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Abstract

In August of 2017, my lawyer presented our oral arguments to the Eleventh Circuit Federal Court of Appeals in Montgomery, Alabama, in my case against the Internal Revenue Service (IRS). The case involved the denial by the IRS of my family’s tax deduction for medical expenses related to in vitro fertilization (IVF) and surrogacy.

I am part of a same-sex couple, and the IRS has allowed medical expenses related to family formation for opposite-sex couples. Our treatment by the IRS seemed wrong under the statute, unfair generally, and even unconstitutional.

The government believed it had a strong case—that our medical expenses were not necessary, as they argued the relevant statute commands. The IRS official auditing our tax return was clear. Our decision to build a family as two gay men was merely our “choice,” he explained unabashedly, and all related expenses would not be subsidized by the United States government through the medical deduction provision.

This Article is a reflection on my experience. It will discuss my case: the facts, the law, and our arguments. It will describe our experience at the Eleventh Circuit in more detail and the way we were actually lampooned by Judge Newsom, a recent Trump appointee to the Eleventh Circuit.

The treatment of my case by the Eleventh Circuit represents a type of judicial decision-making that I label teleological instrumentalism. That technique refers to judges using decision-making techniques instrumentally to achieve the goal they think is appropriate as the outcome of any given case. Teleological instrumentalism builds on legal realism to acknowledge that human beings are inherently biased and bring that bias to every decision they make. Where jurists might claim to be relying on appropriate neutral decision-making techniques and frameworks, they are often merely justifying the outcome that they prefer in the dispute under consideration.

This Article will ultimately reflect on the teleological instrumentalist approach of the judges in reaching their decision to deny relief in my case. Finally, I will conclude with a call for federal judges to resist the inclination to follow their biases, implicit or otherwise, reject teleological instrumentalism, and embrace a principled, neutral approach to decision-making based on statutory and constitutional language, intent, context, and precedent.