Louisiana’s Secretary of Revenue has announced that married same-sex couples in the state will not be able to file joint tax returns despite Louisiana state tax law following federal tax regulations, which now recognize gay marriages.
A Louisiana state law requires that taxpayers use the same filing status on state tax forms as they do on federal tax forms.
For a state like Louisiana that has a constitutional amendment banning same-sex marriages, there had, until recently, been no problem: the federal government and the IRS didn’t recognize gay marriages either. Except they do now.
The IRS announced in late August that, per the Supreme Court of the United States ruling in the case Windsor v. United States, the federal Defense of Marriage Act’s Section 3 could no longer be enforced and therefore the last barrier for federal recognition of same-sex marriages had been removed.
As such, same-sex couples were instructed they could access federal benefits and file jointly regardless of whether their state recognizes their marriage so long as they have acquired a lawful marriage license from somewhere.
What does that mean for Louisiana’s same-sex couples, then? Should they be able to file jointly because the state tax law relies on conformity with federal tax regulations? In a word: no.
The Louisiana’s Secretary of Revenue Tim Barfield has decided all this means nothing because, he argues, the constitutional amendment to ban gay marriage which was enacted in 2004 trumps the state law that requires conformity and as such means that for tax purposes, same-sex couples in the state will still be required to file separately and still not be able to access tax-related state marriage benefits.
“Louisiana’s secretary of revenue is bound to support and uphold the Constitution and laws of the state of Louisiana, and any recognition of a same-sex filing status in Louisiana as promulgated in (the new Internal Revenue Service rule) would be a clear violation of Louisiana’s Constitution,” Barfield is quoted as saying in his guidance to taxpayers. “The taxpayer must provide the same federal income tax information on the Louisiana State Return that would have been provided prior to the issuance [of the IRS decision].”
In fairness to Barfield, when we take a look at the aforementioned Amendment 1, its language is fairly comprehensive (emphasis mine):
Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.
The state of Wisconsin, which has a similarly worded amendment, has also issued a roughly equivalent bit of guidance.
However, this creates an interesting issue and an opportunity for legal action: the federal Defense of Marriage Act’s Section 3 was ruled unconstitutional because it expressly discriminated against same-sex couples based on moral disapproval of their relationships and because it placed an undue burden on them by depriving them of the right to access more than 1,500 federal benefits.
That Louisiana and states like it will continue to burden same-sex couples when the highest court in the land has ruled that a federal gay marriage ban violates the U.S. Constitution would, it could certainly be argued, put the states on the back-foot and mean they are now, more than ever, vulnerable to the kinds of challenges the ACLU and other civil rights entities have been filing across the United States.
This comes just weeks after the Louisiana state guard, like those in Texas and Mississippi, announced that the state’s constitutional amendment prohibits it from providing married same-sex couples access to army and veterans benefits and privileges, instructing servicemembers that they would instead have to go to federal instillations if they wanted to file for recognition of their marriages. Oklahoma’s governor Mary Fallin has now instructed the state’s National Guard to end processing those benefits as well.
While this is incredibly vexing and even harmful to same-sex couples, there is the glimmer of light that at some point in the near future, such constitutional amendments could be toppled by the federal courts as a result of challenges brought about by decisions like these.
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