A New Examination of an Old Question: Is it Constitutional to Tax Marriage?

Abstract

In 2015, the U.S. Supreme Court recognized the fundamental right to marry in Obergefell v. Hodges. At the same time, the tax code commonly taxes married couples at a higher effective tax rate than their unmarried counterparts. We examine the constitutionality of the penalty on marriage, critically reviewing the justification for the penalty accepted in Johnson v. U.S. in 1976. Our evaluation of the tax system suggests that the marriage tax penalty violates Due Process and may violate Equal Protection and the First Amendment for some taxpayers.

Does the Marriage Tax Differential Influence Same‐Sex Couples' Marriage Decisions?

“…Although the constitutionality of a penalty on marriage has been questioned (Yurko et al, 2020), the continuance of MTDs may be justified to some degree if the MTDs align with government interests, such as promoting marriage (Covert, 2014). At the very least, the tax system should not dissuade couples from marriage, which the U.S. Supreme Court recently reaffirmed as a fundamental right in 2015 in Obergefell .…”

“…Additionally, the U.S. Supreme Court rulings in Windsor and Obergefell v. Hodges , 576 U.S. 644 (2015) ( Obergefell ) reaffirmed the belief that marriage is a fundamental right (Yurko et al, 2020). All of our analyses indicate that the marriage rate of SSCs increased dramatically following Windsor , reflecting the enthusiasm in the LGTBQ+ community for the removal of this barrier to their fundamental right to marry.…”