March 26, 2014
FOR IMMEDIATE RELEASE
Contact Michael Whitehead
Jefferson City, MO - Four Missouri taxpayers have filed a motion for a temporary restraining order 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 the Executive Order 13-14, which Gov. Nixon issued November 14, 2013. 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 Friday, March 28, at 9 AM 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 Friday, 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 February 11, on behalf of 8 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, and it cannot be taken from them by executive orders of governors or presidents.”
For Immediate Release
Southern Baptists File Brief in Supreme Court Public Prayer Case
See Brief Here
WASHINGTON, August 2, 2013—Southern Baptist lawyers today warned the U.S. Supreme Court that judges acting as the “prayer police” risk committing the same errors that led to Daniel being thrown to the lions in the Bible.
The Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention (SBC), led by Dr. Russell Moore, president, filed a Friend of the Court brief in Town of Greece v. Galloway. The brief was drafted by attorneys Michael Whitehead, of Kansas City, Mo., and Jonathan Whitehead, of Lee’s Summit, Mo.
The case involves invocations prior to city council meetings in the New York town of Greece. Since 1999, volunteers opened monthly meetings with an invocation prayer, usually by local ministers. A federal district court ruled that the prayers were lawful.
The Second Circuit Court of Appeals later ruled that prayers may contain religious content, but worried that speakers would “convey their views of religious truth,” giving the appearance of a state religion. Thus, the Second Circuit required the town to police prayers to ensure a “neutral perspective among creeds.” The Court suggested that the town may need to offer prayers from various religions, including religions not present in the community. While it refused to prohibit invocations, the Court said “these difficulties may well prompt municipalities to pause and think carefully before adopting” them.
“In the Town of Greece case, private citizens are speaking, praying for a blessing on the proceedings of their city council,” said Moore. “The government doesn’t write the prayers, and doesn’t coerce anyone’s conscience. To object to this is to insist not only that the government be neutral to religious expression, but that the government be hostile to religious expression by citizens. We stand with those who believe in the freedom of speech, including religious speech, in the public square as a prized part of our liberty.”
The ERLC brief argued that government officials cannot be asked to police religious speech.
“Such impulses have existed for almost as long as prayers have been given,” says the brief, comparing the Second Circuit’s test to the rule created by Darius the Mede in the Book of Daniel. “There, too, public prayers were allowed, if directed to the government’s watered-down deity. It is a questionable improvement that the Second Circuit would punish prayers to the wrong gods by casting officials into a mere den of lawyers.”
“Parsing the words of a prayer is no business for federal judges,” Attorney Michael Whitehead commented. “Judges should leave the parsing to the parson. There should be a wall of separation protecting praying citizens from a government mandated civil religion.”
“Local governments reading the Second Circuit rule would decide that there is no safe way to comply. So instead of more speech at city hall, we get less – and religious freedom loses,” Whitehead continued.
This was the first amicus brief filed by the ERLC since Russell Moore became its president.
Michael Whitehead is in private practice in Kansas City, and serves as general counsel for the Missouri Baptist Convention. He was co-counsel in a 1981 victory before the U.S. Supreme Court on behalf of equal access for university students at the University of Missouri-Kansas City (UMKC) to use the student union for prayer and Bible study. More information about Michael Whitehead is available at www.thewhiteheadfirm.com.
Jonathan Whitehead is a litigator and religious liberty and nonprofit law expert from Lee’s Summit, Mo. He advises churches, charities and other nonprofit organizations regarding various legal issues. Information about Jonathan Whitehead is available at www.whiteheadlawllc.com.
The Southern Baptist Convention is America’s largest non-Catholic denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics and Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn. and Washington, D.C. More information about the Southern Baptist Convention is available at www.sbc.net. Additional information about the Ethics and Religious Liberty Commission is available at www.erlc.com.