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4 taxpayers challenge Nixon’s executive order allowing same-sex couples to file ‘married’ tax returns

Four Missouri taxpayers — including Jefferson City resident Don Hinkle and two others connected with the Missouri Baptist Convention — want the courts to reject Gov. Jay Nixon’s November executive order allowing same-sex couples to file combined income tax forms, if they also file joint federal returns.

A 10-page lawsuit filed Wednesday in Cole County Circuit Court argued Nixon’s executive order violated the state Constitution and failed to enforce existing state law, which both say Missouri’s public policy prohibits recognizing marriages other than those involving one man and one woman.

“Under the Missouri Constitution, laws that would result in official recognition of the validity of same sex marriage are unconstitutional,” Kansas City lawyer Michael K. Whitehead wrote. “It is the clearly stated public policy of Missouri law that a marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted.”

Nanci Gonder, Attorney General Chris Koster’s spokeswoman, said Thursday Koster and his staff couldn’t comment on the lawsuit’s specific claims because they had not yet received it.

However, she added: “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.”

Nixon spokesman Scott Holste also declined to comment on the lawsuit’s claims, but directed a reporter’s attention to the governor’s statement last November, when he issued the executive order.

“In August, following the (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,” Nixon said on Nov. 14, shortly before issuing his order. “That means that same-sex

couples legally married in another state but with income in Missouri now have an option to file joint federal returns.

“This affects us because Missouri is one of a number of states with a tax code that is directly tied to that of the federal government. In fact, as many of you know, your state tax liability here in Missouri is calculated using the adjusted gross income that you enter on your federal return.”

The governor’s executive order cited an Internal Revenue Service ruling that said the terms “spouse,” “husband and wife,” “husband” and “wife” now would “include an individual married to a person of the same sex if the individuals are lawfully married under state law.”

The IRS also said the word “marriage” now “includes such a marriage between individuals of the same sex.”

But, while noting that Nixon’s order cited a state law that “any term used … shall have the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes,” the lawsuit said the governor ignored the part of the same Missouri law that says “unless a different meaning is clearly required” by another state law.

And, the lawsuit said, Nixon’s order and some statements he made during a Nov. 14 news conference “have resulted in confusion for members of the public, including the plaintiffs, making it impossible to know exactly the potential loss of revenue to the state of Missouri.”

Implementing Nixon’s executive order is “an unconstitutional and wasteful expenditure of government resources that harms Plaintiffs as taxpayers of the State,” the lawsuit said.

The plaintiffs were identified in the case as Hinkle, who is public policy director of the MBC’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.

The case was assigned to Circuit Judge Jon Beetem. No hearing date has been scheduled.

The suit wants the court to declare the executive order and its implementation to be “unconstitutional and void,” and asks for attorney’s fees, expenses and costs.

A.J. Bockelman, executive director of the St. Louis-based group, PROMO, promised in an email to “work to ensure” the executive order is upheld.

Saying the plaintiffs “have no grounds to file this case,” Bockelman added: “Nixon’s pragmatic and reasonable order ensures that Missouri income tax law continues to mirror the federal Treasury and IRS. This order gives clear and equal guidance to all legally married couples in Missouri about how to complete their state income tax returns.”

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