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Sexual Orientation and the Law
James Lange, CPA/Attorney
Guest: Anthony Infanti
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- Guest Introduction: Anthony Infanti
- How is the Landscape Changing Concerning Same Sex Equality?
- What Changes May Happen Legally for Same Sex Couples?
- Equality in Education
- Unlawful Discrimination
- Tax Strategies for Same Sex Couples
- What Follows the Legalization of Same Sex Marriage?
- Healthcare Equality
David Bear: Hello, and welcome to this edition of the The Lange Money Hour, Where Smart Money Talks. I’m your host, David Bear, here in the KQV studio with James Lange, CPA/Attorney and author of two best-selling books, Retire Secure! and The Roth Revolution: Pay Taxes Once and Never Again. The LGBT community rightfully rejoiced last June when the U.S. Supreme Court struck down the Defense of Marriage Act. That landmark decision has unleashed an ongoing tide of legal reevaluations. Recently, Attorney General Eric Holder announced the federal government will recognize same-sex marriages “to the greatest extent possible under the law.” In addition to the estate tax issues on which DOMA was adjudicated, federal law has some 1,100 places where a person’s marital status can determine legal protections and responsibilities from Social Security and student aid to immigration rights and spousal benefits for veterans. And because each state has its own statutes in many of these issues, myriad other considerations come into play, even in jurisdictions like Pennsylvania that don’t presently recognize same-sex marriage. To help sort through these issues, we welcome Professor Anthony Infanti to this edition of the The Lange Money Hour. Associate Dean at the University of Pittsburgh School of Law, he focuses on issues of sexual orientation and the law. He writes widely on the subject and in his book, Everyday Law for Gays and Lesbians (and Those Who Care About Them), accessibly explains how the law applies to and impacts LBGT lives. It’s sure to be an interesting and informative hour, and listeners, since our show is live, please join the conversation by calling the KQV studios at (412) 333-9385. And with that, I’ll say hello, Jim and welcome, Professor Infanti.
Jim Lange: Welcome, Tony.
Anthony Infanti: Thank you very much for having me.
Jim Lange: One of the things that really impressed me about your book was the same thing, actually, that impressed me with Evan Wolfson’s book. Even though both of you are fine attorneys, very scholarly, and really could not have higher credentials, what was really striking to me was not just the legal analysis, but the…I’ll call it the human interaction, the human empathy side that, frankly, I wish a lot of people, particularly those who are against same-sex marriage and not open to LGBT issues, could read. And in the early part of your book, you said (and this is a direct quote): “When I examine the social and legal terrain that surrounds us, I find us situated somewhere far short of unqualified acceptance that we seek, and a mere stone’s throw from the unadulterated hostility that defines our past.” Now, this book was written, let’s say, maybe six or seven years ago. Do you still believe this today, or is the landscape changing a little bit?
Anthony Infanti: The landscape’s changed, I think, quite a lot, but we still aren’t that far from the time when there was unadulterated hostility. I mean, I, you know, I’m not that old. I still remember it. I grew up with it. You know, I lived it. I still, sometimes unfortunately, have to live with it. But we still are far short of the unqualified acceptance aspect of things, as well. I mean, I think, you know, there’s been a lot of movement, in particular on same-sex marriage, we’ve seen a lot of change over the past just couple of years in the number of states that recognize same-sex marriage. But I think what often gets lost when people think about these things is the difference between what usually legal scholars call formal equality versus substantive equality, which is the difference between having a law that says you’re equal and actually being treated equal in real life. They’re two different things, and especially when you look at, you know, some of the more recent, you know, cases that are extending the right to same-sex marriage in Virginia or in Utah. Those are things that are coming from the courts. It’s not like it’s coming from, you know, a felt need among all of the people in those states to extend equality to same-sex couples. It’s, you know, judges deciding that that’s the way it should be in states that are otherwise relatively hostile to same-sex couples.
Jim Lange: Do you think that is changing? I know, in my own case, my daughter is nineteen years old, and she’s just totally oblivious to LGBT issues. That is, she just kind of doesn’t even think of it as a big deal, and she’s that way also with race, and hopefully, there’s a whole generation coming up like that, and I know that you’re working as a professor. You’re dealing with students older than her, but do you see that as a generational difference where, let’s say, people like me in their fifties might be a little bit less open minded, but our children and, ultimately, our grandchildren will be more open minded?
Anthony Infanti: Oh, I mean, there’s definitely a generational aspect to it, and that’s been clear for a while now that, you know, that younger generation’s always been more open, the older generation’s less open. I mean, you know, over the long haul, I think it’s, you know, we’re going to be moving much closer towards unqualified acceptance. But it’s going to be over the long haul, and it’s not to say that everyone who’s younger is necessarily on board and, you know, unqualifiedly accepting LGBT folks.
David Bear: Or that anybody who’s older is necessarily not accepting.
Anthony Infanti: Exactly, yeah. I know plenty of people who are on the older end of things, and are…
David Bear: Right.
Anthony Infanti: …more than accepting, yeah.
Jim Lange: Well, how far actually have we come? And let’s say it’s a two-prong question, both legally and, in effect, substantively. And then, how far do we have to go?
