2:14-cv-02518 #117

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KAIL MARIE, et al.,

Plaintiffs,

v.

SUSAN MOSIER, M.D., in his official capacity as Secretary of the Kansas Department of Health and Environment, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

Case No. 14-cv-2518

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS

Preliminary Statement

Plaintiffs seek the freedom to marry and to have their marriages recognized by Kansas

officials on equal terms with all other legally valid marriages. Plaintiffs are not claiming “a

laundry list of special privileges.” Doc. 115, Response of Defendants to Plaintiffs’ Motion for

Summary Judgment (hereafter “Def. Response”) at 2. Nor do Plaintiffs’ claims amount to

commonplace tax, name change, or health insurance disputes. Instead, Plaintiffs seek to compel

Defendants (and the State of Kansas generally) to treat them equally in terms of marriage rights

and recognition. “[T]he right to equal treatment guaranteed by the Constitution is not co-

extensive with any substantive rights to the benefits denied the party discriminated against.”

Heckler v. Mathews, 465 U.S. 728, 739 (1984). As a result of KAN. CONST., art. 15, § 16, Kan.

Stat. Ann. § 23-2501, and Kan. Stat. Ann. § 23-2508, all of the Recognition Defendants

(Defendants Mosier, Jordan, Kasper, and Michael) are refusing to treat Plaintiffs’ marriages as

legally valid under Kansas law. And as a result of those same provisions, the Defendant Court

Case 2:14-cv-02518-DDC-TJJ Document 117 Filed 04/27/15 Page 1 of 31

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Clerks (Defendants Lumbreras and Hamilton) would be refusing to issue marriage licenses to

Plaintiffs but for this Court’s preliminary injunction. Under binding precedent from the Tenth

Circuit, the Kansas laws that prohibit same-sex couples from marrying and deny recognition of

their marriages are facially unconstitutional. Nothing in Defendants’ opposition – and nothing

that they have uncovered through discovery – can change those simple facts. Plaintiffs are

entitled to summary judgment.

Facts

Defendants’ Response to Plaintiffs’ Statement of Material Facts

Briefing related to a motion for summary judgment “must begin with a section that

contains a concise statement of material facts as to which the movant contends no genuine issue

exists.” D. Kan. R. 56.1(a). In turn, a party opposing a motion for summary judgment must

directly contest the movant’s statement of undisputed material facts:

(b) Opposing Memorandum.

(1) A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant’s fact that is disputed.

(2) If the party opposing summary judgment relies on any facts not contained in movant’s memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above. All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party.

D. Kan. R. 56.1(b). “All responses [to statements of undisputed material facts] must fairly meet

the substance of the matter asserted.” D. Kan. R. 56.1(e). “The rule does not permit blanket,

indiscriminate denials of a movant’s asserted facts[.]” Wisner v. Unisys Corp., 917 F. Supp.


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1501, 1504 (D. Kan. 1996). Nor does the rule permit conclusory or undocumented denials.

Federal Deposit Ins. Corp. v. Cent. Air Control, Inc., 785 F. Supp. 898, 900 (D. Kan. 1992). See

also Mahaffie v. Potter, 434 F. Supp. 2d 1041, 1044 (D. Kan. 2006) (denial that “does not cite

any record support” fails to comply with rule). This Court’s local rules have so required for

many years, and the judges on this Court have long held that when “Defendants’ response does

not comply with this rule . . . [movant’s] statement of uncontroverted facts is deemed admitted.”

Federal Deposit Ins. Corp., 785 F. Supp. at 900.

