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Defense of Marriage Act loses a defender

The Defense of Marriage Act, the 1996 law under which the federal government -- including the IRS in processing tax returns -- only recognizes as legal marriages those between a man and a woman, has produced a couple of splits of its own.

King & Spalding, the law firm hired by Republicans to defend the federal government's ban on recognizing same-sex marriages, withdrew from the case Monday. That decision then prompted the lead counsel for the case, Paul D. Clement, to resign from the firm.

Clement, who also served as solicitor general under President George W. Bush, said he will continue to defend the constitutionality of the Defense of Marriage Act (DOMA) as a partner at Bancroft PLLC "out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters."

This is just the latest unexpected turn in the road taking us to and beyond the controversial law.

Headed to court: Around a dozen lawsuits challenging the law are pending. Normally the U.S. Attorney General would be in charge of defending the federal government's position on a law.

But in February, after the Obama Administration determined the law was unconstitutional, AG Eric Holder is no longer in the position of arguing for DOMA.

So the job of defending the marriage act fell to Congress.

Last week Republicans, who now control the U.S. House of Representatives, announced the selection of Clement as their counsel.

Now the lawmakers will have to get to know their new law firm.

Filing under the current law: While the court battles continue, couples whose marriages are recognized by their states must continue to follow U.S. law when it comes to such matters as filing taxes.

That means that they can't make the usual marital filing status choice of filing their federal 1040s jointly or separately.

Instead, the spouses in same-sex marriages must send their returns to the IRS as single or head-of-household taxpayers where dependents are involved.

Ask me no questions…: That's led to some, shall we say, creative filing decisions.

Some couples reportedly have filed jointly, taking their chances that the IRS will not discover that both partners are of the same sex since nowhere on a tax return does the tax agency ask for a a filer's gender.

One group doesn't expressly advocate that folks break the law of the land, but it does urge same-sex husbands and wives to at least Refuse to Lie and remind the IRS that they are indeed legally married under their states' statutes.


The Refuse to Lie name and call to action come from the statement that all taxpayers swear to when they sign their federal returns:

"Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete."

Refuse to Lie suggests actions as simple as annotating the single-status choice on federal returns to attaching a statement to the returns to filing a preemptive claim (Form 483, Claim for Refund and Request for Abatement) for any possible refund the same-sax couple might be due if the law is eventually struck down by the courts.

Regardless of your personal position on the Defense of Marriage Act, it will be very interesting to watch what happens in both courtrooms and at the IRS.

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Peter J Reilly

Ironically by not just repealing Section 3 of DOMA Congress gives same sex married couples a reasonable basis to file as either married or single. http://riles52.blogspot.com/2011/03/congress-provides-subsidy-to-gay.html There is a perfectly good conservative argument for repeal (states rights).

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