Last week, the United States Supreme Court decided that federal laws that apply to married people apply to same-sex couples who are married in a state where same-sex marriage is legal. As a liberal person who supports equal rights, I’m supposed to rejoice in this great victory for equality and diversity.
In a way, I am glad. Making certain federal benefits available only to people whose permanent monogamous sexual partner is of the opposite sex was unfair to people who feel sexual attraction only to their own sex and therefore could never enter into a heterosexual marriage except in a half-hearted or deceptive kind of way. If marriage is linked to government benefits, those benefits should be available to all people who choose a married relationship.
If.
What bothers me about this court decision and nearly all the discussion of the issue in the past few years is that very few people ever seem to consider that If or to consider what it really means. This decision does not “make the benefits of marriage available to everybody,” as I’ve heard many people exclaim happily. It makes “the benefits of marriage” available to every person who
- is willing to commit to a relationship with one specific person as long as they both shall live
- is able to find a specific person with whom he/she is willing to make that commitment
- is able to get this person to agree to make this commitment
- is willing to accept losing a few rights, depending on the state in which they live, such as the right to press charges if sexually assaulted and the right to use science to prove paternity and various details of financial decision-making and property ownership
- is willing to accept being publicly perceived as the domestic partner, sexual partner, and love interest of his/her spouse
- is willing to accept that if the marriage ends, decisions about how to divide property and child custody will be made at least partly by strangers, in an expensive process.
It also makes “the benefits of marriage” available to every person who
- is willing to lie about his/her relationship with and commitment to another person in order to obtain said benefits.
In other words, it makes “the benefits of marriage” available to every person who is willing to engage in marriage. Fair enough, as far as it goes.
What bothers me about all this is that, in modern American society, marriage is understood mostly as a sexual relationship. Romantic, too, yes, but there’s a strong assumption that married people have sex with each other and are supposed to have sex only with each other, that the primary function of marriage is to draw the sexual property lines–and many Americans believe that sexual activity is morally acceptable only when married. The assumption that marriage is about sex has been very clear in the debate over same-sex marriage: It is because a gay male couple or a lesbian couple have sex differently than a male-female couple that people question whether their relationship meets the definition of marriage. For people who believe that only married sex is okay, allowing two men to marry each other is equivalent to saying gay sex is okay.
But if this is all about sex, why is it connected to these federal benefits? Social Security survivor benefits, health insurance, Earned Income Tax Credit, estate tax, retirement savings, Family and Medical Leave Act, immigration–none of these are about sex! They’re mostly about money. The only benefits even tangentially related to sex are those connected to children–and every single one of those gives adoptive parents the same rights as biological parents. Who gets taxed, how much you get taxed, how much money you get if something bad happens–why should any of those depend on whom you have sex with?!? This is a serious question. If you really think that makes sense after reading this entire article, I would like to hear from you.
The reason our laws about money are tied to marriage is that, in the era when these laws or their foundational principles were developed, women weren’t allowed to function like full adults. A husband deserved tax credit for supporting a wife, and a widow needed governmental help to survive on the money her husband left her because she wouldn’t be able to earn much. We aren’t in that era anymore. Women are economically equal under the law, many married women now earn more than their husbands, and although there is still a wage gap between men and women, it’s a lot less than it was a few decades ago.
However, it’s certainly true that there still are thousands of families in the United States in which a man earns all the money while a woman keeps house and cares for children. That man deserves credit for supporting people beyond himself. If he dies first, she’ll have trouble earning money because she’s been out of the job market for years and will likely have to start with a low-wage job, so she deserves some help–because her years of unpaid caring for people contributed to our society. That hasn’t stopped making sense for these families just because American families overall have become more diverse.
The thing is, there are many situations in which one adult might agree to pay all the living expenses of another adult, and none of these situations is necessarily connected to sex. (I’m going to use female and male pronouns just so you can follow which person is which–either person might be either gender.) She might be supporting him because
- He does household work and/or childcare that makes her career easier by reducing the demands on her time.
- He is going to school, creating art, trying to start a business, ministering to the needy, or otherwise spending his days doing something that might lead to income in the future but isn’t bringing in any money now, but that they’ve agreed is worthwhile.
- He is sick, injured, mentally or physically challenged, or elderly and isn’t able to work.
- He is willing to take a paying job, but he has been unable to get one.
- He simply does not like working for pay, and she is happy to take care of him.
