About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


34 U.S.F. L. Rev. 465 (1999-2000)
Heterosexual Privilege and the Internal Revenue Code

handle is hein.journals/usflr34 and id is 475 raw text is: Heterosexual Privilege and the Internal Revenue Code By PATRICIA A. CAIN* sTEPHANIE WILDMAN HAS written persuasively about privilege, with a focus on the invisible systems of privilege people enjoy on the basis of their race, gender, or sexual orientation.1 In a 1995 article, she said: Heterosexuality is privileged over any other relationships. The words we use, such as marriage, husband, and wife, are not neu- tral, but convey this privileging of heterosexuality.'2 Laws that recognize only heterosexual marriage privilege heter- osexuals by indicating their relationships are more valuable than same-sex relationships. Gary Spitko has written about this expressive function of law in the case of intestacy statutes that fail to recognize any connection between lifetime partners of the same sex.3 Such laws cause harm that extends beyond the denial of a possible economic benefit, including the harm of stigmatization caused by the negative message. The Internal Revenue Code (Code) treats spouses differently from unmarried life partners.4 This is true no matter how financially and emotionally intertwined the unmarried partners are. This dispa- rate treatment of unmarried partners, however, is not always negative when assessing immediate economic benefits. Indeed, the tax treat- ment of spouses can often be worse than the treatment of unmarried couples in terms of the resulting economic benefits or burdens. The marriage penalty5 is a prime example of how tax rules can sometimes * Professor of Law, University of Iowa College of Law. 1. See STEPHANIE M. WILDMAN ET AL., PRIVILEGE REVEALED (1996); see also Stephanie M. Wildman, Democrative Community and Privilege: The Mandate for Inclusive Education, 81 MINN. L. REv. 1429 (1997); Stephanie M. Wildman & Adrienne D. Davis, Language and Silence: Making Systems of Privilege Visible, 35 SANTA CLARA L. REV. 881 (1995). 2. Wildman & Davis, supra note 1, at 887. 3. See E. Gary Spitko, The Expressive Function of Succession Law and the Merits of Non- Marital Inclusion, 41 ARiz. L. REv. 1063, 1064-66 (1999). For a discussion of the expressive function of law generally, see Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996). 4. See infra Part I.A.1. 5. See id.