Anthony Infanti: I mean, how far we’ve come, you know, it’s quite far. I was born in the sixties. I mean, we’ve come way far since Stonewall, since 1969, and we’ve gone quite a long distance. But when you look back…
David Bear: Right.
Anthony Infanti: …I mean, you look to your past, you say, “Oh, I’ve come so far,” but then when you look forward and say, “Okay, well, how far do we still need to go?” So, we’re making a lot of progress on same-sex marriage. Still, you only have about seventeen states in the District of Columbia that have same-sex marriage right now. So, there’re still quite a lot of states that don’t have it. And then, there’s a lot to life beyond marriage. Marriage is not unimportant, but it’s not the only thing in life. There’re lots of other aspects of your life that, even if we had marriage equality, will still be affected.
Jim Lange: Well, one of the stories in your book, and again, I salute you because you are a scholarly attorney, but your book is written at a very human level, you talk about just the really terrible experiences that you’ve had even just going to a diner and ordering a meal and being treated really just miserably by the wait person, that might not even represent the management or the ownership. Are these still some of the things that you’re talking about when you say ‘substantive equality?’
Anthony Infanti: Yeah, I mean, substantive equality is kind of the everyday aspect of it. Are people actually treating you equally, or even under the law, are you actually being treated equally, or is it just they’re saying you’re equal but then, in reality, it doesn’t pan out that way?
David Bear: Umm-hmm.
Anthony Infanti: And that still, I think, happens, even in places that you think of as very accepting. One of the stories in the book, and when I was asked to write the book, I wanted to do it with the narratives in there because I felt that it was really important that people be able to not just see what the law was, but connect and see how things really happen to people, you know, why it matters, how it would fit in, in a very concrete-type situation. But I even talk about when I worked in New York as an attorney, before I came to Pittsburgh to teach. Here, people usually think of New York and big New York law firms as very accepting places, very liberal places, but was clearly subject to job discrimination there. I had one partner that I worked with who I shared a secretary with who actually forbade my secretary from doing work for me because I was gay. I mean, it’s crazy that you think that kind of thing happens, but that was the late nineties in New York City. It’s not something that people would expect to have happen…
David Bear: Right.
Anthony Infanti: …but it did.
Jim Lange: Well, let’s maybe go back to the legal side, because you’re probably…well, actually, you’re an expert in both, but you said there are seventeen states that, right now, currently recognize same-sex marriage, and, you know, basically, practically, almost on a daily basis, you read about some court case.
Anthony Infanti: Umm-hmm.
Jim Lange: Do you see a trend, and do you have some feel for what we can likely expect in terms of changes in the law, let’s just say either with regards to same-sex marriage, or some of the other issues that I hope to address?
Anthony Infanti: With same-sex marriage, I think we’re on a trajectory of…eventually, same-sex marriage is going to be legal everywhere in the U.S.
Jim Lange: Even the states that have Constitutional amendments against it?
Anthony Infanti: Yeah, because at some point, because you’re seeing all these new cases that are coming out. It’s all basically federal courts applying the federal constitution after the Supreme Court case last June, the Windsor case, and basically saying that…their read of the Windsor case is that same-sex marriage is basically going to have to be recognized everywhere. It’s kind of the import of what’s happening, that it’s violating equal protection or due process…
David Bear: Umm-hmm.
Anthony Infanti: …to not extend marriage to all same-sex couples. And so, I think that’s coming down the pike. It’s just a matter of how long it’s going to take, because you see the courts in these individual cases being on board with it. But the Supreme Court, you get kind of a different signal from them, at least right now, because obviously, if they wanted to extend the right to same-sex marriage already, they might have tried to do that in the California case last year…
David Bear: Right.
Anthony Infanti: …which they didn’t. And then, when the Utah case went up to them on the decision to stay the appeal, I mean, you saw that they didn’t say, “Oh, well, no, let’s let things go. Let them continue to marry in Utah, pending the appeals,” which is what you would have expected them to do if they thought there was no way they could win, but no, they stayed the decision, which is basically, you know, kind of a…I think a lot of people take as a signal from the Supreme Court that they don’t want to move too far too fast and get too far ahead of everybody.
Jim Lange: And what about all the states that literally have Constitutional amendments, or that you would need a change in the state Constitution to allow same-sex marriage?
Anthony Infanti: You don’t need a change in the state Constitution if what they’re saying is that your federal constitutional rights are being violated, because under the Constitution, there’s an article in the Constitution that says that the federal Constitution in federal law are the supreme law of the land, which means that if a state law violates your federal constitutional rights, it will be struck down, and even if it’s something in the state Constitution.
David Bear: Umm-hmm.
Jim Lange: So, you’re saying some of those states, no matter how resistant they are, if the Supreme Court says, “Hey, same-sex marriage is fine. It’s a violation of due process. If you don’t have it, they don’t get a vote.”
Anthony Infanti: It’ll override, and some of these cases, you know, the Virginia case, it was…
David Bear: Right.
Anthony Infanti: …you know, Constitution and the state statute. So, the federal Constitution can override both of those. The state constitutional amendments were put in there in the beginning to make sure that state court judges couldn’t say that…
David Bear: Right.
Anthony Infanti: …you know, that the state constitution overrode a state statute saying that same-sex marriage was prohibited. So, they were put in there to be a check on the state judges. They have no ability to put a check on the federal judges. That was why, during the Bush administration, people were trying to propose a federal constitutional amendment because then that would tie the hands of the federal judges, as well.
