RICHMOND, Va. — A Virginia lawmaker who authored the state’s constitutional ban on same-sex marriage, has proposed new legislation to change the Virginia state code to further define the tax benefits denied to legally married same-sex couples.
The bill, by Del. Bob Marshall (R-13), states “only those persons who are in a union that is a marriage recognized under Virginia law may file a joint Virginia income tax return for married persons or a separate Virginia income tax return as a spouse.”
Late last year, the Virginia Department of Taxation issued what some called “the most hateful” guidance in the country when it came to same-sex couples.
The Virginia guidance requires married same-sex couples to file as single, even though the IRS recognize their marriage and requires them to file as married. This requires complicated tax forms for LGBTQ families.
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Marshall’s bill would go a step further and codify this language.
“It is my considered judgment that we should do this in the very likelihood (Gov. Terry) McAuliffe is going to exercise some powers he doesn’t really have,” said Marshall, in a phone interview.
Mashall referenced the many failed attempts by legislators to get sexual orientation and gender identity into the state’s non-discrimination policy, and said McAuliffe’s signing of Executive Order #1, which extending the list of protected classes for state employees to include sexual orientation and gender identity, was an overreach of power.
Marshall’s bill aims to prevent McAuliffe from allowing married same-sex couples to file joint tax returns.
“He has no authority to do that, and I suspect, in order for him to follow through on the interests of some of his supporters, he’ll try to do that,” said Marshall.
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Marshall couldn’t say if he really would take the Governor to court over giving equal tax benefits to legally married same-sex couples, but he didn’t deny the possibility either.
Marshall took steps to reaffirm his stance by asking former Attorney General Ken Cuccinelli to write an opinion on the governor’s powers specifically when it comes to tax law.
In his non-binding opinion, issued on his last day in office, Cuccinelli said the Governor could not extend the benefits because of the state’s ban on same-sex marriage.
“Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution,” wrote Cuccinelli.
The Virginia ACLU said Marshall’s bill “would impose discriminatory tax policies on couples whose marriages are not currently recognized in Virginia even though the federal government has determined that all married couples should be treated the same for federal income tax purposes.”
