Missouri's four Catholic bishops - including the Rev. John Gaydos of the Jefferson City Diocese - said Friday Gov. Jay Nixon should "reconsider his executive order opening the door to re-defining marriage in Missouri law."
House Speaker Tim Jones, R-Eureka, on Thursday called on Nixon to "supply the legal opinion from Attorney General Koster providing the justification for the action he took ... in ignoring the Constitution of the State of Missouri."
But the governor told reporters Thursday that state law required his executive order telling the Revenue department to accept combined income tax returns from same-sex couples who also have filed joint federal returns.
"What we're doing today doesn't violate Missouri's Constitution," Nixon said during a news conference in his Capitol office. "This is not about the definition of marriage - this is about the structure of our tax code and Missouri law, which is clear."
Since Missouri's tax code directly ties the state's income tax reporting with the federal reporting, and requires "married couples who file joint federal tax returns (to) also file joint state returns," Nixon noted, "accepting the jointly filed state tax returns of ALL legally married couples who file joint federal returns is the only appropriate course of action - given Missouri statutes and a ruling by the U.S. Department of the Treasury. ...
"In August, following a U.S. Supreme Court decision invalidating part of the federal Defense of Marriage Act, the U.S. Department of the Treasury ruled that legally married same-sex couples would be treated as "married' for federal tax purposes, regardless of where the couple lives."
The governor said the Treasury department and IRS changed the income tax rules after the U.S. Supreme Court invalidated a part of the 1996 federal Defense of Marriage Act (DOMA).
Nixon acknowledged that the Missouri Constitution's Bill of Rights doesn't recognize same-sex marriage.
In August 2004, 1,495,300 of Missouri's 4,194,416 registered voters - about 36 percent - overwhelmingly approved a one sentence constitutional amendment, defining Missouri's policy: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."
Even though 16 other U.S. states have changed their laws and now allow same-sex marriages - and the U.S. Constitution requires each state to give "full faith and credit" to the public acts, records, and judicial proceedings of every other state - the 2004 Missouri amendment says the state doesn't have to recognize legal same-sex marriages in other states.
So far, that policy hasn't been challenged.
"The governor's job is to defend our state's constitution," Jones said in his Thursday afternoon news release, "not to surrender to the whims of the Obama administration.
"This executive order is nothing but an attempt to violate the voters' will, unlawfully ignoring a constitutional amendment to provide the governor's liberal allies a policy victory."
Jones wants Nixon to show an attorney general's opinion supporting the executive order, and state Rep. Chuck Gatschenberger, R-Lake St. Louis, said in a Friday afternoon news release he intends to ask Attorney General Chris Koster for an opinion "regarding whether or not the governor's unilateral decision via executive order is lawful."
Koster spokeswoman Nanci Gonder said Friday afternoon: "The Attorney General's Office has not been requested (yet) to provide an opinion. Nonetheless, Governor Nixon appears to be following the requirements of Missouri law on tax filing, as passed by the legislature.
"The attorney general's role is to defend such state laws to the extent possible, and not to presume that our legislature's actions violate our state's constitution."
The bishops' Friday statement said: "Governor Nixon's decision unilaterally and by executive fiat ignores the fundamental and longstanding uniqueness of marriage as the union between one man and one woman.
"His decision also circumvents and disregards the Missouri citizens who overwhelmingly voted in 2004 to define marriages for purposes of Missouri law as the union of one man and one woman."
The bishops also noted their Catholic teaching "respects the dignity of all people, including those with same-sex attraction," but "proclaims that marriage is the union of one man and one woman only."
The U.S. Constitution's Supremacy Clause, in Article 6, says the federal Constitution and laws "shall be the supreme law of the land, and the judges in every state shall be bound thereby," regardless of what a state's constitution and laws say.
But Tyler McClay, the Missouri Catholic Conference's general counsel, said Friday afternoon: "An IRS regulation would not trump the remaining valid provision of the federal DOMA statute that says no state is required to recognize the marriages of another state.
"Second, it is legally debatable as to whether a provision of the Missouri Constitution would be trumped by an IRS regulation."
Instead of following the IRS rule, McClay said, Nixon "should defend the Missouri Constitution and let that issue be debated."