Jim Lange: Okay. All right, well, you know, your book actually addresses many different areas, and one of the areas that seems to be a pretty important area, and, as you, who has spent fourteen years as a law professor, education has to be pretty important, and also as the father of a four-year old girl, who is about to enter our educational system, where do you think we are in terms of our educational system right now? Where do you think we need to go? And let’s appoint you for the Education Czar. What would you do about it?
Anthony Infanti: Yeah, well, being the Education Czar, I mean, one of the probably most important things, I think, is bullying, and addressing bullying issues. I mean, bullying extends beyond just, you know, lesbian and gay kids being bullied, or the children of lesbian and gay parents being bullied. Naturally, it extends to lots of different situations where kids get bullied. But that’s a really important one. I mean, it can make kids’ lives miserable. You know, that’s why you have that whole campaign of ‘it gets better.’ It’s ‘hang on, because your life is so horrible now.’ You’re trying to prevent kids from committing suicide or doing other things that just…
David Bear: Especially now with social media and all those things, as well.
Anthony Infanti: Umm-hmm. Oh, yeah. There’re all sorts of different ways for kids to get bullied. I think that’s probably one of the most important things, making a safe atmosphere in which kids can go to school and get the education. The whole point of going to school is to get the education. It’s not to go and be bullied by other kids to the point where it affects not only your education, but also your life, more generally.
Jim Lange: At a local level, do you know if the Fred Rogers Foundation is doing work in that area? Because I have a client, not in the LGBT community, who is very interested in bullying issues, and I think that she was talking to the Fred Rogers Foundation, and I know that he was successful in going to Congress and getting money for those issues when he was alive.
Anthony Infanti: Yeah, yeah. I don’t happen to know that.
Jim Lange: Okay. All right, but you’re thinking that that is the…
Anthony Infanti: I think that’s a really important issue, and also sensitizing schools to different types of families, different family forms, so that way, they can interact appropriately with parents, is also important.
Jim Lange: All right. Well, on a more personal level, what is it like being a parent with a same-sex partner and having a four-year old daughter?
Anthony Infanti: Yeah, I mean, it’s definitely interesting. It’s great being a parent, but people, I think, tend to think…
Jim Lange: You can’t wait until she’s twelve or thirteen!
Anthony Infanti: I mean, there’re always those challenges!
Jim Lange: Sorry about that!
Anthony Infanti: Those aren’t different from me than they are for anybody else, but, I think, people, when they think of the LGBT community and they think of parenting, they tend to think of lesbians. They don’t tend to think of gay men as parents. And so, when you see two guys who are parents, people just don’t expect that. I can’t tell you how many times I’ve been on my own, because I’m the primary caregiver, so I take my daughter to daycare, drop her off, pick her up, do all the doctor’s appointments, all that stuff, how many times I’ve been asked about my wife, I could not tell you. These people just assume, because I’m a man, that I must be married to a woman because I have a child.
David Bear: Umm-hmm.
Anthony Infanti: And then, there’s always the kind of interesting conversations that people want to have when they realize that you’re not heterosexual, that you’re in a same-sex relationship and you’re a man, they always want to know how you managed to have that child. “Is she adopted?” We actually used a surrogate to have our child. So, then they want to know all the details about the surrogacy. At a certain level, you don’t necessarily mind sharing, but sometimes it’s with people that you don’t know that well…
David Bear: Right, at their level of trust.
Anthony Infanti: …and you just wonder about why they have no boundaries to ask you all of these questions that they probably would not ask, say, somebody who is straight who had, say, problems with fertility, or something. They wouldn’t be probing all of these different things because they know they’re sensitive subjects, but they don’t seem to mind so much asking for all of the intricacies of using a surrogate to have a child.
Jim Lange: Well, let’s say somebody is actually being appropriate, because you talk in your book about coming out, and not just in a big way for big issues, but even the little ways.
Anthony Infanti: Umm-hmm.
Jim Lange: So, how do you respond to some of those questions if somebody says, you know, “Well, where’s your wife today?” or “Doesn’t your wife usually do this?” How do you personally respond, and how would you, let’s say, recommend other people respond?
Anthony Infanti: That’s actually a really good question because people think of coming out as like, okay, you come out once, or you come out when you’re in your early twenties. You come out for your whole life over and over and over again. Every time you go somewhere new, you meet somebody new, they’re going to usually presume that you’re straight and not think that you’re gay, and so you have to decide. Are you going to tell them? Not tell them? And frankly, even for someone like me, I’m out. I’ve always been out at work. I’m out in everything that I do when I write and things like that. You’re still making decisions about what to say. I’m not always going to want to come out to everybody every single time. Sometimes, it’s just not worth it. If it’s just some passing thing, two seconds…
David Bear: Right.
Anthony Infanti: …I’m not going to stop and spend twenty minutes explaining to them my family relationship, and all this. It’s just okay. I’m just going to take a pass on that one and move on.
Jim Lange: Umm-hmm.
Anthony Infanti: But then, you’re also deciding when do you want to divulge that, when do you want to talk to people about it, when is it worth it, because sometimes, the return on the investment of all the time just isn’t worth the effort.
