Nate, Hartgen oppose IRS conformity bill on grounds it recognizes same-sex marriage

When the annual IRS conformity bill came up for a vote today in the House Revenue & Taxation Committee, there were two “no” votes, from Reps. Ron Nate, R-Rexburg, and Stephen Hartgen, R-Twin Falls. Both said they objected to a clause in the bill that noted that a clause in the Idaho Constitution, which has been invalidated by a federal court, states that only a marriage between one man and one woman should be recognized by the state of Idaho. Federal law – and now Idaho law, as well, as a result of court action – also recognizes same-sex marriage, which became legal in Idaho in October of 2014.

Rep. Mat Erpelding, D-Boise, said, “The remainder of this committee, I appreciate your yes vote and the fact that we maybe shouldn’t continue to live in the past. This is something that was decided many years ago, we’ve moved forward, it’s the law of the land.”

Last year, the House got into a big fight over the annual IRS conformity bill after Rep. Heather Scott, R-Blanchard, objected that the state shouldn’t conform with an IRS code that recognizes same-sex marriage while the state’s Constitution still contains the invalidated ban. The measure finally passed after GOP leaders inserted two paragraphs noting that Idaho still has the ban on the books, but that the 9 ^th Circuit U.S. Court of Appeals has invalidated it.

Hartgen said it was those paragraphs that drew his objection, even though he voted for the bill last year. “If it just said conformance generally, I probably wouldn’t have an issue with it,” he said after the vote. But he said, “I think the landscape has changed.” With a new Trump Administration likely to appoint Supreme Court justices with different views, Hartgen said he believes the U.S. Supreme Court will revisit the issue of same-sex marriage. “The court could very well return this issue to the states,” he said.

The annual tax conformity bill must be dealt with by lawmakers before Idahoans can file their state income tax returns, because Idaho’s state income tax uses the federal adjusted gross income as its starting point for Idaho calculations. If Idaho doesn’t conform, Idahoans would have to keep two sets of books – one for their federal taxes, and one for their state taxes, which would be based on different calculations.

Nate said, “This bill came up last year and there were concerns about whether or not we could vote for it and still uphold our oath to support and defend the Idaho Constitution as well as the U.S. Constitution. The bill still has the same problem as I see it.”

Nate said he recognized that the paragraphs in the bill have “been defended on grounds of the supremacy clause of the U.S. Constitution.” But, he said, “The supremacy clause says this Constitution, and all the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land. Now it says the Constitution is the supreme law of the land. It doesn’t say all U.S. laws are the supreme law of the land. It says all U.S. laws made in pursuance thereof. If we here in Idaho think that the laws or even the ruling of the Supreme Court is not constitutional, then we have an obligation and a duty to defend our state Constitution against those infringements.”

Hartgen sounded similar concerns. “States need to push back, it seems to me, against rulings that aren’t in the Constitution. This is an area to me that’s not in the Constitution,” he said.

Hartgen noted that Idaho voters approved the constitutional ban on same-sex marriage in 2006; it passed with 63 percent of the vote. “Is it a protest vote? In a way, yeah,” Hartgen said.

Last year, the second version of the IRS conformity bill passed the House on a 54-16 vote, with eight Republicans and eight Democrats voting “no.” Both objected to the two paragraphs stating that the Idaho constitutional ban on same-sex marriage still should apply for purposes of the state income tax, but then stating that notwithstanding that, it’s been overturned by the federal court. Both those paragraphs appear again in this year’s bill. Some House Democrats last year advocated removing the invalidated clause from the Idaho Constitution instead.