Regardless of their reasons, one adult is supporting another, and I believe this choice deserves credit in our tax system because
- Caring for another person is a kind and generous thing to do, which our society should support.
- The supported person does not need welfare or other government benefits to survive. This reduces costs to society.
- The supported person is not taking a job, making that job available to another person. This is helpful, especially in a recession.
The adult who chooses to support another adult might be partly motivated by their lifelong pledge of sexual monogamy, or by their sexual relationship which allows for involvement with other people, or by their romantic love relationship which might not involve sex, or by their love for one another as family members who would never consider sexual involvement with each other, or by their friendship which involves no sexual attraction. Does it matter?
Why should two people who make a lifelong pledge of sexual monogamy have a different tax status than two people who have another type of relationship? Why should a married couple in which one spouse earns all the money have the same tax status as a married couple in which both spouses earn money and contribute equally to the family household? It just doesn’t make any sense to me. After all, taxes are about money, not about sex. You get tax credit for each of the children you support, regardless of the type of sexual relationship in which you created them or even if someone else’s sexual activity created them and you adopted them.
What would make sense is for the IRS to use the Head of Household filing status as the way for an adult taxpayer to claim credit for supporting any other adult–not just a biological or adopted close relative–who passes the support test. This would cover a spouse, an unmarried partner, a friend, whoever it is you choose to support for whatever reason. It wouldn’t make any difference whether you love them that way or you love them some other way. It wouldn’t matter if you have more than one such person, as long as you can prove your economic support of all of them. You would get the credit only in the year(s) you support the person. If you don’t support anyone other than yourself, you’d simply file your own individual tax return, regardless of whom you live with or whom you have sex with. The tax table could be half the size!
Immigration is a trickier issue. I understand why the government doesn’t want to allow every immigrant to bring in however many casual boyfriends and/or girlfriends he or she happens to have. On the other hand, the longstanding phenomenon of green card marriages makes it obvious that marriage is a means of immigration that’s easily abused. I am no expert on immigration! All I have to say about it at this point is that I’m glad it is now possible for same-sex couples to immigrate together rather than choose between being separated or having a sham marriage to someone of the other sex.
My partner Daniel and I have been a happily unmarried heterosexual couple for 19 years now. We’re comfortable with our rights under the laws and the taxes we’ve paid. But we can’t wholeheartedly celebrate the extension of special rights for married people to same-sex married people. Equality and nondiscrimination are good–but this decision only makes married couples equal to other married couples and reduces discrimination between different types of married couples. It does nothing at all to chip away at the idea that your sexual relationship ought to be registered with the government so that you can be treated differently. We oppose that idea, and we always will.
The Earthling's Handbook 
Hi, ‘Becca. Thank you for a very thoughtful and thought provoking article. I have a couple of thoughts to share, keeping in mind that I’m no scholar on this topic, just speaking from my own observations.
First, it seems to me that the primary value of marriage in contemporary society is as a shortcut for making a whole bundle of agreements (both of the legal and the informal kind) between the couple, their families, and strangers, including but not limited to governments. If you want all (or even most) of those agreements to apply to your relationship, then it saves a ton of time and effort over making them all individually. If you don’t want the bundle (or are denied eligibility for it), you can still make the agreements piecemeal, but you miss out on the convenience. So regardless of whether you want that for your own relationship, it’s a nice thing for other people to have the option.
Second, just because a segment of society thinks marriage is about sex doesn’t mean it is. They don’t get to define it. There are people who say that the Bible is about sex, or that neo-paganism is about sex, or that rape is about sex, or that the flowers on album covers spell out the word “sex.” Clearly they have issues. The definition of marriage has changed radically throughout history, but it’s consistently been about a public commitment. Government has an interest in encouraging people to make public commitments because (in theory at least) doing so promotes social stability… so there are tax incentives for buying property and getting married and having kids and donating large sums to charity. In order to promote these commitments, government has to define them. For the most part the legal definition of marriage in the US has not specified whether or not a married couple has or should have sex (or children) with each other either after or before marriage… notable exceptions include blood tests in states where incest is a concern; these effectively say “these people should not have biological children together, so they can’t get married.” Since those are the exceptions and not the rule, I think you’re exaggerating a little when you say that marriage equality is “the idea that your sexual relationship ought to be registered with the government.” There is certainly an assumption that a married couple will have sex at some point, just as there’s an assumption that if you buy a house you will live in it at some point, but as I understand it it’s not legally binding, except maybe as grounds for divorce in states where you have to give grounds. On the contrary, (for better or worse) a marital contract has historically told the authorities to go away and not get involved in what may or may not be going on between the couple.
