On Friday, December 13, the Judge Waddoups, a district court judge in the District of Utah, held that Utah’s criminalization of polygamy was unconstitutional.[fn1] Partly, anyway.
More on that in a minute. I suspect that this opinion will reverberate throughout the blogosphere and the mainstream media, with the reporting displaying various levels of accuracy. The question I suspect won’t get much play, though, is, what are the tax consequences of this decision?
Fortunately, you’ve come to the right place. I have an article coming out in the next couple months in the Washington University Law Review (draft available here;[fn2] for a one-page summary, look at page 30 here) about the problems the federal income tax would face should it have to confront polygamous families.
So what are the tax consequences of the decision? There are none.
Utah’s bigamy statute, dating back to 1973, was really odd. Under the Utah Code, a person is guilty of bigamy when, knowing that she is married, or knowing that her partner is married, she “purports to marry another person or cohabits with another person.”
In Utah, polygamists tried to avoid criminal prosecution by only legally marrying the first wife; after that, they didn’t get a marriage license, and had their marriage solemnized in a purely religious ceremony with no legal efficacy. So, in 1973, Utah said, essentially, if you even claim that you’re married—if you hold yourself out as married—to a second person, we’ll consider that bigamy.
Among other grounds, Judge Waddoups found that this part of the bigamy statute unconstitutionally violated the Free Exercise clause of the 1st Amendment. On it’s face, the law applies to everybody, not just the religious. But in a telling exchange with the Utah Attorney General (starting around p. 61 of the opinion), the Attorney General concedes that he wouldn’t prosecute two people living together, even if one were married to someone else, and even if they promised to take care of each other for as long as they lived. But once it was blessed (by a Rabbi in the example), even if there were no license and no risk of state recognition, he would prosecute.
As applied, then, the statute was not neutral. And this lack of as-applied neutrality rendered the provision unconstitutional.
To understand the tax consequences, it’s important to understand what the opinion did not do. It did not require Utah to recognize and license polygamous marriages. It did not even decriminalize polygamy (though Judge Waddoups expressed significant skepticism over the continuing viability of the Supreme Court’s decision in Reynolds, which held that 19th-century Mormons did not have a Free Exercise right to practice polygamy). It only held as unconstitutional that part of Utah’s bigamy statute that criminalized a married individual living with others as spouses.[fn3]
The federal income tax looks to state law to determine marriage. A couple who live together unmarried cannot file a joint return for federal income tax purposes. Likewise, a polygamous family who all live together, but who are not legally married, cannot file a joint return.[fn4]
In practice, as I understand it, the first paring in a (fundamentalist Mormon, at least) polygamous household get married under the law. If this is true, they must file as married individuals, whether they file jointly or separately. All of the other spouses must file as unmarried individuals (though head of household status may, in some situations, be available to them). That’s how it was on Thursday, and that’s how it will be next Monday.
Cross-posted to What We Pay for Civilized Society.
[fn1] In a stunning, thorough 91-page opinion. Seriously, what was the last judicial opinion you read that extensively cites Edward Said in discussing the orientalist underpinnings of a 19th-century Supreme Court decision?
[fn2] Note that the draft predates the Windsor decision; I’ve updated all of the DOMA stuff.
[fn3] Here it’s worth noting, per the opinion (because I don’t know Utah law) that Utah has no common law marriage. (It does, however, have this weird provision by which a court can declare a couple that hold themselves out as married to be married. Judge Waddoups was also deeply skeptical of this provision.)
[fn4] With section 3 of DOMA declared unconstitutional, however, if a state were to legalize polygamy, the federal government would likely (because Windsor is kind of vague: it claims to find DOMA unconstitutional, but it only discusses section 3; moreover, it only discusses same-sex marriage, meaning that, although it is probably also unconstitutional with respect to polygamy, it may not be) have to recognize their marriage. Which, as I describe in my article, would be a mess until Congress fixed the tax code.