“This is a tax case. Fear not, keep reading.”

These are the opening words of Judge Kevin Newsom’s opinion for the court in Morrissey v. United States, 2017 WL 4229063 (11th Cir. Sept. 25, 2017).  What interested the court in the case were two issues:  whether the expenses that a gay man incurred to father children through in vitro fertilization are deductible medical expenses under section 213 of the Internal Revenue Code; and, if not, whether the denial of the deduction amounted to deprivation of equal protection of the laws.

The expenses were not deductible, the court held, because they were not “for the purpose of affecting any . . . function of the body.” Id. The opinion supported that conclusion with a fulsome “primer on the science of human reproduction.”  Nor was there any equal protection violation, because heterosexuals who used IVF were not entitled to deduct expenses, either, and because resort to IVF is not a recognized fundamental right.

So that’s what interested the court. What probably makes reading the case most worthwhile is that it represents the first extended sampling of the jaunty writing style of Judge Newsom, the newest member of the court.  With short sentences, sentence fragments, and contractions, it is informal and conversational, Posner-esque and Kagan-esque.  Somewhat curiously, given the subject matter and the informal style, the 25-page typewritten opinion nowhere uses the term “gay,” preferring the more clinical “homosexual.”

Judge Newsom clearly enjoys his new craft and we will “keep reading.”

Posted by Tom Byrne.

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