Gay couples sue over Kansas tax filing policy

John Hanna, AP Political Writer

Topeka, Kan. (AP) — Two married gay couples in Kansas are suing to overturn a state policy preventing them from filing joint state income tax returns, arguing that the requirement is discriminatory and puts the couples "in second-tier" unions.

But the attorney representing the two couples said Tuesday that the lawsuit in Shawnee County District Court is not a broad attack on the refusal by Kansas to recognize same-sex marriages that are legally granted in other states. The Kansas Constitution says that the state can recognize only marriages between one man and one woman.

The lawsuit, filed Monday, alleges that the state Department of Revenue is violating state tax laws that tie the Kansas income tax code to the federal code, noting that the Internal Revenue Service recognizes unions from states in which gay marriage is legal, allowing joint filing. The lawsuit also says the state agency exceeded its authority by imposing what amounts to a new regulation without first seeking public comment or standard legal reviews.

The Department of Revenue issued a notice in October, "Guidance for Same-Sex Couples," spelling out the policy. It requires each person to file either as an individual or head of household. The lawsuit seeks a court injunction blocking the department from enforcing the policy and a ruling that the policy is discriminatory.

"Our lawsuit is specifically limited to the actions of the Department of Revenue," Brown said.

Filing the lawsuit were Michael Nelson and Charles Dedmon of Alma and Roberta and Julia Woodrick of Lawrence. Both couples were married in California.

Equality Kansas, the state's leading-gay rights organization, praised the lawsuit, saying the department had singled out married gay and lesbian couples for "unfair and illegal treatment."

"By requiring legally married same-sex couples to file additional tax forms and say they are not married on those tax forms, Kansas is penalizing and stigmatizing gay and lesbian Kansans," said Tom Witt, the group's executive director.

Department of Revenue spokeswoman Jeannine Koranda said in an email that the agency's notice follows the state constitution and Kansas law and, "Several other states that do not recognize same-sex marriage have published similar guidance."

The agency declined to comment further, saying it had not been formally served a copy of the lawsuit, which names the department and Secretary Nick Jordan as defendants.

According to gay-rights advocates in Missouri, that state is the first to accept joint income tax returns from gay couples who were married elsewhere even though Missouri does not recognize same-sex marriages or civil unions.

Robert Noland, executive director of the conservative Kansas Family Policy Council, which opposes same-sex marriage, said gay couples in Kansas have had to file individual tax returns previously. What's different, he said, is the U.S. Supreme Court decision this summer striking down a federal law denying benefits to married gay couples and the IRS' subsequent decision to have married gay couples file federal returns jointly.

"I don't think anything really changed for them at the state level," he said.

The state constitutional change blocking the state from recognizing gay marriage was approved by a 70 percent majority of voters in 2005. Noland said he believes most Kansans support the Department of Revenue's stance.

House Taxation Committee Chairman Richard Carlson, a St. Marys Republican, said he sees no reason to rewrite the state's tax laws ahead of a court ruling.

He also supports the department's policy and said, "I think we should abide by the will of the people of Kansas."

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The Gayly – January 2, 2014 @ 10:35am