in effect, fine, and if not, also fine. Back in the day, I suspect that wheverever interracial marriage was legal they accepted that too, even when the idea was unpopular.

As of DoMA, they've made a single exception: state laws that allow same-sex "marriages" are declared invalid for federal purposes. Your claim is that, since these ARE federal benefits, the feds can make whatever rule they want, and could, say, disallow common law or minor marriages if they chose to, so long as they did not force the states to change their regulation of marriage within the state.

You may be right that the feds can do this. You may also be wrong.

In singling out a class (even a newly created class), there is an obvious 14th amendment claim. There are also federalist claims that the feds have no right to regulate marital status in any way -- having not done so forever before -- and MUST accept state determinations or cease basing federal benefits on marital status. Additionally, there is an argument that federal benefit status is so important that denial of marital benefits to legally married persons represents a de facto regulation of state marriage laws.

Additionally, there is some question, given the structure of social security, whether it is a strict "federal benefit", or a return from a (forced) investment. Certainly gays are not exempted from contributing. Further, return of tax money is not a federal expediture in most people's minds, so the issue is also muddied here.

Perhaps filing a tax return, by itself, could be considered frivolous, since it is "against the law", but I doubt greatly that a suit against the IRS commissioner for refusing to allow such returns would be frivolous.