Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for June, 2013

OPM Moves Quickly On Spousal Benefits For Federal Employees and Retires

Jim Burroway

June 28th, 2013

The Office of Personnel Management — think of them as the HR department for the entire U.S. government — has moved quickly in the wake of Wednesday Supreme Court decision striking down the Defense of Marriage Act. In a memorandum to executive department and agency heads, OPM acting director Elaine Kaplan has announced that the government “will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex.”

The memo indicates that additional information will be forthcoming, but effective immediately, employees and retirees can obtain health insurance, life insurance, Dental and Vision Insurance, Long-Term Care Insurance, and Flexible Spending Accounts (FSA) to cover their married spouses, and step-children. Most of those benefits are also available to spouses of Federal retirees as well. Retirees can also claim a survivorship for their married spouses, although, as is already the case with opposite-sex married spouses, a survivorship option can result in a reduction in their monthly pension. The OPM memo says that additional guidance will be forthcoming on that option, as well as on other benefits.

OPM has confirmed to BuzzFeed’s Chris Geidner that the marriage benefits doesn’t depend on the state in which the employee or retiree resides:

Additionally, the memorandum states at several points that the changes apply to “all legally married same-sex spouses,” which an OPM spokesman confirmed includes couples who are legally married in one state but live in a state that does not recognize the marriage.

“Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,” Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon.

House gives gay Congressmen special rights

Timothy Kincaid

May 5th, 2011

One of the ironies of anti-gay antagonism is that it sometimes results in gay people being removed from provisions that are designed to eliminate abuse. Sometimes anti-gays are so determined to deny that gay people have real lives and real relationships that they are willing to allow gay couples (which don’t really exist, you see) to get away with behavior that would otherwise be banned.

From Roll Call

The House Ethics Committee has overhauled its instruction manual for completing annual Congressional financial disclosure forms, sidestepping a proposed provision that would have for the first time requested the spousal information of same-sex couples.

Under the heading “Same-Sex Marriages,” the draft version stated that “In 2009, there were a total of four states which issued marriage licenses to same-sex couples: Massachusetts, Connecticut, Iowa and Vermont. (New Hampshire and the District of Columbia began issuing such licenses effective in 2010). If you and your spouse were issued a marriage license by any of these states and were subsequently legally married in that state, you must disclose all required spousal information on your Financial Disclosure Statement.” The new instruction manual deleted this section entirely.

Members of Congress and certain staffers are required by federal law to report income, investments and liabilities. The source of spousal earned income — though not the amount — is requested on the annual disclosure form, and assets owned by the spouse must also be disclosed.

So legally married same-sex couples have special rights in Congress, the right to ignore disclosure laws.

Ironically, back in 2008 conservative Republicans were screaming their heads off about how Barney Frank’s relationship with a Fannie May executive was a conflict of interest. And they were right.

But now that it comes to applying the rules that Frank must comply with, they’re back to saying that his relationships are inconsequential and should not be treated like real heterosexual relationships.

Make up your mind, boys, you can’t have it both ways.

Tax time and total confusion

Timothy Kincaid

April 7th, 2011

It is tax time and across the country individuals and families are finalizing their income tax returns and trying to makes heads or tails out of Alternative Minimum Tax and Capital Loss Limitations and Net Operating Loss Carrybacks and Itemized Deduction Phase Outs and a whole host of other intricacies of adherence to the federal tax code.

But for same-sex couples, the confusion starts with Box One, filing status. What is the filing status of a same-sex legally married couple?

Well, that depends. There simply isn’t a clear answer.

Due to DOMA, the Defense of Marriage Act, the federal government currently takes the position that you are roommates – legal strangers – who share residency but not lives. Theoretically, one might expect to see rental income or gift tax or other such items on returns, though, to their credit, the IRS does not apply such rigidity to either gay or straight cohabiting couples.

So the final answer (so far) is that you file as single (or as head-of-household if you qualify). But that doesn’t necessarily mean that you report your income as though you were single.

Because the IRS, while not recognizing your marriage, may recognize your legal right to your spouse’s income. And that depends on where you live.

If your state has community property laws, then you have a claim on half of the income of your heterosexual spouse. But some states have also applied community property laws to same-sex relationships, whether called marriages, civil unions, or domestic partnerships. In California, for example, one half of a same-sex couple has a legal claim on half of her partner’s income whether she is in a domestic partnership or got married in the 2008 window.

And the IRS is now taking the position that if you have a claim on it, you need to report it. So in California, for example, each half of the partnership would claim half of the partnership’s community property income (being careful to exclude income that does not fall into this category) and prepare income tax returns as “Single” to report their share. In Massachusetts, not a community property state, the same couple would segregate their income and prepare “Single” income tax returns reflecting only their own income.

All of which is thrown out the window for state return preparation. Each state defines who is or who is not married and requires those couples which they recognize as married to file as “Married”. Some, like California, require that domestic partnerships or civil unions prepare “Married” returns.

But that isn’t the extent of it. Most states don’t duplicate the entire return calculation process but instead start with the federal numbers and make adjustments. So while you cannot file a joint federal return, in order for the state to have a starting point, you must prepare a joint federal return so as to come up with the numbers you would report were you allowed to do so.

