GLAD Files Amended Complaint in Gill Challenge

Nabors and Knight (Image from GLAD.)

On Friday, the Gay & Lesbian Advocates & Defenders filed its Amended Complaint (available here at GLAD’s site) in Gill v. Office of Personnel Management et al. There were two primary changes in the brief.  The first is the elimination of the “Passport Plaintiffs,” as this June’s actions by the President and Department of State rendered this portion of the lawsuit moot.  The second is the addition of “Tax Plaintiffs” Mary and Dorene Bowe-Shulman and Marlin Nabors and Jonathan Knight.  The Law Dork discussion of the original Complaint can be found here.

This filing was made with full awareness of the Justice Department’s response, defending the Defense of Marriage Act, in the Smelt case out of California.  As such, slight distinctions in wording were made for a reason, reasons that appear quite interesting.  Also, and as per GLAD, “As a result of the July 31 filing, the Department of Justice response will be due on or before September 18, 2009.”

So, what’s different?

The biggest distinction is that the Complaint now challenges the unequal taxation of same-sex partners’ health insurance benefits:

Plaintiff Mary Bowe-Shulman, whose employment provides her spouse and children with family health insurance coverage, also seeks an exclusion of the value of her spouse’s health insurance coverage from her federally taxable income, just as a person who is married to someone of a different sex receives that exclusion from federal taxable income when his or her spouse receives employer provided health insurance coverage.

The Bowe-Shulmans

Am. Compl., at para. 7.

The factual distinctions of the new plaintiffs are discussed below, but the end distinction is that the Complaint adds Count XI to address Nabor and Knight’s 2006 tax return, at paragraph 525; Count XII to address Nabor and Knight’s 2007 tax return, at paragraph 534; and Count XIII to address the Bowe-Shulmans’ taxation differential because of their single filing status and accompanying health-benefit discrimination, at paragraph 543.

As to the health-benefit issue, which was discussed back in June by Josh Rosenthal at Think Progress, Count XIII claims:

Mary and Dorene are forced to pay federal income taxes on the value of health insurance coverage provided by Mary’s employer to Dorene, which they would not pay if there were a similarly situated different-sex couple.

Am. Compl., at 550.

But, there’s more.  This Amended Complaint appears to more aggressively explain the burdens of DOMA on the Plaintiffs, who all married in order to “nurture and support” their family.  GLAD initially argued that: “However, DOMA, 1 U.S.C. § 7, burdens their ability to form and support their marriages and families and to raise their children.”  In the Amended Complaint, however, this argument has been exploded into several strong paragraphs that include the following language:

Although each of the plaintiffs is similarly situated to all other married or widowed persons in the Commonwealth of Massachusetts, DOMA, 1 U.S.C. § 7, requires the plaintiffs to deny the existence of their families and the nature of their familial relationships.  DOMA, 1 U.S.C. § 7, thereby causes confusion and complexity in a culture where people are expected to have one familial and marital status, whether dealing with private, state or federal entities.

. . . . Federal income tax law requires income tax returns to be signed under the pains and penalties of perjury, 26 U.S.C. § 7206, but DOMA, 1 U.S.C. § 7, forces the plaintiffs to make blatant misrepresentations about their families and their marital status.

Am. Compl., at 39-40.  Later, GLAD lays blame for this “unprecedented” action at the foot of Congress:

With regard to a gay or lesbian individual married to someone of the same sex, DOMA, 1 U.S.C. § 7, has overridden the longstanding deference of federal to state law in determining the marital status of an individual seeking the benefit or responsibility of any federal law triggered by a person’s state-established marital status, and categorically denies both rights and responsibilities.

Am. Compl., at 53.  When introducing the four reasons given by Congress for the passage of the Defense of Marriage Act, the brief now immediately responds, aggressively, to two of these.  As to defending “traditional heterosexual marriage,” the brief states:

The federal government’s refusal to recognize the plaintiffs’ marriages does not nurture, improve, stabilize or enhance the marriages of other married couples.  Nor would the federal government’s recognition of plaintiffs’ marriages degrade, destabilize or have any other deleterious effect on the marriages of other married couples.

Am. Compl., at 61.  As to the protection of the public fisc, the Complaint now states:

While the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families.  Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex.  Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.

Am. Compl., at 65.

Paragraphs 260-315 contain the facts particular to the new plaintiffs, including the amusing yet sad fact that Nabors and Knight, believing they would be rejected because of DOMA, filed amended 2006 and 2007 tax returns to make their new status “Married Filing Jointly.”  Discriminatory hilarity ensued.  The IRS, in error, approved the amended returns and issued the gay couple tax refunds for those years.  Then:

On May 20, 2009, counsel sent a letter to the IRS Andover Service Center on behalf of Marlin and Jonathan.  Counsel notified the IRS of the 2007 refund check already received and the expected 2006 refund check and stated that “[i]t is our understanding that the Taxpayers’ claim for a filing status change and refund should have been denied pursuant to DOMA, and we can arrange for the Taxpayers to return the refund check they have received.”

Am. Compl., at para. 277. The Complaint later states that the IRS has since “acknowledge[d] that both refund checks were issued in error.”  Nice.

Moral of the story: Discriminating is difficult.

The Bowe-Shulmans’ facts present the health-benefits discrimination story:

Each year since their marriage, Mary has been forced to pay additional federal income taxes on the value of the health insurance coverage she carries for Dorene.  The value of the health insurance coverage is added to Mary’s income as “imputed income,” forcing her to pay federal income tax on a typically nontaxable employee benefit, employer-provided spousal health insurance.

Am. Compl., at 304.

This is strong, and GLAD’s lawyers should be congratulated on some great improvements in the case with this filing.

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