Because the U.S. government doesn't recognize gay marriage, gay spouses will have to pay more income tax than heterosexual couples. The city would like to eliminate that inequity.

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Seattle officials want to provide a small, monthly payment to employees in same-sex marriages because they will pay higher federal income tax than married heterosexual couples on medical benefits.

Mayor Mike McGinn was poised to introduce legislation Wednesday to make up for the inequality created by the Defense of Marriage Act (DOMA), which bars federal recognition of gay marriage.

But late Tuesday, the City Attorney’s Office advised McGinn that that approach might not be legal.

“Based on this latest advice, we … are now evaluating our options for next steps in our work to help address these inequalities,” McGinn said in a statement.

The city estimates the tax differential to be about $90 per employee per month. The 2013 budget approved by the City Council in November includes $185,000 to address the tax difference.

Mayor Mike McGinn included the money in his 2013 budget recommendation to the council. At a news conference Tuesday morning, he said that providing what he called a “gay allowance for health care” is the right thing to do.

“If the federal government has an unjust law, it’s not fair to punish city workers,” McGinn said.

But the budget proviso was approved by the council without public comment or even widespread knowledge in the gay and lesbian community, said City Councilmember Tom Rasmussen.

City and state laws prohibit discrimination on the basis of sexual orientation. In trying to adopt a gay marriage-pay allowance, City Council sources said, the city may be violating those anti-discrimination laws.

Rasmussen, who is gay, questioned whether the city should spend public money to lower some people’s federal tax bill.

“We’ve fought discrimination in Seattle for decades. This discrimination is at the federal level. Should we as a city spend city taxpayer dollars? I question whether this is the best way to address it.”

Rasmussen said working at the federal level to repeal DOMA might be a better strategy.

The medical benefits received by the spouse of a gay city employee are considered income by the Internal Revenue Service and taxed. Married heterosexual couples aren’t subject to the additional tax, according to city staff.

Rasmussen said the city has about 150 gay employees, but the city doesn’t know how many of them may get married.

Council President Sally Clark, who is also gay, said she first raised the issue in 2007 at the request of a lesbian labor activist and another gay city employee.

She said the Council can’t implement the budget appropriation without legislation to authorize it. Any legislation will be complicated by labor contracts, current benefit plans, as well as state and federal laws, she said.

But, she said, the state’s approval of gay marriage in November paves the way for ending discrimination against gay and lesbian couples in federal taxes.

“What we said November 6 is marriage is marriage. This is a step we as a city could make.”

Lynn Thompson: 206-464-8305 or On Twitter @lthompsontimes.