Supreme Court Upholds Same-Sex Marriage as a Tax

Less than a week after hearing oral arguments on the constitutionality of the Defense of Marriage Act (DOMA) and California’s Proposition 8, the U.S. Supreme Court stunned observers today with its unexpected ruling that gay marriage is constitutionally permissible as a tax.

The opinion, authored by Chief Justice John Roberts, rejected federalism and equal protection arguments made by both sides, as well as policy arguments made by the Tax Foundation, and instead zeroed in on the federal taxing power:

There are taxes and there are penalties. Penalties are prohibitory financial punishments, involving a finding of criminal guilt, and subject to prosecutorial enforcement.

None of these things describe marriage, including same-sex marriage. Because same-sex marriage is not a penalty, it may reasonably be characterized as a tax.

Four justices dissented from the conclusion, while four others stated their preference for upholding same-sex marriage on equal protection and federalism grounds. Only Roberts focused squarely on the taxing power as the basis for upholding the same-sex marriage, citing his health care decision from last June. We analyzed that decision here.

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