In this case, Defendants have frequently “controverted” specific paragraphs in Plaintiffs’

Statement of Undisputed Material Facts (hereafter “Plaintiffs’ Fact Statement”), Doc. 85, pp. 1-

14, without properly referring to “those portions of the record upon which the opposing party

relies.” D. Kan. R. 56.1(b)(1). In addition, many of Defendants’ responses to Plaintiffs’ Fact

Statement improperly rely on argument or facts that are irrelevant to controverting the fact at

issue. For example, in paragraph 12 of Plaintiffs’ Fact Statement, Plaintiffs assert that “Plaintiffs

Marie and Brown and Plaintiffs Wilks and DiTrani meet all of the requirements Kansas imposes

for the issuance of a marriage license except that these Plaintiffs want to marry a person of the

same sex.” Doc. 85, p. 4, ¶ 12. Defendants have responded with a lengthy discourse on the

failure of these Plaintiff couples to return to the clerks’ offices to obtain marriage licenses after

the Court entered the preliminary injunction. Doc. 115, pp. 5-6, ¶ 12. Defendants’ response does

not fairly meet the substance of Plaintiffs’ asserted undisputed material fact and, thus, under D.

Kan. R. 56.1(b)(1), is deemed admitted.1

1 Defendants’ response to paragraph 12 also asserts that Plaintiffs Marie and Brown “will not do so [marry] after the litigation is completed if all of the requested relief is not granted and even private organizations that are not parties begin to recognize same-sex marriage.” Doc. 115, p. 6, ¶ 12. The deposition transcripts cited by Defendants fail to support this allegation. The only mention of “private organizations” and the recognition of marriage appears in the deposition of


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In addition, Defendants’ responses to paragraphs 29 and 30 of Plaintiffs’ Fact Statement

fall short of the requirements of D. Kan. R. 56.1(b). In those paragraphs, Plaintiffs describe the

Kansas Department of Revenue’s Notice 13-18, in which KDOR has advised same-sex married

couples that they cannot file Kansas income tax returns as “married.” Doc. 86, p. 8, ¶¶ 29 & 30.

Rather than responding fairly and directly to the substance of those paragraphs, Defendants

provide an irrelevant argument that “[t]he tax notice relied upon by plaintiffs would not impose

any paperwork burden on plaintiffs in addition to what a similarly situated heterosexual couple

would provide.” Doc. 115, p. 10, ¶¶ 29 & 30. See also Plaintiffs’ Fact Statement, Doc. 86, p. 9, ¶

32 (same response by Defendants). Because these responses fail to comply with the

requirements of D. Kan. R. 56.1, allegations of undisputed material fact in ¶¶ 29, 30 and 32 of

Plaintiffs’ Fact Statement are deemed admitted.

Moreover, in paragraphs 35 through 38, Plaintiffs refer to various Kansas statutes

pertaining to the issuance of drivers’ licenses and name changes on drivers’ licenses. Doc. 86,

pp. 9-10, ¶¶ 35-38. Defendants respond to each paragraph with a claim that “[t]he paragraph

misstates the substance of the referenced laws” and with argument. Doc. 115, pp. 11-12, ¶¶ 35-

38.2 Similarly, Defendants respond to paragraphs 40 through 46 (in which Plaintiffs set forth

Plaintiff Brown, Doc. 115-8, 27:24 to 23:11, in which a brief, off-the-cuff exchange appears regarding Blue Cross & Blue Shield. That is insufficient to establish the broad assertion that Plaintiffs Marie and Brown will not marry in Kansas until “private organizations that are not parties begin to recognize same-sex marriages.” Defendants made similar responses to paragraphs 2 and 3 of Plaintiffs’ Fact Statement, in which Plaintiffs set forth background facts regarding the relationships of Plaintiffs Marie and Brown and Plaintiffs Wilks and DiTrani, including statements that those couples “wish to marry each other in Kansas.” Doc. 85, ¶¶ 2 & 3. Defendants’ efforts to controvert those facts and to suggest that these Plaintiff couples do not intend to marry once this litigation concludes is unsupported by Defendants’ citations to the record and thus falls short of the requirements of D. Kan. R. 56.1. 2 In ¶¶ 35 through 38 of Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts, Defendants also refer to “DL documents produced in response to defendants’ requests for production.” But Defendants have not cited to any place in the record where such documents


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facts pertaining to their name change claims) and to paragraphs 50 and 54 through 58 (in which

Plaintiffs set forth facts pertaining to their state employee health insurance claims) with

argument and irrelevant details. Doc. 115, pp. 13-16, ¶¶ 40-46, 50, and 54-58.3 Stating that a

party has misstated or mischaracterized laws is insufficient to controvert statements of

undisputed material facts in accordance with D. Kan. R. 56.1. Mondaine v Am. Drug Stores, Inc.,

408 F. Supp. 2d 1169, 1176 n.1 (D. Kan. 2006). In addition, responding to a statement of

undisputed facts with argument falls short of the requirements of D. Kan. R. 56.1. Jackson v.