Jim Lange: Yeah, well, I sure hope the educational system has changed since you were in school. You know, you talk about what a terrible experience it was being in an all male dormitory.
Anthony Infanti: Umm-hmm, yeah. Oh, yeah. I mean, sometimes things can get really supercharged, but even as a kid, I was bullied as a child in elementary school, beaten up, that kind of stuff, and it’s kind of par for the course when you’re gay, at least when I was growing up. I hope that it’s different now. It’ll be interesting to see how things go when my daughter enters elementary school. Right now, she’s at the daycare at the university.
David Bear: Right.
Anthony Infanti: So, it’s kind of a very cocoon-like atmosphere…
David Bear: Nurturing environment, yeah.
Anthony Infanti: …because you’re dealing with people, it’s all people who are either faculty staff or students at the university, which is generally a pretty welcoming place. And so, you have one kind of an atmosphere where I’ve not had any problems at all. But then, when you get into the elementary school, which is going to be a broader cross section of a community, you never know what the interaction is going to be like, how other kid’s parents are going to think about you or what they’re going to say, and you know how kids are. If the kids hear the parents say something about somebody, then they’re going to just repeat it in school, and then you have to deal with how do you talk to your child about this? How do you explain to them what’s going on and why some other kid is making this comment that they found hurtful, or they can’t understand, and you have to try to figure out how to explain that.
David Bear: Have you had those conversations?
Anthony Infanti: Not yet, thankfully.
David Bear: Right.
Anthony Infanti: Thankfully haven’t had to have those conversations yet, but you still get the questions. My daughter, already, at age four, is starting to…
David Bear: Notice a difference, yeah.
Anthony Infanti: …edge towards the questions about why she doesn’t have a mom hanging around…
David Bear: Right.
Anthony Infanti: …because all the other kids do.
David Bear: And everything she sees is oriented that way.
Anthony Infanti: Umm-hmm.
David Bear: Well, anyway, it’s fascinating, but let’s take a break right now.
David Bear: And welcome back to the The Lange Money Hour. I’m David Bear, here with Jim Lange and Professor Anthony Infanti from the University of Pittsburgh School of Law.
Jim Lange: Tony, earlier, you mentioned, in effect, different types of discrimination, that is legal discrimination, what you’re allowed to do on the law, and substantive discrimination, maybe that doesn’t have a specific law, but it occurs anyway. Why don’t we start on the legal end? What is the state of law hiring a member of the LGBT community?
Anthony Infanti: It really varies state by state. The number of states that have laws that protect people against discrimination on the basis of sexual orientation or gender identity is below half. It’s roughly a little bit more than the number of states that have same-sex marriage, and of course, it’s a lot of the states that have same-sex marriage.
David Bear: Right.
Anthony Infanti: But also, in that same category, there’s a lot of overlap. So, it’s about twenty, twenty-one states that protect…
Jim Lange: And there’s no protection in Pennsylvania either?
Anthony Infanti: No, not at the state level. There’s some at the local levels in different places, but not at the state level. So, that’s something that’s really important. That’s why I was mentioning before that people focus on marriage and marriage equality and the importance of that, and that’s great. But even if you have marriage equality, if someone can fire you from your job because you’re gay, that’s really, really important. That’s your livelihood. So, one part of your life is your personal life and who you’re in a relationship with, but another part of it is if neither of you can actually make any money, how much help is that marriage going to be? So, employment discrimination, housing discrimination usually goes hand in hand with that, public accommodations discrimination, going back to the diner type of a situation. Those are all bases of potential discrimination that can have real affects on people’s lives, getting turned away from somewhere, and those are all things that weren’t being addressed in the marriage equality fight. They’re completely separate from that, and they’ve been kind of put on the backburner.
Jim Lange: Well, and then there’s also substantive discrimination. Let’s even say that some of these laws did take place, but people, either through more outward actions or even just little innuendos, could really make life miserable for somebody if they wanted to.
Anthony Infanti: Oh yeah. There’s having protections against discrimination, and then there’s proving that they’ve been violated, or wanting to prove that they’ve been violated. Sometimes people who have been subject to discrimination won’t want to press the claim because if they press the claim, that might be professional suicide for them, because then everyone looks at them as being the person who sued their employer, or made this claim, and now they’re afraid that they’re going to make a claim against them because they’re supersensitive to being discriminated against. And so, there’s a difference between having a right and being able to exercise the right or being protected by the right.
Jim Lange: Yeah, and some people, I would imagine, just want to do their job and don’t necessarily want to be the gay expert. For example, you did happen to write a book about…and by the way, I should repeat the name of the book because I thought it was excellent. And again, it’s not a deep, lawyerly book. I thought it was more in the Evan Wolfson tradition of being written by a fine attorney, but really…
David Bear: Readable.
Jim Lange: …the humanity…more than readable. I think it’s the humanity and the compassion that really comes out that I think is really important. I spend my days, and I’m working on the book Retire Secure for Same-Sex Couples, and we’re trying to optimize Social Security strategies, and I’m trying to optimize IRA and retirement plan strategies, and it’s good for me to read this because I kind of forget about the human element. Anyway, Everyday Law for Gays and Lesbians (and Those Who Care About Them) by Anthony Infanti, and that is available at Amazon.com. So, you chose to write a book that certainly has a lot of the law in it. You chose to do that, but maybe you would be more interested in torts or contract law or constitutional law, and you just might happen to be a gay law professor who doesn’t have particular interests in gay issues. Do you see that, and what is appropriate just to let those people do their constitutional law and their tort law and leave them alone?
