Court considers joint tax filings from gay couples

JEFFERSON CITY, Mo. -- Officials don't know whether any same-sex couples have filed joint Missouri tax returns since Gov. Jay Nixon directed the Revenue Department last fall to permit it for those legally married in another state, a state attorney said Thursday in court.

Nixon in November ordered that the jointly filed tax returns be accepted. Same sex couples cannot marry in Missouri, and the state does not recognize same-sex marriages legally conducted in other states. But Missouri requires those filing joint federal tax returns to do the same for state taxes.

The federal government treats legally married couples the same regardless of their state of residence for tax filing purposes. Missouri has a constitutional ban on gay marriage.

Representatives of the Missouri Baptist Convention Christian Life Commission and the Missouri Family Policy Council have filed a lawsuit challenging Nixon's order. Cole County Judge Jon Beetem held a hearing Thursday over a request for a temporary restraining order to bar acceptance of combined state returns by those known to be not legally married in Missouri. But it would not require action for 2013 tax returns filed by April 15.

Beetem did not immediately rule on the request.

During the hearing, state Solicitor General James Layton said it is unknown whether same-sex couples have filed joint tax returns for 2013 or other tax years. He said tax officials focus on whether a joint federal return was filed, not marriage.

"There is nothing on the forms, nothing in the law that requires someone to submit information that would allow the director of revenue to look at a return and say, ‘Oh, that person is not married as recognized under Missouri law -- whether it's because they are of the same gender or some other reason," Layton said.

Layton, who works in the attorney general's office, said after tax returns are filed, they are checked to determine if they appear valid on their face. An audit can be completed later. He said the process has not changed since Nixon's order.

Mike Whitehead, an attorney representing the plaintiffs challenging the governor's order, said Nixon bypassed the voters and the Legislature. He said encouraging tax filers to do what has been allowed would mean wholesale violations of the Missouri Constitution.

Missouri in 2004 became the first state to enact a constitutional amendment prohibiting same-sex marriage after the Massachusetts Supreme Court permitted gay marriage in that state. Voters approved the ban with 70 percent of the vote.

"Every citizen of Missouri is damaged when the chief executive officer, the governor, has the power to give tax perks or tax benefits or tax deductions or tax credits to his political supporters," Whitehead said. "And that's the effect of what the governor's order would do if it's upheld as being constitutional. That's the harm every taxpayer suffers when its government operates without the rule of law."

The suit was filed by Kerry Messer, who is the founder of the Missouri Family Network; Justin Mosher, who is a pastor and chairman of the Christian Life Commission of the Missouri Baptist Convention; Don Hinkle, who is director of public policy for the Missouri Baptist Convention executive board; and Joe Ortwerth, who is the executive director of the Missouri Family Policy Council.

Tony Rothert, the legal director for the American Civil Liberties Union of Missouri, is representing a married same-sex couple who has intervened in the case. Rothert said without Nixon's action, his clients could have been in a position where they must violate a law.