Yellow Logistics, 24 F. Supp. 2d 1206, 1209 (D. Kan. 1998). Because Defendants’ responses to

paragraphs 35 through 38, 40 through 46, 50, and 54 through 58 fail to comply with the

requirements of D. Kan. R. 56.1, the allegations of undisputed material fact contained in those

paragraphs are deemed admitted.

exist. Certainly, there are no driver’s license documents in the hundreds of pages of depositions, discovery responses, and other documents that Defendants have attached to their Response to Plaintiffs’ Motion for Summary Judgment. See Doc. 115-1 through 115-17 and Doc. 116-1 through 116-10.

3 In attempting to controvert the fact that Plaintiffs Bohneblust and Hickman changed their last names to Pottroff and Spain, respectively, on their Kansas marriage license, Defendants rely upon the affidavit of Tim Parks, a public services administrator with the Kansas Department of Revenue’s Division of Vehicles who “oversee[s] driver’s license examination operations for the State of Kansas.” Doc. 115-4, ¶ 1. In his affidavit, Mr. Parks states that “K.S.A. 23-2506 does not provide a method for obtaining restoration of a premarital surname that was used prior to an earlier marriage.” Id., ¶ 3. But Mr. Parks’s testimony constitutes an improper legal conclusion about whether a particular name change is permitted by Kan. Stat. Ann. § 23-2506 and is thus inadmissible opinion testimony. Specht v. Jensen, 853 F.2d 805, 810 (10th Cir. 1988) (en banc) (“In no instance can a witness be permitted to define the law of the case”), cert. denied, 488 U.S. 1008 (1989). “[I]t is axiomatic that the judge is the sole arbiter of the law and its applicability.” Id., 853 F.2d at 807. In Kansas, courts interpret the meaning of statutes. “‘It is emphatically the province and duty of the judicial department to say what the law is.’” Auditor of State v. AT. & S.F. Railroad Co., 6 Kan. 500, 506, 1870 WL 507 (1870) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). For these reasons, Mr. Parks’ affidavit cannot controvert Plaintiffs’ facts.


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For all of these reasons, in attempting to controvert Plaintiffs’ Fact Statement, Defendants

have failed to comply with the clear requirements of D. Kan. R. 56.1. Thus, Plaintiffs’ facts

should be deemed admitted.

Plaintiffs’ Response to Defendants’ Statement of Additional Facts

1. Undisputed.4

2. Undisputed.

3. Undisputed.

4. Plaintiffs do not dispute Defendants’ characterization of the health insurance

claim of Plaintiffs Peters and Mohrman in the first sentence of paragraph 4, but Plaintiffs dispute

the characterization of the tax return claim of Plaintiffs Peters and Mohrman. With regard to that

claim, Plaintiffs contend that Kansas’s refusal to permit married same-sex couples to file state

income tax returns as “married” based on the Kansas laws prohibiting the recognition of same-

sex marriage injures the dignitary rights and interests of Plaintiffs Peters and Mohrman in

violation of the rights to equal protection and due process guaranteed by the United States

Constitution. This is not a contest about “joint” returns or paperwork burdens.

5. Undisputed.

6. Undisputed.

7. Plaintiffs do not dispute that they are not challenging 28 U.S.C. § 1738C (1996).

Plaintiffs do, however, dispute Defendants’ legal assertion that 28 U.S.C. § 1738C “allows a

state to give no effect to another state’s recognition of a same-sex marriage.”

8. Undisputed.

4 Plaintiffs contend that many, perhaps most, paragraphs in Defendants’ “Statement of Additional Material Facts That Appear Without Controversy” are immaterial to the issues raised by Plaintiffs’ First Amended Complaint, Doc. 52, and Motion for Summary Judgment, Doc. 85.


