Feminist theorist bell hooks wrote many years ago that if movements were to succeed in making the world better, they ought to pay attention to the plight of the most marginalized. Thus, in the interest of justice, and in keeping with the advice of bell hooks, my critique of the death tax is from the perspective of the marginalized taxpayer, the taxpayer whose position is almost never considered by Congress in the writing of tax legislation, nor by the IRS in the interpretation of tax legislation. My marginalized taxpayer is a gay or lesbian partner in a long-term committed relationship.

I critique from this perspective not to show that gay and lesbian couples are treated less favorably than married couples by the tax law. I assume that most people will agree with me that whenever a tax rule favors traditional families, it consequentially disfavors nontraditional families, who cannot meet the necessary definitional requirements to have the rule applied to them. For those of us who agree that equality is a good principle and that justice requires treating all families alike, we might critique the estate and gift tax laws against our notion of equality. We might, for example[,] take the position that nontraditional families should be treated the same as traditional families. That is, we might adopt the principle of formal equality.

But achievement of formal equality is not the goal of my critique. In part, formal equality is not my goal because I do not begin with the conclusion that the current treatment of traditional families is necessarily just.