By Lori Montgomery
Washington Post Staff Writer
Wednesday, May 4, 2005
Married same-sex couples may not file joint tax returns in the nation's capital, the District's top tax official ruled yesterday, sparing the city the wrath of a Republican Congress but raising the specter of a legal challenge from its sizable gay community.
Chief Financial Officer Natwar M. Gandhi, responding to a query from two men married last year in Massachusetts, said D.C. law does not specifically forbid recognition of same-sex marriages. But it does provide that only taxpayers who file jointly under federal law may file jointly in the District.
Since the passage of the 1996 Defense of Marriage Act, federal law has defined marriage as the "legal union of one man and one woman." A married same-sex couple "may therefore not file a joint Federal income tax return" with the IRS, attorneys for the Office of Tax and Revenue wrote in an opinion posted on Gandhi's official Web site. Therefore, "the couple cannot file a joint or combined-separate income tax return under the District's income tax laws" either.
The ruling appears to defuse a controversy that erupted two weeks ago, when D.C. Attorney General Robert J. Spagnoletti advised the couple that they could file a joint return with Gandhi's office under D.C. law. Spagnoletti's statement drew a warning from Sen. Sam Brownback (R-Kan.), a leading opponent of same-sex marriage and the new chairman of the Senate appropriations subcommittee on the District. He said any attempt by D.C. officials to recognize same-sex marriage would trigger a backlash by Congress.
Gandhi's ruling appears to avoid that backlash, but it disappointed Edward G. Horvath and Richard G. Neidich, the couple who made the query. Horvath said yesterday that he has no immediate plans to sue the city but that he and Neidich "are open to consider anything" if legal experts think a case is worth pursuing.
Several gay activists said the ruling does little to answer broader, more fundamental questions about the legal status of gay married couples living in the District. They predicted that Spagnoletti and D.C. Mayor Anthony A. Williams (D) will face a welter of such queries regarding everything from health benefits to property rights until they state definitively whether the District will give legal recognition to same-sex marriages performed elsewhere.
"The real solution to this is for the attorney general of the District of Columbia to issue a legal opinion to advise people what their rights are if they feel they have a legitimate marriage," said D.C. Council member Jim Graham (D-Ward 1). "People don't like the fact that the genie is out of the bottle. But the genie is out of the bottle. This issue will not go away. And people need an answer to the question: 'Is my marriage valid here?' "
Forty states, including Virginia and Maryland, prohibit recognition of gay marriages or define marriage as the union of a man and a woman, according to the Human Rights Campaign, a gay advocacy organization. The District, which has a higher percentage of same-sex couples living together than any U.S. city except San Francisco, according to gay rights groups, has no such law. But its actions are subject to review by Congress, and some gay rights activists fear that conservatives on Capitol Hill could take away the city's domestic partnership benefits if D.C. officials move toward recognition.
More than a year ago, Spagnoletti did deliver an opinion on the subject to Williams, who has refused to release it, citing attorney-client privilege. Spagnoletti declined to be interviewed yesterday.
Since then, Williams has repeatedly ducked the issue. Williams spokesman Vincent Morris said yesterday he does not know when the mayor plans to release the opinion.
Though Spagnoletti is the city's lawyer and not the mayor's private counsel, his spokeswoman Traci Hughes said the attorney general cannot provide an opinion on the subject to a council member, a city resident or any other person without the mayor's consent.
The only other way to "gain access to the information," Hughes said, is for someone such as Horvath "to file suit."