That said, I agree that there’s a lot of untapped potential in the “head of household” filing status. It’s never been clear to me what that’s supposed to be for or what it does! (I just read up on it. Not intuitive.) It would certainly simplify things if that were generalized… but then a lot of couples would have to decide which one of them is the head! 🙂
Thanks again. See you soon!
Yes, marriage is similar to buying an options package on a car: If you want all those things, it’s a good deal. I’d be more comfortable if every state required people applying for a marriage license to read a pamphlet that briefly lists exactly what they’re signing up for.
I don’t think the perception that marriage is primarily about sex is something believed only by “a segment” of the population that “has issues.” It’s a widespread idea that certainly has been prominent in the debate over same-sex marriage, as I said. If it were simply true that “Government has an interest in encouraging people to make public commitments,” and most Americans believed that marriage was about that, there would be much less debate over, “Is it even possible to call a relationship between two women a marriage?” Thirteen states require a marriage to be consummated in order to be valid. (That’s not the most reliable-looking source, so here’s a Legal Aid page indicating that nonconsummation is grounds for annulment in Ohio–since annulment means not just ending a marriage but legally declaring that it was never a real marriage, clearly the State of Ohio believes sex is essential to marriage.) It is true that, at least within the United States so far as I’m aware, no government entity checks up on whether you’re having sex and nullifies your marriage if you aren’t–consummation requirements only come into play if one spouse is dissatisfied with the marriage.
I didn’t say that marriage equality is “the idea that your sexual relationship ought to be registered with the government.” I said that this idea is one that already exists in American society, that is not at all modified by marriage equality i.e. granting the option to marry to same-sex couples.
Well, yes and no. Historically, and to a lesser extent now, authorities have been less likely to investigate violence or other abuse between spouses than between people connected in other ways. But if a married couple wants to split up, they have to get the authorities either to moderate their divorce or (in states that allow it–see link to Ohio, above) to approve their dissolution agreement–whereas an unmarried couple won’t get this intervention unless we ask for it; the government doesn’t know or care whether we’ve split up, except coincidentally as the addresses on our individual documents change. I’d like to know what kind of government involvement you’re thinking of.
Head of Household filing status actually can be used to claim one’s unmarried partner as a dependent, if you read the fine print. Daniel did this when Nicholas was a baby, I was working only part-time, and Daniel’s income was a lot more than mine so he was paying all the home-related bills, while my job paid only for child care and health insurance. It was funny because I was Daniel’s dependent, but Nicholas was my dependent because I had the job that offered a Child Care Flexible Spending Account–that’s why we split the bills the way we did. We learned about this option from a friend who was Head of Household while her lesbian partner was a full-time student.
Is the option of Head of Household open to all states? I am still looking for work and it would be nice if my husband could claim me in that manner.
As for your article I have one question: When you came up with the hypotheticals you say don’t pertain to sex, are these couples romantically involved? If they are romantically involved, then I see no problem here. They could marry and get the benefits they need to start that business or continue school, or volunteer for the non-prophet.
But if they are not romantically involved, any two people could come together and get free money simply by claiming they take care of another person. Take my last roommate. I was having a hard time landing a full time job so she was paying the rent and for food while I took care of the cable and utilities. She would never do this, but scould she claim me as a dependent? If she could, then so can others. And that would mean many people would be lazing around and looking hard for work because they know there roomies could cover it.
Or say one roommate works full time and the other works part time. They both make enough to keep the apartment and life that they have. But to get a little extra dough the full-timer could then claim the part-timer as a dependent and then what? The government just shelves out the cash?
My other thought about this is Prenubs. I am sure before marriage you and your soon-to-be spouse could hammer out exactly what would happen do your future children if you divorced. Even though I didn’t do this, this might be a good idea because it would force the couple to talk about important issues they care about.
Your husband can claim you because you are married. That makes it easy.
People who are romantically involved but not interested in sex can get married, sure. But a person who has agreed to support a friend who is not her romantic partner may not want to marry that friend because she wants to be able to date other people. If you were supporting your brother, you wouldn’t be allowed to marry him even if you wanted to. For people who are polyamorous (in love with more than one person, or at least open to that possibility) marriage means choosing one relationship for the entire package deal of priveleges and responsibilities–even if their financial situation changes and the partner who needs to be supported is different from year to year.
