The Supreme Court is trying to decide whether my husband and I are married. A no-brainer, in my humble opinion. The next question—When did we get married?—is going to be trickier.
We ourselves can't remember exactly, for one thing. We've been together more than 15 years, and for most of those years, the anniversary that we celebrated was of our first date. New York state, where we live, didn't recognize out-of-state gay marriages until 2008 and didn't legalize gay marriages in-state until 2011. Once the law caught up to us, memorizing a new anniversary felt supernumerary, if not in a certain way disloyal. I suspect that as a practical matter many straights memorize their wedding date involuntarily, as they go through the fuss of planning for it. But we, taking full advantage of the privilege of marrying in middle age, opted for very little fuss. At the time, we had to go out of state in order to marry, and since it seemed onerous to transport our family and friends, the only attendees were a town official and my husband's father, who happens to live near the town in question. A couple of weeks later we did have a picnic for friends and family in Brooklyn. But who remembers the date of a picnic?
Fortunately, it's all written down somewhere. But there's a question of law here as well as a question of fact, and actual cash money may be involved.
When does the government think my husband and I got married? It's probably naive to expect a consistent and systematic answer. As of this writing, however, the federal government's answer is fairly clear: Not yet. This April 15, like every other that we've spent together, my husband and I are filing our federal taxes as if we were single.
New York state, on the other hand, does admit we're married. But to judge by the vicissitudes of its tax policy, it isn't entirely sure when our marriage took effect. (For the fact-checkers in the audience, let me concede at once that I am speaking loosely and rather metaphorically when I suggest that tax policy has a consciousness.) Between 2008 and 2011, gay residents of New York state who had been married in other jurisdictions were permitted to file in New York as married couples if they wanted to. But they weren't obliged to. It seemed that for tax purposes a gay marriage came into existence in New York only when a couple felt like declaring it.
If gay spouses sued each other for divorce in those years, the playful conditionality no doubt vanished abruptly from all definitions. Still, the open-mindedness about taxes was odd. It could be that the state's revenue department felt bashful about the paperwork that a gay couple would have had to go through, which was indeed Kafkaesque. My husband and I got married in 2010, and although we could have filed as a married couple for that fiscal year, we didn't, largely because I'm the sort of geek who does his own taxes and I wanted to keep the paperwork as simple as possible.
The reprieve was brief. Starting with fiscal year 2011, the Kafkaesque became mandatory. Married gay couples in New York now had to file as such, and in order to do so, each spouse in the couple first had to complete a federal tax return as if he were single. Next the couple completed a third federal tax return, based on the counterfactual premise that the federal government did recognize their marriage after all. Only then, using figures from the counterfactual federal "as if married" return, was the couple able to complete a state return. It was important to remember not to send the counterfactual federal return to the IRS; there seemed to be a fear that it would upset them.
That's the regime again this year. In point of fact, I'm wrong to call only one of the three federal returns counterfactual. All three of them are: It isn't true that my husband and I aren't married, and it isn't true that the federal government recognizes our marriage. Only the state return is honest. It's too bad David Foster Wallace didn't live long enough to devote a chapter of The Pale King to the subject.
When does the law think gays got married? is a question explicitly before the Supreme Court in United States vs. Windsor, one of the two gay-marriage cases it's considering. Edith Windsor married her wife in Toronto in 2007 and became a widow in 2009 while living in New York state, which was then in its intermediate period of recognizing out-of-state gay marriages but not allowing in-state ones. A straight widow wouldn't have had to pay estate taxes. The court has to decide whether Windsor should have, and if it rules in her favor, the federal government will be recognizing her 2007 wedding date.
The thing is, Windsor deserves an even earlier one. After all, she and her wife were together 40 years before they got married. Almost certainly they would have married sooner if they could have, and almost certainly the government is to blame for the delay. Windsor is fortunate in having been left an inheritance. But what if she hadn't been, and what if her late wife had been the primary breadwinner and had paid Social Security taxes all the years they were together? In that case, shouldn't Windsor be entitled to Social Security survivors benefits based on her late wife's income? And shouldn't the benefits be greater than the pittance that she would get if the Social Security Administration calculated them strictly on the basis of her wife's income between 2007 and 2009?
Recognizing Windsor's 2007 marriage, in other words, may not be enough. But though there's an injustice here, the remedy isn't clear. How could the Social Security Administration determine a hypothetical earlier start date for Windsor's marriage? Would it choose the date that Windsor and her wife first met? Would it choose the date they first moved in together? Would government bureaucrats devise a formula? Enter on line 24e the date you and your spouse first opened a joint checking account. Enter on line 24f the earliest Thanksgiving spent exclusively with in-laws. I'm kidding around, but there are serious questions of equity and social justice at stake. The wrong here is literally incalculable.
It's easy, however, to calculate the difference between the counterfactual returns that my husband and I have completed and the ones we have actually mailed to the IRS. Simple arithmetic shows that in 2011, we paid $5,675 more than we would have if the federal government had recognized our marriage, and in 2012, $4,250 more. (I benightedly write for a living and my husband, though he also writes, has a proper job; couples like us with a significant income disparity usually come in for a marriage bonus, not a penalty, when paying taxes.) There's something a little sordid about these dollar amounts. Whatever the cost of being gay in America may be, they don't correspond to it. But I find their perspicuity, however petty and inadequate, somewhat fascinating. Numbers are so definite, even when their meaning isn't.
After United States vs. Windsor is decided, I expect that my husband and I won't need to sue in order to have the differences refunded. I expect we'll just file amended tax returns. (Probably. I'm not a tax lawyer, so please don't take this essay as tax advice.) The process ought to be fairly easy, since the complete, correct forms are already sitting in manila folders in our basement—as they are in the basements of thousands of other gay couples in New York and other states that recognize gay marriage. I'll just have to white-out the words "AS IF," which I had scribbled in all caps at the top in order to prevent myself from accidentally on purpose mailing them.