Restraining order requested in legal battle with Nixon’s order on same-sex marriage, taxes

Jefferson City – Four Missouri taxpayers have filed a motion for a temporary restraining order (TRO) in Cole County Circuit Court, seeking to stop state officials from violating the state constitution by requiring combined tax returns from certain same-sex couples, pursuant to an executive order issued by Gov. Jay Nixon last fall.

The motion for a TRO is the next step in the legal process which started in January this year when the four plaintiffs filed a lawsuit naming the governor and his director of revenue, challenging Executive Order 13-14, which Gov. Nixon issued Nov. 14. The order directs the Director of Revenue to require Missouri combined returns from same-sex couples who were married in a state recognizing same-sex marriage, and who filed a federal joint return.

The lawsuit claims that the governor exceeded his executive authority when he issued the order because it violates Article I, Section 33, of the Missouri Constitution, commonly called the Missouri Marriage Amendment, passed by Missouri voters in 2004. The amendment says simply: “that to be valid and recognized in this state, a marriage shall exist only between a man and a woman.” The petition for declaratory judgment asks for “injunctive relief,” beginning with a TRO, and ending with a permanent injunction.

The TRO motion asks Judge Jon Beetem to order state officials to stop accepting combined returns immediately, except from persons lawfully married under Missouri law, until a full hearing on the lawsuit may be held. Such a full hearing might occur before or after the April 15 filing deadline for 2013 income tax returns.

A case management hearing in the case is set for March 28, at 9 a.m., in Cole County. The TRO motion is noticed up for that date, although it is likely that the judge will set a later date for a hearing on this and another pending motion.

A motion to intervene in the case has been filed by two St. Louis men, Ed Reggi and Scott Emanuel, both represented by the American Civil Liberties Union. (ACLU) Their motion states that the Attorney General who represents the State will not adequately represent their interests as a same-sex couple, married in Iowa, who want to file a combined return. They asked to intervene “as a matter of right” under Missouri Rules of Civil Procedure. This motion has also been noticed up for March 28.

Michael Whitehead, a Kansas City attorney for the plaintiffs, filed a brief opposing the intervention, saying he is confident the Attorney General will adequately represent the interests of citizens who support the executive order. Whitehead said the issues in the case are mostly about executive authority and the constitution, not just marriage law, so the Attorney General is the best representative. He suggested that the applicants may wish to participate by filing friend of the court briefs; or the applicants may join in a separate lawsuit filed by ACLU in Kansas City on Feb. 11, on behalf of eight same-sex couples married in other states, directly challenging the Missouri Marriage Amendment on equal protection and due process grounds. (They say it is commonly called the “Missouri Anti-Marriage Amendment.”)

The applicants/intervenors complain that plaintiffs suffer no real harm by allowing same-sex couples to file tax returns. Whitehead says that argument misconceives the constitutional law issue, and the policy behind combined returns under current law.

“Two close friends who live together, or two adult sisters who share a house cannot file a combined income tax return just because they love each other. A Missouri combined return is limited to a husband and wife, which under Missouri law is limited to a man and a woman. Promoting that unique relationship does not necessarily denigrate all other couples who cannot file combined returns.

“My clients’ objective is not to require anyone to pay more taxes or file more paperwork than they did before. Their objective is to require state officials to obey the state constitution and the laws.

“Even the Windsor case affirmed that the definition and regulation of marriage has been regarded as a virtually exclusive province of the States from the Nation’s beginning. (133 S. Ct. 2680) The People of this State have reserved this power to themselves, and it cannot be taken from them by executive orders of governors or presidents.”

The plaintiffs in the case are Kerry Messer, president, Missouri Family Network and legislative liaison for the Missouri Baptist Convention’s Christian Life Commission; Don Hinkle, director of public policy for the Missouri Baptist Convention and editor of The Pathway, the convention’s official newsjournal; Justin Mosher, pastor of Fifth Street Baptist Church in Hannibal and chairman of the Missouri Baptist Convention’s Christian Life Commission and Joe Ortworth, executive director, Missouri Family Policy Council, one of more than 30 such state organizations formally associated with Focus on the Family, the family support ministry founded by Dr. James Dobson.