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9. Plaintiffs do not dispute that they are not challenging the constitutionality of laws

prohibiting underage marriages. The constitutionality of such laws is a legal question, not a

question of fact.


prohibiting incestuous marriages. The constitutionality of such laws is a legal question, not a

question of fact.


prohibiting bigamous marriages. The constitutionality of such laws is a legal question, not a

question of fact.

12. Controverted. Plaintiffs Marie and Brown and Plaintiffs Wilks and DiTrani

intend to re-apply for marriage licenses and to marry in Kansas once this lawsuit is concluded.

Second Decl. of K. Marie, ¶ 7, Doc. 86-6; Second Decl. of M. Brown, ¶ 6, Doc. 86-7; Second

Decl. of K. Wilks, Doc. 86-8, ¶ 6; Second Decl. of D. DiTrani, Doc. 86-9, ¶ 6. The deposition

transcripts cited by Defendants do not support the assertion that these Plaintiff couples “do not

plan to obtain licenses if all the relief sought by every plaintiff is not granted by the Court and

affirmed on appeal.”5

13. Undisputed that Plaintiffs Wilks and DiTrani participated in a commitment

ceremony in Wichita in 2012 that was attended by friends and family, but Plaintiffs controvert

the allegation that Plaintiffs Wilks and DiTrani “have introduced one another as legal spouses.”

Plaintiff Wilks testified that she has introduced Plaintiff DiTrani as her “partner” or “wife.” Doc.

115-11, Wilks Depo. at 20:18-19. That does not make the Plaintiff couple “legal spouses.”

5 Defendants often cite only to pages in the deposition transcripts and fail to specify particular lines that support Defendants’ assertions of fact as required by the Rules.


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14. Controverted. Whether Kansas law prohibits people married in another state from

marrying their present spouses in Kansas and whether Plaintiffs Bohnenblust and Hickman

entered into a common law marriage in Arkansas in 2000 are questions of law, not fact. In

addition, Plaintiffs specifically dispute that Plaintiffs “Bohnenblust and Hickman entered into a

common-law marriage in Arkansas in 2000” because “[c]ommon law marriages may not be

created by law in Arkansas[.]” Brissett v. Sykes, 855 S.W. 2d 330, 332 (Ark. 1993). Plaintiffs do

not dispute that Plaintiffs Bohnenblust and Hickman were married in a formal ceremony in

Kansas in November 2014.

15. Undisputed.

16. Controverted that Plaintiff Peters “was told that the Board of Regents had decided

not to change the rules concerning insurance for same sex spouses until the dispute was finally

resolved in the courts.” The cited deposition testimony does not support this assertion of fact.

Plaintiff Peters testified that, in discussing whether he could add Plaintiff Mohrman as his

dependent spouse on his state employee health insurance, a human resources specialist at the

University of Kansas told him that an e-mail came from “the Board of Regents saying that we

should not recognize same sex marriages at this time.” Doc. 115-13, Peters Depo. at 26:13-18.

17. Undisputed.

18. Undisputed.

19. Undisputed.

20. Undisputed.

21. Controverted that Plaintiff Carrie Fowler Braun “did not present any of the

paperwork required by Kansas law to obtain a new driver license in a name other than Carrie

Fowler. (Fowler/Braun depo. at pp. 26-28).” In fact, Plaintiff Fowler Braun testified that she


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brought to the DMV the documents specified on the KDOR website for changing a name on a

Kansas driver’s license, specifically her current driver’s license and her Illinois marriage license.

Doc. 115-14, Carrie Braun Depo. at 28:1-5 & 29:12-16. The KDOR website advises people

wanting to change a name on a driver’s license to “Present ONE original document to establish

name change” and lists a marriage certificate, divorce decree, order of adoption, or court order of

legal name change as acceptable documents for that purpose. See

http://www.ksrevenue.org/dmvproof.html (last checked April 15, 2015).