Anthony Infanti: Yeah, there’s always that divide. There’re plenty of people that do the same kind of thing that I do, but don’t want to focus on LGBT issues, even though they’re gay. They just don’t want to do it because they don’t want to be pegged or stereotyped as the person who’s, you know, they’re the professional gay in the sense that they’re not a gay professional, but they’re professionally gay, that they do all sorts of gay-related stuff for work and that’s all they do. There’re plenty of people who just want to do their job and go along with their lives and they happen to be gay and that’s fine and they’re out, but they don’t want that to be the focus of everything. And then, there’re other people that are like me who are more comfortable with being kind of more the professional gay, where my work focuses on it (Not my work when I was in practice doing law, I was a tax attorney). But since I’ve been writing and teaching, I’ve focused more on LGBT issues. Not every day in my classes, but in the writing that I do.
Jim Lange: All right. Actually, just partly out of curiosity, how many classes do you teach that have LGBT issues? Not that you don’t bring it to other classes, but let’s say they’re basically geared around LGBT issues.
Anthony Infanti: I don’t teach anything that’s purely LGBT. We, on occasion, have classes about law and sexuality. I don’t teach that. I teach all tax classes. I try to bring the LGBT issues into class where I can, where it’s appropriate, to try to open up student’s eyes, especially in the basic federal income tax class where they’re just kind of learning about the tax system. They’re often kind of wary of it, skeptical of the class. They think it’s going to be boring and lots of rule memorization and stuff, and just, kind of, it helps to bring home that, and in many other ways, how it affects people’s lives and how it really has an impact on people’s lives and how the tax system interacts with people’s sexual orientation or their family lives, because the tax system tracks everything we do. It hits all the different aspects of our lives, and it hits us differently, depending on who we are.
Jim Lange: Well, now, you’re getting a little closer to my area of expertise! But I know that you come at it from a different angle, and maybe if I hear a little bit about the way you’re coming from it, and then, let’s say, some of the things that I’m doing, it might be enlightening to some of our readers. So, there is a recent revenue ruling that was pretty profound, and I’m more of an income tax guy. I think, now, most of the tax attorneys are switching to income taxes because, with the larger estate tax exemptions, I think it’s something like $5.3 million, and, if you’re married, it’s $10.6 million, not that many of us have those kinds of estates, and I’ve always been an IRA guy, a retirement plan guy, a Social Security guy. So, those are the areas that I am focusing on in the book that I’m writing, Retire Secure for Same-Sex Couples. Really, the most important chapters are about IRAs, retirement plans and Social Security, and all that is new and recent. But I know that you are also a tax attorney.
Anthony Infanti: Umm-hmm.
Jim Lange: And maybe you could comment on the most recent revenue ruling, the implications of it, and some of the strategies that some same-sex couples could use?
Anthony Infanti: Yeah. Strategies, I’m not so sure about strategies, because I come at the revenue ruling kind of the same way that I come at the stuff from the book, which is thinking about the human impact of it. How’s it going to affect people? What’s going to happen? Looking at it from the perspective of how’s it going to apply and how do people navigate it. Because, when you look at the revenue ruling, and the revenue ruling is more precise than the stuff that they put in the questions on the website that they have, but when you read the revenue ruling, there’re lots of gaps. Basically, the way that I look at the revenue ruling after reading it, is to be not all that much different than what DOMA was like for same-sex couples.
David Bear: Just for our listeners, what exactly is the revenue ruling?
Anthony Infanti: Oh, sure. The IRS can put out guidance in lots and lots of different ways. They can do regulations. They can put out a notice or an announcement or revenue ruling. They can give a private letter ruling to an individual taxpayer. A revenue ruling is a public form of guidance that the IRS intends taxpayers to rely upon. And so, even doing that was a big difference from the way the IRS had given guidance to same-sex couples before. The rare occasion, when they did it before the Supreme Court case came down, was always private guidance. It was always stuff that you could not cite in court and that you were not supposed to rely on. It wasn’t legal precedent.
David Bear: Umm-hmm.
Anthony Infanti: It was something you couldn’t say in court. Revenue rulings are public and they’re meant to be relied upon by taxpayers. So, that was a big shift all by itself.
David Bear: Is there a short statement of what that ruling was?
Anthony Infanti: Okay. So, the ruling basically said (and this is very basic, because then I’ll talk to you about some of the problems with it) if you’re married in a state that recognizes same-sex marriage, then the IRS is going to recognize your marriage. Basically, they’re adopting what we call a ‘place of celebration’ rule for determining whether you’re married or not. And another thing that they say is people who are in civil unions and domestic partnerships, their relationships will not be recognized, even if they’re the legal equivalent of a marriage. Now, that’s very simple on its face, but there’re some really difficult questions that are built into that, because from the perspective of the law, there can be different kinds of marriages in the sense of…okay, so, the revenue ruling, the way it’s written, all that it talks about is the situation where you have a couple who’s living in Massachusetts. They get married in Massachusetts (that recognizes same-sex marriage). They stay in Massachusetts for a while, and then, say, one of them gets a job in Pennsylvania, and they move to Pennsylvania. So, they were married in a state that recognizes same-sex marriage. Everything was all going fine and dandy. Then, they move to a place that all at once says, “We’re not going to recognize your marriage anymore.” And the IRS is saying, “Well, we’re not going to stop recognizing their marriage simply because they moved from a state where they had a valid same-sex marriage to a state where they refuse to recognize that valid marriage.” That’s great, and that’s pretty much the way the law should work.
