Robert D. Mueller - Page 7

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            issue in this case are a consequence, not a cause, of                                      
            petitioner’s nonmarried status, and thus do not burden the right                           
            to marry.  See Druker v. Commissioner, 697 F.2d at 50.                                     
                  The marital classifications at issue also do not affect                              
            petitioner as a member of a suspect class.  Petitioner claims                              
            discrimination not as a homosexual but as a person who shares                              
            assets and income with someone who is not his legal spouse.                                
            Petitioner therefore places himself in a class that includes                               
            nonmarried couples of the opposite sex, family members, and                                
            friends.  We are aware of no authority that would render such                              
            group a suspect class.4                                                                    
                  Under the rational basis standard, a challenged                                      
            classification is valid if rationally related to a legitimate                              
            governmental interest.  See City of Cleburne v. Cleburne Living                            
            Ctr., Inc., 473 U.S. 432, 440 (1985); City of New Orleans v.                               
            Dukes, 427 U.S. 297, 303 (1976).  In Kellems v. Commissioner, 58                           
            T.C. 556 (1972), affd. 474 F.2d 1399 (2d Cir. 1973), we addressed                          
            the constitutionality of the application of single return rates                            

                  4Petitioner claims that the Federal tax laws specifically                            
            began to target homosexuals as a group after the enactment of the                          
            Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419                            
            (1996).  That law defines “marriage” in any act of Congress                                
            (which would include the Federal tax code) as a legal union                                
            “between one man and one woman” as husband and wife.  The DOMA                             
            also defines the word “spouse” to mean only a person of the                                
            “opposite sex” who is a husband or wife.  We decline to pass on                            
            the constitutionality of the DOMA because it was not effective                             
            for the years at issue in this case.                                                       

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