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Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, N.C.L. Rev. Addendum (forthcoming, 2014), available at SSRN.

Gay marriage opponents love to fear monger about the slippery slope of extending marriage beyond the legal union between one man and one woman. They prophesy that if we allow marriage between two men or two women, we will descend into a Gomorrah of incest, adultery, polygamy, and animal love. In his essay, Big (Gay) Love: Has the IRS Legalized Polygamy?, Anthony Infanti makes subversive use of this repugnant meme to advance his view that tax results should not depend on marriage in the first place.

Infanti’s argument focuses on an analysis of Revenue Ruling 2013-17 (the Ruling), which recognizes same-sex marriages for federal tax purposes. Issued in 2013, after the U.S. Supreme Court invalidated section three of the federal Defense of Marriage Act, the Ruling announces the IRS’s adoption of a general interpretive rule that “for Federal tax purposes … recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” Infanti interprets the Ruling to apply to a limited subset of same-sex marriages, in contrast to what he calls the “alternative interpretation” of the Ruling, which reads the Ruling more expansively to cover a larger number of same-sex marriages. Infanti claims that under alternative interpretation of the Ruling, the IRS would also have to recognize the validity of plural marriages.

The crux of the difference between Infanti’s interpretation of the Ruling and the alternative interpretation relates to the treatment of two categories of same-sex marriage, migratory marriage and evasive marriage. A migratory marriage is one in which a couple lives and marries in one state and later moves to another. An evasive marriage is one in which a couple travels to and marries in another state in order to evade a marriage prohibition in their home state. (Infanti identifies two additional categories of same-sex marriage, visitor marriage and extraterritorial marriage, but these are peripheral to his argument.)

Infanti argues the IRS intended in the Ruling to recognize the validity of migratory marriages but not evasive marriages. He reasons that because the Ruling recognizes the validity of same-sex marriages “valid in the state where . . . entered into,” it does not extend to evasive marriages that are invalid under choice-of-law rules. (An evasive marriage is invalid under choice-of-law rules if a court defers to the couple’s state of domicile to determine whether a marriage is valid and finds that the marriage violates a strong public policy of the domicile state.) The alternative interpretation, espoused by Professors Patricia Cain and Will Baude, among others, is that the Ruling recognizes the validity of both migratory and evasive marriages.

Infanti argues that if the alternative interpretation is correct, then the IRS would also have to recognize plural marriages. To show this, Infanti develops a hypothetical involving a same-sex couple, A and B, domiciled in State X, who enter into an evasive marriage—that is, in order to evade State X’s prohibition on same-sex marriage, they travel to and marry in State Y and then return home to State X. Under the alternative interpretation of the Ruling, the IRS would recognize the marriage for federal tax purposes. However, under choice-of-law principles, if State X has a strong public policy against same-sex marriage, the marriage would be invalid for state law purposes. The marriage would be a nullity for state law purposes, which means that A and B could then enter into marriages with other people that are valid under state law. These other marriages would also have to be recognized as valid by the IRS, creating the possibility that the IRS would recognize plural marriages for federal tax purposes.

Provocative title notwithstanding, Infanti’s argument is a reductio ad absurdum: He does not believe the IRS actually intended to recognize plural marriages for tax purposes, and he thinks the alternative interpretation of Ruling is defective on the grounds that it is implausible, inadvisable, and would create a federal tax law of marriage. Nor does Infanti aim to stake out a position on whether plural marriages ought to be recognized under state or federal law. Rather, his argument is intended to illustrate the legal uncertainty and ambiguity that continue to plague same-sex couples even in a context where the IRS purports to provide certainty and clarity.

Infanti is a leading critical tax theorist who has challenged orthodoxies on subjects ranging from tax equity to international development norms to the definition of the family. In this essay and the prior work on which it builds, he demonstrates he is an equal-opportunity tax crit: He challenges the mainstream view of progressive scholars and LGBT activists who advocate for extending the privilege of conventional marriage to same-sex couples. Infanti argues that achieving equality between same-sex couples and heterosexual married couples is an elusive, perhaps unattainable goal. Moreover, he believes the goal of equal privilege to be misguided because it disregards the unequal treatment of other family formations. Infanti instead advocates for a tax system based on individual filing that recognizes all economically interdependent relationships. For readers familiar with Infanti’s scholarship, Big (Gay) Love is a terrific addition to his body of work; for new readers, it is a portal into Infanti’s critical sensibility. Either way, I highly recommend it.

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Cite as: Lily Kahng, Next Up, Incest, JOTWELL (September 17, 2014) (reviewing Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, N.C.L. Rev. Addendum (forthcoming, 2014), available at SSRN),