Two New Essays on Post-Windsor Choice-of-Law Questions

The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.

First is DOMA’s Ghost, an essay by Brad Greenberg on copyright reversionary interests. The Copyright Act is one of the few federal statutes that contains an explicit marital choice-of-law rule — one that looks to the author’s domicile at the time of his/her death.

Greenberg notes that this rule is inconsistent with the Obama Administration’s general approach to the post-DOMA choice-of-law problem, which is to use the state of celebration wherever possible. He also argues that it would be better to have a rule whose scope would be known at the time of authorship (like the place-of-celebration rule). He suggests statutory reform. While we’re at it, I’d suggest statutory reform of the social-security choice of law rule. Even better would be if Congress would just propose a uniform marital choice-of-law standard for federal law generally . . .

Second is The Moonscape of Tax Equality, by Anthony Infanti, a paper on post-DOMA tax issues. Tax marital law is complicated, and attentive readers will recall that I posted some (partly skeptical) thoughts about the IRS’s marital choice of law guidance, which says that marriages will be recognized “as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex,” regardless of where they move later. Infanti also has some criticisms, that overlap partly (but not entirely) with mine.

— For one thing, Infanti worries that the IRS guidance is vague about so-called “evasive” marriages — marriages where the couple lives in an anti-same-sex marriage state but travels to a permissive state to get married. He says “The IRS guidance does not even acknowledge—much less address—this category of marriages.”

I think his criticism is about half-right. It seems to me that the IRS guidance pretty clearly does recognize evasive marriages. Unless the marrying state itself has an anti-evasion statute (which, last I checked, most same-sex-marriage states don’t), then even an “evasive” marriage satisfies the law of the marrying state, and that’s what the IRS says matters. At the same time, Infanti is right that the policy rationale that the IRS gives for its ruling (the virtue of having a rule that locks your marital status into place) doesn’t apply to evasive marriages.

— Infanti also criticizes the IRS for failing to cover civil unions. He sees this as a form-over-substance issue:

If any area of federal law were to recognize domestic partnerships and civil unions as marriages, one would expect it to be tax law because “[t]he principle of looking through form to substance . . . is the cornerstone of sound taxation.” Looking to substance rather than to form, domestic partnerships and civil unions that are marriages all but in name should be treated as marriages for federal tax purposes.

He also notes that the IRS’s rejection of civil unions contains “no legal analysis to support its positions at all.”

Again, I half-agree. As readers may again recall, I think there’s a quite good argument that civil unions are entitled to federal recognition as marriage. But contrary to Infanti, I don’t think that’s because “substance” trumps “form.” As a formal matter, parties to a civil union are spouses, and the unions themselves are arguably marriages. And if nothing else, the canon of constitutional avoidance might further cut in favor of recognition.

In any event, I also agree with Infanti that the IRS’s lack of any analysis of this problem is troubling, and could make it hard for the IRS to defend the civil-union exclusion in court.

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