DOMA and the Internal Revenue Code

28 Pages Posted: 6 Mar 2009 Last revised: 1 May 2011

See all articles by Patricia A. Cain

Patricia A. Cain

Santa Clara University - School of Law

Date Written: March 6, 2009


The Defense of Marriage Act (DOMA) prohibits the recognition of same-sex marriages for any purpose under federal tax law. The primary justification for this rule is that tax benefits should be preserved for opposite-sex married couples. This article points out the absurdity of such a rule, given that tax law is not intended to privilege married couples, but instead is intended to measure their taxable income fairly on the basis of their status as related parties. Because the justification fails, DOMA as applied to federal tax law is unconstitutional.

Keywords: taxation, same-sex couples, gay and lesbian, sexuality, Defense of Marriage Act, DOMA

Suggested Citation

Cain, Patricia A., DOMA and the Internal Revenue Code (March 6, 2009). Chicago-Kent Law Review, Forthcoming, Santa Clara Univ. Legal Studies Research Paper No. 09-09, Available at SSRN:

Patricia A. Cain (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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