The problem is that there’re also lots of people who live in states that don’t recognize same-sex marriage who leave the state, get married, and come immediately back. So, they’re just leaving to go out and get married and they come back. So, you think of a couple from Pennsylvania who crosses the border to Maryland, or New Jersey, or New York, gets married and comes back to Pennsylvania. We call that an ‘evasive marriage’ because you’re trying to evade the marriage prohibition in Pennsylvania. That’s the only reason really for leaving the state is you’re evading the marriage prohibition in Pennsylvania. That kind of a marriage, because the IRS in the revenue ruling repeatedly talks about recognizing valid marriages, it raises the question of the legal validity of the marriage.
Now, under the law, when we talk about evasive marriages, the way that we usually deal with it is that the state where the couple lives is the state that controls whether that marriage is valid or not. So, in Pennsylvania, the rules that have been adopted in Pennsylvania (and the Supreme Court of Pennsylvania said this), if you’re from Pennsylvania and you leave the state to get married and you come back, basically, Pennsylvania has the closest relationship with the couple. Pennsylvania law is basically going to determine whether you’re married or not if that marriage violates a strong public policy in Pennsylvania. And so, the problem is, is that we have a state Defense of Marriage Act that very specifically, I mean, it’s very specific in the statute, not just says, you know, that marriage is between a man and a woman, it says it is the longstanding and strong public policy of the state of Pennsylvania that marriage is between one man and one woman and that’s it. And that would seem to say that under Pennsylvania precedent, that that marriage, even though it’s lawful to get married in Maryland or New Jersey or New York, would not be valid. And if it’s not valid, then under the revenue ruling, it would seem like that marriage should not be recognized for federal tax purposes. And the IRS doesn’t get specific about these evasive marriage situations, even though most of the states in the country are states that don’t recognize same-sex marriage. So, you’re going to have a lot of couples in that situation where they’ve left and gotten married and came home.
Jim Lange: Yeah, and by the way, usually, I like to agree with my guests and be very cordial…
Anthony Infanti: No, that’s fine.
Jim Lange: I actually have a different reading. I thought that the revenue ruling was relatively clear, and that they even used the word ‘jurisdiction of celebration,’ and actually, one of the main strategies, talking about strategies, that I am recommending in the book is that for, let’s say, a Pennsylvania resident…and I would agree with you completely, for Pennsylvania purposes, for Pennsylvania inheritance tax purposes, for many state rights, a marriage in New York or New Jersey or Maryland would not be valid. But it’s my reading that for federal income tax purposes, and, perhaps more importantly for my purposes, the treatment of IRAs and retirement plans, which is really my area, they will recognize a marriage of New York or some jurisdiction that allows same-sex marriages. And it’s really a very important question because I’m a strategist. I’m a chess player and a bridge player, and in the summary, I have a whole bunch of strategies that combine Social Security, Roth IRA conversions, naming beneficiaries of IRAs and retirement plans, using strategies like apply and suspend and a whole series of things, and the difference, literally, is, in the chart that I have in front of me that’s part of the book, one way, you’re literally broke, starting at 62 and ending at age 90, and the other way, you have well over a million dollars. So, I thought that that revenue ruling was for federal income tax purposes was clear enough that a Pennsylvania resident could go to Maryland or one of those states, get married, come back, and the federal government will recognize that for income tax purposes and for IRA and retirement plan purposes.
Anthony Infanti: Yeah, the thing is, I don’t think the revenue ruling is clear on that at all, because the way it’s written, it’s written as basically all of the examples, everything that they talk about in the ruling, are all people who live in a state that recognizes same-sex marriage, get married there and then move somewhere else. They’re always talking about that problem, and in fact, they cite an old revenue ruling as the basis for the position they’re taking. The old revenue ruling is about people who enter into a common law marriage in a state that recognizes common law marriage, and then later move somewhere else…
David Bear: Umm-hmm.
Anthony Infanti: …to a state that doesn’t recognize common law marriage. All of the examples, everything in the revenue ruling, the way it’s written, is all written for that type of situation, what we call a ‘migratory’ marriage, where you’re married someplace that recognizes your marriage, and then you move somewhere else. And I agree. It’s an important question. The problem is, I don’t think that the revenue ruling actually addresses that question head on. There’s a little bit of ambiguity in the revenue ruling, but even putting the ambiguity aside, you get into the question of when they still, still repeatedly say that the marriage has to be valid, and to be valid, even some of these states of celebration like Maryland and New York and New Jersey…apply similar rules to the one in Pennsylvania that would say if a couple just comes here to get married, the state that really has the most significant relationship with the couple is not us. We married them, but the place where they came from…
David Bear: Umm-hmm.
