Judge ponders tax restraining order

To keep same-sex couples' joint income tax returns from being processed

Cole County Circuit Judge Jon Beetem is deciding whether to issue a restraining order that would prevent Missouri’s Revenue department from accepting or processing income tax returns from same-sex couples living in Missouri, who were married in other states that allow such marriages.

Almost a decade ago, 1,055,771 Missouri voters amended the state Constitution to say: “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.”

That was 70.6 percent of the 1,495,300 people who voted on the amendment in August 2004, while only 29.4 percent — or 439,529 people — voted against it.

Four men who worked to get that amendment passed want Beetem to issue the restraining order and then, later this year, change the order to a permanent injunction.

“Those who want to be law-abiding citizens of Missouri should follow the law and, if you’re married, file a combined return,” Kansas City attorney Michael Whitehead told Beetem near the end of an hour-long hearing Thursday afternoon. “But you’re not married in Missouri if you’re a same-sex couple.

“That should be the command of the law, and the plaintiffs (are) hurt any time our legal system does not enforce the legal rights and the legal responsibilities dictated by our Constitution.”

Whitehead filed a lawsuit Jan. 9 on behalf of the four men: Don Hinkle, public policy director of the Missouri Baptist Convention’s Executive Board; Kerry Messer of Fenton, who lobbies for the MBC’s Christian Life Commission and is a founder of the Missouri Family Network; Hannibal pastor

Justin Mosher, who is an officer of the MBC’s Christian Life Commission; and former state Rep. Joseph Ortwerth of St. Charles, executive director of the Missouri Family Policy Council.

They challenged Gov. Jay Nixon’s Nov. 14, 2013, executive order telling the state Revenue department to accept “combined” tax returns from same-sex couples who were married in another state, and who file federal forms as a “married” couple.

Whitehead told Beetem: “The plaintiffs contend that the governor put his thumbs on the scale of the political process and of the law, when he jumped ahead of the Legislature, to try to figure out how to make Missouri statutes conform to the (U.S. Supreme Court’s) Windsor versus United States decision.”

That Supreme Court case struck down part of the federal “Defense of Marriage Act,” but — Whitehead reminded the court — didn’t overturn the part that said states could establish their own definitions of what a marriage is.

“The governor has his point of view (and) his preferences about how the laws on marriage in Missouri should be interpreted (or) changed,” Whitehead argued, “but, for now, the (state) Constitution is clear. …

“To permit combined returns to be filed by the governor’s political supporters … as a matter of the rule of law, is wrong — and every citizen is harmed.”

But state Solicitor General James Layton disagreed.

“What’s missing from the discussion here is, what immediate and irreparable injury will occur during the time — the limited period — that a temporary restraining order would cover?” Layton asked Beetem. “We made the choice decades ago to simply say, ‘You file your federal (tax) return and then we will take whatever it is that the federal return says is your income (and) use that to calculate a Missouri personal income tax.’ …

“We don’t let people make one choice for federal taxes and then turn around and make a different choice for state taxes — it has to be the same.”

Last week, Beetem allowed the ACLU to intervene in the case.

Tony Rothert, the ACLU-Missouri’s legal director, told Beetem: “Federal law says they ‘must’ file as a married couple, because they are, lawfully, married. State law says their state return has to match their federal return.

“What are they to do — are they to violate federal law and pretend they’re single?”

He noted Missouri lawmakers have not tried to change the state law.

And, Rothert told Beetem, “Every single state and federal court judge that has addressed the issue since the Windsor ruling — and there have been 11 courts, some with multiple members — has reached the same conclusion, that states violate the 14th Amendment when they refuse to recognize people lawfully married in another state, because of their sex or sexual orientation.”

Among its five sections, the U.S. Constitution’s 14th Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

Beetem promised to rule as quickly as possible — but noted there will be more legal debate later.

“Please recognize that this is a temporary restraining order,” he said. “I’m not finding facts one way or the other.

“I’m simply deciding whether or not the equities are in favor of issuing some kind of temporary relief.”

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