Head of Household filing status is not financially equivalent to married filing status. However, it is also not a really easy thing to do. You can’t claim any random person as your dependent; you have to prove that you paid all the essential expenses for your shared home, and you have to give the person’s Social Security number so that the IRS can check that your dependent didn’t earn more than a certain amount. So it isn’t “free money simply by claiming that they take care of another person”; it’s a reduction ($3,800 last year) in your taxable income so that you pay less tax (which may result in a refund), but you have to prove you qualify.
If your roommate had been paying all of your household expenses (utilities too) and you had little to no income, I think she would deserve credit for taking care of you. Similarly, if it was your dad providing room and board for you while you were unemployed, I think he deserves that tax deduction. In either case, the government would let them keep $3,800 because they are preventing that much (or more) needing to be spent on you in the form of welfare, homeless shelter, etc. Why should they have to be romantically involved with you to get credit for that?
Your argument that allowing people to claim anyone they support as a dependent would lead to people lazing around not looking for work, can just as easily apply to marriage. Why should a man bother finding a job if he is married to a lawyer with a good salary? He could just sit home eating marshmallows and watching TV! Some married people do this. Some unmarried people do, too. But they can only do it as long as the supporting person puts up with it. Most roommates will NOT pay more than their share for an extended period while they are working and another roommate isn’t, if there’s no good reason for it. $3,800 does not cover an extra bedroom’s worth of rent and an extra person’s worth of groceries and hot showers, in most parts of the country, so it’s not like the Head of Household is making a profit.
To be clear, I’m not arguing that your husband should not get credit for supporting you while you look for work, but that anyone who supports you should get the same credit.
Prenuptial agreements can prevent a lot of arguments and legal wrangling, but they do not keep the government’s nose out of your business; no matter how clear and thorough your agreement, you still have to get your divorce approved by a court before you are allowed to stop being married. And a prenup doesn’t make any difference in your tax status while you’re married.
Oh, wait, I said it wrong–it’s not that the government would let your roommate keep $3,800 if she filed as Head of Household; it would let her keep THE INCOME TAX ON $3,800, i.e. be taxed as if she had earned $3,800 less and be taxed at the Head of Household rate instead of the Single rate. Here, I’ll look up an example in the actual IRS tax table
Click to access i1040tt.pdf
Say your roommate’s taxable income was $40,000. If she files as Single, her tax is $6,036.
If she files as Head of Household and claims you as a dependent, she can deduct $3,800, bringing her taxable income down to $36,200, and her tax is $4,814.
So the government lets her keep (or refunds her) $1,222 toward your expenses. I don’t know what your rent was, but in my cheapest apartment 18 years ago, that would’ve paid my share of the rent for only 8 months, plus a month’s worth of ramen and Koolaid.
Your husband, by being married to you, can use the Married Filing Jointly column of the tax table. He could work the exact same job as your roommate, earn the exact same money, yet his tax is only $5,134–and if he can claim you as a dependent, it’s $4,564.
So because you’re married, he gets an extra $250 a year for supporting you. Why?
Ah, now I understand you. Thanks for clarifying. My husband and any other husbands can get that extra 250 because we made a pledge to try and be together until the end. Married people GET that extra cash because of the commitment we’re making to each other. It’s not about who we have sex with, it’s about who plan to be with for the rest of our lives. Plans don’t always work out, but we plan (and hope) they do.
But roommates and other types of roommate-like relationships don’t last forever. No one is saying they’ll help their roommate until they die because…no one knows IF they’ll be roommates that long. And no one is trying to claim they will be roommates forever either.
I can see your tax idea working if, for instance, you have a sibling, other family member, or close family friend you KNOW will need help for a long time. That seems fine. But lets take the business example you wrote.
Say two college roommates get a place together. One has a great job, the other has a great business plan. The roommate paying for everything gets the tax break while the other roommate cooks, cleans, and work on their business idea. A few months pass and the idea is now a reality-one that cashes in BIG. The roommate does not need to be declared as a dependent and pays his way until he can pay for his own place. What then? The first working roommate just stops getting the tax break? How would that happen? What would they have to put into motion to be sure they’ll be able to deduct that 3,800 from their yearly income?
Or say the business plan failed like a rock trying to swim? Would the working roommate just keep filing for deduction indefinitely until the other one got work? I can see this working, maybe.
I also kinda agree that it sucks to have lawyers and other people involved in their divorce. It would be nice if people could just say “Well, we gave it our best shot.” But how many would be that kind? When you break up after a long marriage your head is not clear. You have all these mixed emotions. I mean, it is often said you should never talk to about your last job if you just got fired because you’re still raw. You would not be removed enough from the situation to think clearly and I think the same rule implies to divorce.