Anthony Infanti: …and where they went back to afterwards, and that state’s law is the one that should control because that’s what these states do when their own people leave is apply that same type of rule to determine which state law controls the validity of the relationship.
David Bear: Well, DOMA was kind of adjudicated on issues of, you know, this discrimination, so yeah.
Anthony Infanti: Yes. Yeah, I mean, it raises similar problems as DOMA did, in the sense that part of the discomfort that the Supreme Court had with DOMA was based on federalism grounds, the idea that usually it’s the states that get to determine who’s married and who’s not married, but it was the federal government who was determining who was married and not married. They were saying, “Even if you’re married under state law, we won’t recognize it.” Now, it’s the opposite. They’re saying, “Well, even if your state says you’re not married, we’re going to say you are married.” It creates that same type of tension.
David Bear: Well, this situation is certainly fluid, but we have to take a quick break now, and we’ll come back and we can continue the conversation.
David Bear: And welcome back to the The Lange Money Hour, with Jim Lange and Professor Anthony Infanti from the University of Pittsburgh School of Law.
Jim Lange: All right. We’re here with Tony Infanti, author of a book that I would recommend, Everyday Law for Gays and Lesbians (and Those Who Care About Them), and like I had mentioned earlier, I’d say the book is more on the human probably than even a legal level. So, we’ve had Evan Wolfson on, who is the great champion of the same-sex right to marry, and what an articulate and active spokesman he is. And by the way, if anybody is interested in listening to that interview or reading the transcript, if they go to www.OutEstatePlanning.com, or another website, paytaxeslater.com, that interview and transcript is available on both those websites. But are you basically on the same page as Evan on the right to marry, and if states, like even Pennsylvania, open up the right to marry, do you think that other hurdles like employment discrimination will also have a better chance of changing?
Anthony Infanti: Yeah. Typically, I think, in the past, it’s gone in the other direction. Usually, a lot of these states have had employment protections or anti-discrimination for housing or public accommodations, and sort of build. So, there’s this building kind of acceptance, and then got to the point of accepting same-sex marriage. I think in the next ten, fifteen years, you’re going to see it in the other direction because I think same-sex marriage is going to come sooner rather than later, and I think it’s going to outpace and be faster than all of these other protections, and then it’s going to be a matter of trying to battle that. And part of the problem of doing that sometimes can be…people think you’ve already won.
David Bear: Umm-hmm.
Anthony Infanti: They wonder why you’d need anything else. So, people think, “Okay, well, you have this right to marry.” Then, they’re like, “Aren’t we all equal now? Like, why do you need any help anymore?” And so, then it becomes sometimes a little bit harder, actually, to get the protections that you really do need because people think you don’t need them, often incorrectly thinking that.
Jim Lange: Well, we do have a national audience, and I know, you know, we get a lot of comments and calls from actually outside the state, but we’re broadcasting from Pennsylvania and the majority of the listeners, I think, are local. What do you see happening in Pennsylvania? Because I know there’re lawsuits being brought up right now, and I actually didn’t know that you were quite active with the ACLU, but apparently, you, at least, were or are, and is what is going on politically in the state (and the big election coming up for governor’s race), is that going to be much of a factor either way?
Anthony Infanti: It’ll be interesting, and I was on the board of the ACLU until my daughter was born, and then…
David Bear: Right! You had to make time, right?
Anthony Infanti: Then I stepped back because, yeah, I had to make time. But they do fabulous work for the LGBT community, and they have a lawsuit that’s scheduled to go to trial in June challenging the state same-sex marriage ban. And in contrast to a lot of other lawsuits, usually these lawsuits are done on what’s called ‘summary’ judgments. So, they just file a lot of papers, and then they send something to the judge saying okay, we want you to do judgment based on the law, in essence. And the ACLU here in Pennsylvania’s taken a different tack. They actually want to have a trial. They actually want to bring the plaintiffs up and have the plaintiffs testify so they can put a real human face on what’s going on, and how the marriage ban affects real families and real people, which, I think, I mean, is to their great credit that they’re trying to put a real face on what’s happening and not just have it be done on papers and legal arguments and that’s it. So, I think they’ll win at the end of the day. It may take some time in the sense that…I wouldn’t be surprised with the administration we have now, that if they win at the district court level, that the state would try to appeal it to the third circuit court of appeals. So, there could be appeals that go on, but eventually, I think they’ll win. But, you know, getting back to the question of does having legal rights mean acceptance? Even if we do have same-sex marriage in Pennsylvania, that’s no guarantee that the very conservative kind of center in the top part of the state is going to all at once be accepting of same-sex couples, or non-traditional families.
Jim Lange: By the way, this is a momentous moment in radio where an attorney is actually predicting the outcome of a Pennsylvania Supreme Court case! You don’t see that very often!
Anthony Infanti: A federal district court case, but…
Jim Lange: Oh, I’m sorry.
Anthony Infanti: No, I wouldn’t be surprised if they won. I mean, that’s what all the other federal district court cases have been coming out recently. They’ve won, and I think if they put a human face on the case, I mean, I wouldn’t see why…
David Bear: And didn’t the Attorney General Kathleen Kane say she wasn’t going to defend the law?
Anthony Infanti: Right.
David Bear: Now, Corbett is the…
Anthony Infanti: Yes. Yeah.