Thus, depending on where you live, your income tax return for the state could be filed with a different status than your federal income tax return, your state return could be based on a federal return which will never be filed, and your federal return may or may not recognize a portion of your income as jointly earned though reported as though single.

Confused? You should be.

So now a group of married same-sex couples have started a campaign to Refuse To Lie about their marriage status. As they are legally married in the eyes of their state, they find it offensive – legally and morally – to be forced to say that they are not. And just as there is an inherent indignity to being forced to annually tick a box labeled “I’m inferior”, so too is in unconscionable to force citizens to tick a box that is premised in that concept. (New York Times)

“More people are refusing to lie on those forms, even though the government is telling them to,” said Nadine Smith, executive director of the gay, lesbian, bisexual and transgender advocacy group Equality Florida, who plans on filing a joint return with her wife, Andrea. “It would be both dishonest and deeply humiliating to now disavow each other or our marriage and declare ourselves single on our tax form.”

This is not a new concept. I’ve heard of tax rebels who have, for years, flouted the tax code and took a stand for equality. Such efforts tend to be ineffective and costly. The IRS is not a compassionate or forgiving institution.

But this year may be different. The Defense of Marriage Act has been declared to be in violation of the US Constitution, the Justice Department has determined it to be indefensible, and there is no presumption that the SCOTUS will uphold the law. So it is not unreasonable to act accordingly (though the campaign notes that you must act in a manner that is in conformity with the IRS’s procedures for challenging positions, not haphazardly).

My best guess is that if and when DOMA is overturned, it will not be retroactive. In other words, for 2010 you will most likely be required to file as strangers even if DOMA is tossed out. But those who challenge the provision probably will not face punitive action or be accused of tax fraud.

Should you decide to prepare your taxes using Married status, the smartest action would be to place the difference in taxes in a trust account to be released upon determination of the DOMA challenges and be very very careful. And don’t expect your tax accountant to go along with you; accountants are increasingly being held liable for their client’s positions.

But there are other options that I find both safe and smart.

The “Refuse to Lie” Web site warns same-sex couples of the risks of filing jointly, and explains different options to both adhere to the law while expressing that they disagree with it. One way to do that would be to put an asterisk by the “single” box, and then indicate at the bottom of the tax form that you are “only single under DOMA.” Another option, the site says, is to attach a note with a similar message.

They can’t punish you for “providing a full disclosure” and such a stand can give you something to talk about around the water cooler. (And never underestimate the world-changing power of water-cooler conversation)

A troubling expansion of federal powers

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

May 18th, 2010

It is not often that I complain about a Supreme Court decision in which Justices Scalia and Thomas are the sole objectors. These men are not ones whom I consider to be the greatest defenders of civil liberties.

But one such decision was announced this week (NY Times)

In a broad endorsement of federal power, the Supreme Court on Monday ruled that Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.

The federal law at issue in the case allows the government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves. If the government is able to prove all of this to a judge by “clear and convincing” evidence — a heightened standard, but short of “beyond a reasonable doubt” — it may hold such prisoners until they are no longer dangerous or a state assumes responsibility for them.

These individuals are not being “punished” but rather incarcerated for the greater good. And I tend to view “greater good” decisions from the perspective of a member of a minority community who has been seen to be so threatening that persecution, incarceration, aversion therapy, and even lobotomies were justified by the greater good.

The hardened criminal in this case, U.S. v. Comstock, is Graydon Comstock, a threat to society who is so frightening that the Federal Government is certain that he will commit his crime again if he is not held against his will. He will repeat his heinous actions, if not stopped!

Graydon Comstock was convicted of ‘receiving child pornography’ for which he was sentenced to 37 months. And to make certain that Comstock never ever ‘receives child pornography’ again, that sentencing has been extended to indefinite at the whim of the federal government.

Civil incarceration is not without precedent. States have long held that they have the right, even the obligation, to protect their citizens from those who cannot control their own behaviors. The federal role has traditionally been to ensure that states did not exceed their constitutional bounds, a role that now seems to be unfilled.

But frankly, I am troubled by the idea of incarcerating individuals for the crime of “being”, whether it is by state or federal government. I am somewhat solaced by the limitation of the law to those who are mentally incapacitated but I still remain discontented by this decision. It seems to me to have less to do with protecting society and more to do with the justification for the expansion of powers.

And I can’t help but wonder, if Comstock had not been convicted of receiving illegal images, would his danger to society be any different? Would he be any more or any less of a public threat?

Because if he was equally a threat, why then cannot the federal government just incarcerate for any length of time any person who it deems threatening for any reason? Oh, provided of course that a judge signs off.

And if this illegal action is what makes his such a threat, why then was can the judgment of the judge and jury be so easily dismissed? They decided on 3 years, while the feds want him incarcerated for life. But why is the determination of a warden of more importance than that of a jury of one’s peers?

I want my community protected. I don’t want predators roaming the streets. And I’m not some bleeding heart who feels pity for the ‘sad circumstances’ of the beasts who prey on the weak.

I’m not even much inclined to fret about slippery slopes.

But I’m made uneasy by the idea that incarceration for a sentence of time to receive punishment for a crime committed cannot be doled out without a right to a trial, evidence, and the decision of peers, while indefinite incarceration for the vague accusation of being a “danger” can be done with nothing more than a bureaucrat’s decision and a compliant judge.