Yes, there are people who can part on good terms, but how many really? And when you have a child that just compounds things. Now, Robert and I don’t have kids yet so I don’t know from experience what it would be like. You may have better insight into this then I do. But..back to my point.
If divorce muddles the emotions of a childless couple then a couple WITH a child would only makes things worse and I think having a third party listen in might be a good idea. It gives them a chance to look at angles they never thought of.
Like this example taken from a TV show. A man and women dated. The man, at the time, was not fond of kids and was quite vocal about it. The women ends up pregnant and decides to break it off and raise the child herself. The child, years later, wants to know about her father and finds him without her mother knowing. They bond, mothers fine with it, and then, child and mama have to move. Across the country. The changed man, now father, wants to continue contact. The mother, wanting to keep things simple, thinks only SHE should decide how to handle all contact and thus, father loses out. If there were no lawyers to step in or, they don’t to use them for sanity’s sake, then the child looses out on a father she grew to love because her mother failed to see that it’s not about her, it’s about her child.
I know this is TV so real life would not be exactly like that. But what if it was?
So, you support the idea (also mentioned in Ben’s comment above) that the government should encourage marriage financially because marriage means stability and stability is good for society. I understand the idea. Unfortunately, about half of marriages are NOT permanent, and some of these were never intended by the spouses to be permanent–they married to get health insurance, for an immigration visa, or whatever–while most are just people being jerks to one another and changing their minds, and then some are because of abuse or other horrible situations (so it’s sad that the victim faces huge legal fees and hassle on top of everything else). People can stay legally married while living in different states and never seeing each other and having totally separate finances, and they can still be Married Filing Separately for tax purposes and (at most income levels) get a tax break compared to being Single, and keep getting it forever. Some couples who no longer want to be together but don’t care to marry other people (they can cohabit if they want) do this for the tax break and to avoid going through divorce.
It’s because marriage does not have the permanence and stabilizing influence it’s “supposed to” have that I think it should not be a consideration in tax status.
I think you missed the fact that Head of Household status, and the dependent status of a person over 18 who is not your spouse, are things that must be proved EVERY YEAR that you claim them. The only way to be Head of Household for your roommate this year is for you to pay all the household bills this year and your roommate to earn little to no income this year. Next year is a whole new thing. You will lose that tax break if you can’t prove you deserve it in that year. In your hypothetical, if the working roommate is willing to keep on supporting the other indefinitely, yes, she can continue to get a tax break for her kindness and the money she is saving the taxpayers.
You have a good point about people being upset when they break up, but I have seen several unmarried cohabiting couples get through the process of dividing their stuff (after years together and buying shared possessions) without fighting much. I also know a couple who divorced just as amicably and are still friends who attend each other’s parties and are raising their kids together very well–but still had to pay thousands in legal fees; basically, that was their punishment for breaking the promise they had made. I also know many, many people who endured a divorce and years later are still bitter about the court making decisions they thought unfair. I actually can think of only one divorced person I know who was enthusiastic about what the court did for them–helping them figure out a specific plan for sharing custody of their daughter and covering her expenses.
Daniel and I are confident that if we ever split up, we’ll be able to work out how we divide things and how we share custody of Nicholas. While neither of us has ever been through a romantic breakup with shared property, we got through several dissolutions of housemate situations where we had to work out things like who would keep the refrigerator we’d bought jointly and how much that person would pay the others for their share of it, considering that it had depreciated in value since we bought it…and we also survived evicting a housemate who had lied to us for months, owed me $2,000, and had left her pets with us. Although that was an extremely upsetting and stressful situation, and we were really really mad at her, we were able to work it out. We did get the court involved trying to collect the debt, but we didn’t need court moderation for anything else; therefore, we didn’t have it. So we believe that if we break up, we should have the right to keep third parties out of the discussion unless we NEED their help.
Your TV scenario is the kind of thing that does happen in real life. If the couple had been married but divorced during the pregnancy, the outcome could be EXACTLY THE SAME except that the man would be forced to pay child support for 18 years; the judge likely would not grant him visitation rights if he expressed his disinterest in the kid. Later, after the father and child had met, they would be every bit as subject to the mother’s decisions, unless the father took the case to court. His change of heart about the kid would not lead to automatic court involvement just because he was once married to the kid’s mother.