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Lawsuit waiting

Of the 53 cases on the docket of the U.S. Supreme Court this session, the State of Kansas plays a role in 11 of them.

Granted, nine of the cases don't involve Kansas directly as the state merely filed briefs. The other two involve murder convictions.

But with a simple two-page guidance issued by the Kansas Department of Revenue last week, next year's Supreme Court docket will be sure to include a discrimination complaint that requires guidance from the nation's highest bench.

The guidance, identified simply as Notice 13-18, instructs same-sex married couples filing state income tax returns to continue doing so as individuals. The Revenue Department decided to rely on the Kansas Constitution, which was amended in 2005 to ban gay marriage by defining the act as possible between "one man and one woman only."

KDOR was responding to recent decisions by the Internal Revenue Service and the Treasury Department that said any legally married couple had to file federal tax returns as married individuals, regardless of where they lived. Thirteen states, plus the District of Columbia, recognize same-sex marriages. In order to resolve unequal treatment being applied once the federal Defense of Marriage Act was found unconstitutional earlier this year, the IRS ruled if a gay couple was legally married in Iowa but resided in Kansas, that couple needed to file federal tax returns as married.

The Kansas Department of Revenue ruling states that same hypothetical couple whose filing status is married for federal purposes must be single for state purposes. However, a heterosexual couple that married in Iowa and later moved to Kansas, would be required to file both federal and state tax returns as married.

That would seem hard to square with the Kansas Bill of Rights, which has equal rights as the very first provision: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness."

It also appears contrary to the wording of the constitutional amendment, which has two distinct components.

The first is the one man-one woman definition, which only applies to marriages in Kansas. Obviously, one state cannot dictate to another how any of its laws should be written. Kansas has no more business being able to define what constitutes a marriage in Iowa, than California has telling Kansas how it should be. Each state gets to make this particular decision -- at least for now.

It is the second part of the amendment that warrants closer inspection: "No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage." As written, and as understood by the U.S. Supreme Court, it would appear any legally married couple -- gay or straight -- are entitled to be recognized as such in Kansas. Same-sex couples would still be able to be banned from getting married in Kansas, but that will be a different legal battle.

It would appear the Kansas Department of Revenue is attempting to deny a right that currently is guaranteed by the state Constitution. Even a novice attorney would have a winning case for the taking. All it needs is two brave men or women to stand up and declare the discrimination Notice 13-18 attempts to legitimize.

Editorial by Patrick Lowry

plowry@dailynews.net