Missouri governor’s tax ruling for same-sex couples bypasses state’s DOMA – and now faces a lawsuit over it

January 13, 2014

Jay NixonI’ve previously written about the impact that last year’s U.S. v. Windsor Supreme Court decision would have on the legal status of same-sex marriage at the state level, both at the time of the decision at the end of June 2013, and as further developments later arose.

Specifically, I predicted that the Windsor majority opinion would serve as precedent for lawsuits challenging respective state-level same-sex marriage bans; so far, these lawsuits have been seeing some success.

What I didn’t foresee, however, was what is happening in Missouri.

It all began on November 14, 2013, when Governor Jay Nixon issued Executive Order 13-14, which ordered the Missouri Department of Revenue to adhere to the pertinent sections of the Missouri tax code by “requiring all taxpayers who properly file a joint federal income tax return to file a combined state income tax return.”

What does this have to do with same-sex marriage?

This order applies both to opposite-sex spouses and same-sex spouses.

Same-sex marriage is not recognized in Missouri; the state passed a defense of marriage act in 1996 and prohibited the state from issuing marriage licenses to same-sex couples and from recognizing such marriages memorialized in other states.  Because that law was apparently insufficient, the state also amended its constitution by popular vote on August 3, 2004 to only recognize heterosexual marriages.

Governor Nixon maintains that he is only following the law in issuing this order, since the Internal Revenue Service issued a ruling after Windsor recognizing same-sex marriages for tax filing purposes, “even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages. “

Missouri law requires that spouses “who file a joint federal income tax return shall file a combined [state] return.”

Thus, it seems that Governor Nixon is correct in that his ruling is in conformity with state law, right?

Not according to a group of conservative religious individuals who filed a lawsuit against the state last week claiming that Nixon’s executive order violated the state’s constitution.

According to the lawsuit, the order violates both state statute and the constitutional amendment that prohibits the state from recognizing same-sex marriages, even those “valid where contracted.”

In addition, the lawsuit argues that Nixon misapplies the law, in that the state statute that also states any term used in the relevant Missouri tax statutes “shall have the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes” also states that this is only “unless a different meaning is clearly required by [those same statutes].”

Specifically, the plaintiffs claim that the Missouri tax code uses “husband and wife” to refer to spouses filing taxes jointly, which, according to the lawsuit, clearly doesn’t apply to same-sex couples.  Except, according to the IRS’s ruling, it does:

For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex.

A court will naturally have the final say in the matter, but a court actually reaching the merits of this case is one of the least likely outcomes.  Instead, here are the most likely conclusions to the lawsuit in order of increasingly likelihood.

First, the case could get removed to federal court if the state responds with a removal request (since the plaintiffs are asking the rule to interpret a federal tax code ruling).  At this point, the state could easily argue that, assuming the executive order does run afoul of Missouri law, that such law is unconstitutional under Windsor.  In this scenario, it’s possible for the Missouri ban on same-sex marriage to be struck down as a result of the lawsuit.

Second, the case could be decided on the merits in Missouri state court (in which it was originally filed) in favor of the state.  This may serve as an invitation to other state governors to issue similar executive orders in their respective states if similar same-sex marriage bans are on the books.

Finally, and most likely, the court will rule that the plaintiffs lack standing to challenge the governor’s actions.  The only claimed injuries suffered by the plaintiffs are an alleged violation of their constitutional rights because, they argue, Nixon is disobeying the 2004 constitutional amendment, and a decrease in state tax revenue from allowing same-sex spouses the same tax benefits that opposite-sex spouses already enjoy.

It’s unlikely that a court will find such alleged injuries sufficient to establish standing, and dismiss the lawsuit.  As with the second scenario, this conclusion to the case would also serve as an invitation for other state governors to do as Governor Nixon has.  After all, who could stop it?

We’ll see exactly how this case unfolds in the coming weeks or months, but how it unfolds could have a major impact on the status of same-sex marriage in other states.