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updated: 2/12/2014 11:03 AM

La. gay marriage lawsuit planned

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Associated Press

NEW ORLEANS -- A gay rights group plans a legal challenge to the Louisiana Constitution's prohibition against recognizing same-sex marriages performed legally in other states.

The Forum for Equality Louisiana and four gay married couples have called a Wednesday news conference on the issue.

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A draft of the group's planned lawsuit, obtained by The Associated Press, attacks the marriage recognition ban on several fronts.

For instance, it says state revenue department policy, based on the ban, essentially requires married same-sex couples who file joint federal tax returns to falsely claim they are single on state returns -- a violation, the Forum says, of free speech.

The lawsuit challenges the state's refusal to recognize both members of a same-sex union as parents of a child born to them or adopted.

A 2004 amendment to the Louisiana Constitution says marriage in the state "shall consist only of the union of one man and one woman," and goes on to prohibit state officials or courts from recognizing a marriage "contracted in any other jurisdiction which is not the union of one man and one woman." Currently, 17 states allow gay marriage.

The New Orleans-based Forum and the four couples plan to challenge the recognition ban, citing equal protection and free speech rights in the U.S. Constitution. Their decision follows months of legal research following the U.S. Supreme Court ruling that same-sex couples should get the same federal benefits as heterosexual couples. The June 26 decision struck down parts of the federal Defense of Marriage Act.

That ruling led to a series of federal policy announcements regarding same-sex unions. One that comes into play in the Louisiana case is the Internal Revenue Service policy allowing legally married gay couples to file joint federal tax returns, even if they reside in states that do not recognize same-sex marriages.

Louisiana law directs taxpayers to use the same status on state tax returns that they use on federal returns. Because of the state constitution's ban, the revenue department requires that a gay couple filing as married on a federal tax return must file a Louisiana return as single or head of household. "The taxpayer must provide the same federal income tax information on the Louisiana State Return that would have been provided prior to the issuance" of the IRS ruling, state Revenue Secretary Tim Barfield wrote last September.

That policy essentially forces married couples who file joint federal returns to face different tax liabilities than other married couples in the state, the Forum maintains. And it requires them to falsely deny their marital status, the lawsuit draft says.

The legal challenge also addresses other instances in which legally married gay couples are treated differently from married opposite-sex couples, noting that same-sex spouses are denied inheritance rights when one dies; and that only one parent in a gay marriage is recognized on a child's birth certificate, posing a host of potential problems for the non-recognized parent if, for instance, the child needs parental permission for medical treatment.

In another legal challenge in neighboring Mississippi, a woman is seeking to divorce the wife she married in California. She wants Mississippi to recognize the marriage so she can get the divorce.

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