The Missouri Family Policy Council, a group affiliated with the established anti-gay national group Focus on the Family, has with a number of other special interest groups filed a petition (.pdf) asking District Court Judge Jon Beetem to put an immediate stop to Democratic Governor Jay Nixon’s administration recognizing joint filings from married same-sex couples. The plaintiffs claim that unless Judge Beetem does as they ask, they will suffer “immediate and irreparable damage.”
This action stems from an executive order issued in November by Governor Nixon that attempted to reconcile Missouri tax filings with federal tax filing rules. The issue was created when, as of last year, the IRS announced that it would accept joint filings by married same-sex couples even if the state in which they currently reside does not recognize their marriages.
In the order, Nixon rightly pointed out that Missouri tax code relies on federal tax filing regulations. As such, while Missouri has a constitutional ban on same-sex marriages, Nixon’s administration determined that there is no barrier to joint tax filings by same-sex couples. Wrote Nixon in a release about the executive order:
“Missouri is one of a number of states whose tax code is directly tied to that of the federal government and under Missouri law, legally married couples who file joint federal tax returns with the IRS must also file joint state returns with our state Department of Revenue.
“As a result, accepting the jointly-filed state tax returns of all legally-married couples who file federal returns is the only appropriate course of action, given Missouri statutes and the ruling by the U.S. Department of the Treasury.”
The coalition of religious voices trying to put a stop to this say that the Governor is wrong. More than that, though, they contend in their court filing that the Governor has made a series of what are apparently impeachable offenses — quite separate from the court action Republican lawmakers are also pursuing impeachment proceedings against the governor. So, does the petition have merit? Even a casual glance says that they’re on shaky ground.
Plaintiffs say that the will of the people has been expressed and that Missouri’s gay marriage ban prevents the state government from recognizing same-sex couples for the purpose of filing taxes. Let’s take a look at the language of the gay marriage ban as passed in 2004:
That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.
That’s it. While some state constitutional bans do specifically prevent the state government from conferring recognition for things like joint tax filings, that’s not true of Missouri’s sparse ban, which as outlined above is a narrow one. The argument that it is the will of the people to limit this aspect of partnership recognition is suspect because the amendment makes no mention of this purpose. The court will therefore have to adjudicate whether it could reasonably be interpreted that the voting public believed that in so defining marriage they also meant to prevent same-sex couples filing joint tax returns. That sounds like a stretch.
Nevertheless, the petitioners then contend that Missouri’s tax codes do, however, limit the government from recognizing same-sex couples. Missouri’s tax code does not limit joint tax filings specifically to heterosexuals but instead follows the now gay marriage-accepting federal definitions. However, the petitioners note, there is a clause in the code that says that the state code will follow federal law “unless a different meaning is clearly required” by state law. The petitioners contend that because the code goes on to use the terms “husband” and “wife” where it refers to joint filing, the state definition should be given weight over the federal one. What’s more, they contend that the governor has effectively ignored this fact.
However, as above, there is nothing in the constitutional amendment that directly or even indirectly instructs on joint filing. The petitioners, then, seem to take it for granted that the amendment should apply in this manner and that Governor Nixon’s order was and is unconstitutional. However, there seems to be a gap between what they would like the law to say and what the letter of it in fact says.
The petitioners then say that, with this order, Governor Nixon circumvented the Legislature in allowing joint tax filings by same-sex couples and therefore committed an ultra vires act, or something that is beyond his power.
While the exact separation of powers should be the one for the courts to adjudicate, a reasonable argument could be made that Governor Nixon was in fact acting to clarify the current state of the law, to point out that there is currently no barrier to Missouri same-sex couples who were married elsewhere filing their state taxes in this manner. The order specifically does not recognize any new rights — as that is the domain of the legislature — and does not change the eligibility criteria for deductions or credits.
Now, as to the matter of “irreparable harm” the plaintiffs claim they will face should joint filings continue: they offer a scatter-shot of things they take exception to, but the crux of the matter seems to be that they as tax payers will face a financial burden if the state recognizes these joint filings. This is, at best, a stretch.
So what is really going on here? This filing actually seems to be working as a test case as the Religious Right attempts to strike back at the Obama administration for its having recognized same-sex marriage and the way in which this has severely undermined anti-gay marriage states.
We can probably expect to see more filings like this in other states where the state tax code follows federal definitions if the administration in charge dares to follow Governor Nixon’s lead, that or witness legislation hurtling toward governors’ desks so as to make it explicitly clear that the state’s gay marriage ban should apply for tax purposes. If ultimately the plaintiffs do somehow manage to win this first court round, the appeal could be very interesting because Governor Nixon will then be able to draw on the harm that the same-sex marriage ban causes in the state. It’s almost difficult to know what to hope for.
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