Jim Lange: All right. There’re some other areas that the LGBT community, in my opinion, should be concerned with, and one of them that you might not think is all that important, but I think when there is a health problem, it becomes very important, is some of the differences in treatment of healthcare. And we could talk about the tax issues, and by the way, the tax issues are important and they are favorable, and we’re getting the ‘not very minutes left,’ but if you could tell us a little bit about what people can do to protect their health rights, if you will?
Anthony Infanti: Yeah. People should be thinking about all the different things that they could do to protect themselves medically. I think of durable powers of attorney for finances, and also for medical care, to make sure that you have somebody who’s appointed and who knows what your wishes are. So, that way, they can carry out your wishes and also have access to you. And this is another area where there’s a difference between formal equality and substantive equality, because there’ve been lots of situations in the past where you’ll have a same-sex couple where one person has a power of attorney over the other for healthcare, and one person will become incapacitated, they’re sick and they’re in the hospital, and the hospital hasn’t allowed access to the other partner, and they’ll wait for the “family” to come, and then the family will have to intervene on their behalf and say, “Yes, you have to let them in.” And sometimes, it’s been horrible situations where the person will have died, or be now comatose, and they can’t talk to them anymore by the time they actually get in there. And so, the difference between having a piece of paper that says that you have some rights and some powers and actually being able to exercise those is oftentimes a big difference, and part of that is training people in hospitals and making sure that there’s no discrimination in that area, as well. So, making sure your rights are protected is really important in doing everything you can do, but then also keeping in mind that it doesn’t always translate into reality. And sometimes, even family members, who seem like they’re all onboard and okay with your relationship, all at once become not so okay when their son or daughter or brother or sister is now incapacitated or dying or whatever, and all at once, things break down.
Jim Lange: We advertised this radio show as being revolving around LGBT issues, and I would imagine that we have a higher percentage on this particular show of the LGBT community, but probably, the majority of the listeners are not part of the LGBT community. What advice, or what could you tell people who are not part of the LGBT community, what should they be doing? Let’s say that you do have a sympathetic listener. I know Evan Wolfson was a very big advocate of talking about it, explaining it, bringing up these issues. What advice would you have for somebody who is open-minded, but maybe has not done anything either politically or actively?
Anthony Infanti: Yeah, and I don’t think you have to be awfully political or active about it. I think a lot of it is usually everyday type of situations, and just challenging discrimination when you see it, challenging presumptions when you see them, because, as I mentioned before, if you’re the LGBT person, you’re not always wanting to navigate every different situation. And sometimes, it’s helpful to have somebody else speak up and say something, and sometimes, you’re not around and you need somebody to speak up and say something. I’ll tell a quick story from after I came out. And so, both of my parents, I talked to them. My dad wasn’t so cool with me being gay, and he ended up turning around and becoming one of my greatest advocates. But my mom worked in a middle school and she was in the teacher’s room one day, and one of the teachers was just going on some anti-gay tirade, and my mom came home and she was so upset. My dad turned around to her and said, “You have a big mouth. Why didn’t you say anything? Why didn’t you say something? Why didn’t you challenge that person?” And that’s the advice that I would give people, is when you hear something like that, you challenge the person and say something. That’s the most you can do, especially when people feel comfortable because they don’t think anyone gay is around, and they think they can give voice to these kinds of opinions. Challenge them.
Jim Lange: That’s great advice.
David Bear: Well, and on that note, unfortunately, we’ve run out of time, so I’ll say thanks for listening to this edition of the The Lange Money Hour, Where Smart Money Talks, and thanks also to Professor Anthony Infanti from the University of Pittsburgh School of Law. Thanks to Dan Weinberg, our in-studio producer, and Lange Financial Group program coordinator, Amanda Cassady-Schweinsberg. As always, you can hear an encore broadcast of this show at 9:05 this Sunday morning, here on KQV, and you can also access the audio archive of past programs, including written transcripts, on the Lange Financial Group website, www,paytaxeslater.com, under ‘Radio Show.’ You can also call the Lange offices directly at (412) 521-2732. Finally, mark your calendar for Wednesday, March 5th at 7:05 and the next new edition of the The Lange Money Hour, when Jim’s guest will be Paul Hood, the author of “Estate Planning for the Blended Family.”
James Lange, CPA
Jim is a nationally-recognized tax, retirement and estate planning CPA with a thriving registered investment advisory practice in Pittsburgh, Pennsylvania. He is the President and Founder of The Roth IRA Institute™ and the bestselling author of Retire Secure! Pay Taxes Later (first and second editions) and The Roth Revolution: Pay Taxes Once and Never Again. He offers well-researched, time-tested recommendations focusing on the unique needs of individuals with appreciable assets in their IRAs and 401(k) plans. His plans include tax-savvy advice, and intricate beneficiary designations for IRAs and other retirement plans. Jim’s advice and recommendations have received national attention from syndicated columnist Jane Bryant Quinn, his recommendations frequently appear in The Wall Street Journal, and his articles have been published in Financial Planning, Kiplinger’s Retirement Reports and The Tax Adviser (AICPA). Both of Jim’s books have been acclaimed by over 60 industry experts including Charles Schwab, Roger Ibbotson, Natalie Choate, Ed Slott, and Bob Keebler.