Married D.C. Gay Couples Can File Taxes Jointly
Returns Could Be Rejected,
but Ruling Pressures Mayor
to Decide Whether City Will Recognize Unions
By Spencer S. Hsu and Lori Montgomery,
Washingtonpost.com from the Web, April 20, 2005
Washington, DC -- The attorney general for the District said that gay couples married last year in Massachusetts may file joint tax returns in the District but that the city's Office of Tax and Revenue "reserves the authority" to reject their filings.
The unexpected move by Attorney General Robert J. Spagnoletti places new pressure on Mayor Anthony A. Williams (D) to decide whether gay unions will be recognized in the nation's capital, potentially injecting it into the battle over gay marriage that roiled the 2004 presidential election and prompted an unsuccessful push in Congress for a constitutional amendment banning the practice.
Under federal law, married same-sex couples cannot file joint federal income tax returns because the 1996 Defense of Marriage Act defines marriage as the union of one man and one woman.
Most states also have laws that prohibit legal recognition of gay unions.
The D.C. Court of Appeals ruled in 1995 that gay marriages cannot be performed in the District, but no court has ruled on whether marriages performed in other states would be valid in the District, leaving unanswered a host of questions about the legal status of the couples.
D.C. Chief Financial Officer Natwar M. Gandhi, who oversees the tax agency, said through a spokeswoman that he would consult Williams and Spagnoletti.
"There are considerations in addition to the validity of the tax filing that must be reviewed by the [Office of the Chief Financial Officer], the mayor and other elected leadership," Gandhi said.
"The taxpayer was made aware in writing that the validity of their filing would be determined by the District at a later date."
Mayoral spokesman Vincent Morris said Williams is reviewing with city lawyers the filing of Edward G. Horvath and Richard G. Neidich, D.C. residents and federal workers who said they have been a couple for 25 years.
Morris would not say whether the mayor plans to meet with Gandhi or when he would make a decision.
Spagnoletti rendered an advisory opinion last year on whether the District must recognize same-sex marriages, but Williams has refused to release the document or its contents, citing the volatility of the issue and its unpopularity in the Republican-dominated Congress.
Aides said Friday's tax deadline prompted Spagnoletti to respond to the filing question raised by Horvath, 54, and Neidich, 64.
Horvath said they requested an opinion so they would not "commit perjury" on their tax forms by denying their marital status.
Spagnoletti's office said the couple's request is the only one it has received from a gay married couple.
"Validly married same-sex couples may file a joint DC Form 40," Spagnoletti wrote in an e-mail sent Monday to D.C.
Council member Jim Graham (D-Ward 1), who has assisted the couple.
Horvath said he and his partner, married June 25 in Somerville, Mass., considered the statement a victory, albeit a "small step."
"We are not just looking for the rights of same-sex marriage. We're also looking to share the same responsibilities as other married couples," said Horvath, who said he has been a board member of Federal Gay, Lesbian, Bisexual and Transgender Employees since 1994.
"I encouraged them to focus on applying current District law, not developing any new
law ... We're just exercising the rights that should be there now."
The couple has requested an extension and expects to file a joint D.C. return this week, Horvath said.
The couple might sue if the return is rejected, but Horvath said he hoped that would not be required.
The question of whether to recognize same-sex marriage has roiled gay politics in the District for more than a year.
Many activists argue that the city, which has one of the largest gay communities in the nation, should be at the forefront of the national debate.
Others argue that any effort by D.C. officials is doomed to reversal by the GOP-controlled Congress and could endanger existing strong domestic partnership provisions in the city.
"The fact that a group of citizens wants something does not obligate the District government to immediately jump, given the political realities," said Richard J. Rosendall, spokesman for the Gay and Lesbian Activists Alliance of Washington.
Williams has refused to state his position on the issue, citing divisions in the gay community.
"I'm getting pressure from people who are saying, 'Look, with the political situation we're facing nationally, why do we need to do this now?' "
Williams told the Washington Blade newspaper in an interview last spring. "And I'm facing, obviously, pressure from the other side, saying we needed to do this last week."
Activists who have been urging Williams to take a stand said his inaction seems to be forcing an unnecessary confrontation.
"This is an issue that was discussed ... prior to the election. It was felt there would be a case where someone married in Massachusetts would file in D.C.," said Peter Rosenstein, a member of the mayor's gay and lesbian task force.
"Obviously that's now happening. And the city will now have to deal with it."