Virginia to force married gay couples to file taxes as though they were single

The move is a break with an IRS directive on federal taxes, and in keeping with Virginia's record on LGBT rights

Published December 2, 2013 6:03PM (EST)

Ken Cuccinelli              (AP/Steve Helber)
Ken Cuccinelli (AP/Steve Helber)

Virginia is going to make filing taxes an even bigger pain for married gay couples in the state by requiring them to file state taxes as single individuals, even if they are jointly filing their federal tax returns. The Virginia Department of Taxation made the decision to continue its discrimination against gay couples in close consultation with Attorney General Ken Cuccinelli, who is awful on most things but has made himself particularly infamous for how awful he is on LGBT rights.

The move is just the latest in the state's “ongoing hostility toward lesbian, gay, bisexual and transgender Virginians, including legally married same-sex couples," the Virginia American Civil Liberties Union said in a statement on the decision.

Marriage equality groups have requested Gov.-elect Terry McAuliffe to follow in the footsteps of other governors like Missouri's Jay Nixon and, once in office, issue an executive order allowing couples who were married in other states to file joint state taxes. But, as the Washington Post notes, Virginia has a constitutional ban on marriage equality that bars governments from assigning “rights, benefits, obligations, qualities, or effects of marriage” to same-sex unions.

It's a challenge advocates are well aware of, but hope to work around. “I think we’ll certainly have conversations with Gov. McAuliffe’s office to change this for gay couples. But it is very difficult to get around these constitutional amendments,” said Brian Moulton, legal director for Human Rights Campaign.

More from the Washington Post:

Among other obstacles, the tax ruling in Virginia means couples must create artificial federal returns just to recalculate the state tax.

But Gastañaga and other civil rights advocates warn that the ruling will burden businesses, too.

Corporations that offer employee benefits such as health insurance can receive tax deductions on those contributions, declaring them business expenses. Employers can also take deductions for providing benefits to an employee’s spouse.

Before Windsor and the IRS’s ruling on same-sex couples, those federal tax deductions applied only to heterosexual married couples. Now, they apply to same-sex marriages, too. Yet Virginia may still tax benefits to same-sex couples because the state does not legally recognize their marriages. The Tax Department, in its bulletin, advised businesses to “adjust the deductions they claim for Virginia income tax purposes accordingly.”

“It really complicates things when you’ve got two different laws at the state level and the federal level and you have to think about all these things,” said Roberton Williams, an economist with the Tax Policy Center, which is a joint venture of the Urban Institute and Brookings Institution.

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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Equal Marriage Gay Rights Lgbt Rights Marriage Equality Taxes