22. Undisputed.

23. Undisputed.

24. Undisputed.

25. Controverted in part. Plaintiff Bohnenblust testified that the ceremony conducted

in Arkansas in 2000 did not result in a legal marriage. Doc. 115-16, Darci Bohnenblust Pottroff

Depo. at 24:25 to 25:7. Plaintiffs do not dispute that Plaintiffs Bohnenblust and Hickman

obtained a marriage license in Riley County, Kansas, in November 2014, and – as part of the

marriage license process – changed their last names to Pottroff and Spain, respectively.

Plaintiffs do not agree with Defendants’ characterization that “[t]heir marriage licenses indicated

on it that each of them desired to restore their former surnames of Pottroff and Spain.”

26. Controverted in part. Plaintiffs do not dispute that, in November 2014, Plaintiffs

Bohnenblust and Hickman went to the DMV office in Manhattan, Kansas, and sought to use a

certified copy of their marriage license, in accordance with Kan. Stat. Ann. 23-2506(d), to

change their names on their driver’s licenses to comport with the new last names each Plaintiff

took as part of the Kansas marriage licensing process. The cited deposition does not support


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Defendants’ assertion that “Neither Darci nor Joleen want[s] to file a civil name petition or a

motion for restoration in their divorce proceedings because they don’t want to pay for a lawyer.”

27. Undisputed.

28. Undisputed.

29. Undisputed.

30. Undisputed.

31. Undisputed.

32. Undisputed.

33. Undisputed.

34. Undisputed.

35. Undisputed.

36. Undisputed.

37. Undisputed.

38. Undisputed.

39. Undisputed.

40. Controverted. Under Kansas law, both district court clerks and district court

judges are authorized to issue marriage licenses; the statutory language is written in the

disjunctive. See K.S.A. § 23-2505(a).

41. Controverted. As the court found in the preliminary injunction decision, “the

issuance of marriage licenses under Kansas law is a ministerial act, not a judicial act.” Doc. 29,

Marie v. Moser, Case No. 14-cv-2518, slip op. at 14 (D. Kan. Nov. 4, 2014).

42. Undisputed that Kansas law provides a role for judges but not clerks in

authorizing underage marriages.


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43. Undisputed.

44. Undisputed that K.S.A. § 23-2505(d) permits a district court judge or clerk to

administer oaths as part of the marriage licensing process, but an oath is not absolutely required

by statute. The statute is written in the permissive.

45. Undisputed.

46. Undisputed.

47. Undisputed.

48. Undisputed.

49. Undisputed.

50. Undisputed.

51. Undisputed.

52. Undisputed.

53. Undisputed.

54. Controverted in part. Plaintiffs do not dispute that Plaintiffs Wilks and DiTrani

spoke to Judge Fleetwood. However, the portion of the deposition transcript to which

Defendants cite does not support the allegation that “Wilks and DiTrani were referred to Judge

James Fleetwood.”

55. Undisputed.

56. Undisputed.

57. Undisputed.

58. Undisputed.

59. Undisputed.

60. Undisputed.


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61. Undisputed.

62. Undisputed.

63. Undisputed that Chief Judge Fairchild issued Administrative Order 14-13 on

October 8, 2014. The administrative order speaks for itself, and Plaintiffs do not agree with

Defendants’ characterization of the order.

64. Undisputed.

65. Undisputed.

66. Undisputed.

67. Undisputed.

68. Undisputed.

69. Undisputed.

70. Undisputed.

71. Undisputed.

72. Undisputed.

73. Undisputed. The order issued by the Kansas Supreme Court on October 10, 2014,

in State ex rel. Schmidt v. Moriarty, Case No. 112,590 speaks for itself.

74. Undisputed.

75. Undisputed.

76. Controverted. Plaintiffs Marie and Brown returned to the office of the Clerk of

the Douglas County District Court on October 16, 2014, and were denied a marriage license.

Doc. 86-6, Second Decl. of K. Marie, ¶ 6; Doc. 86-7, Second Decl. of M. Brown, ¶ 5. Plaintiffs

Marie and Brown have not returned to the Clerk’s office since that time to attempt to pick up a

marriage license.


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77. The order issued by the Kansas Supreme Court on November 18, 2014, in State ex

rel. Schmidt v. Moriarty, Case No. 112,590 speaks for itself.

78. The order issued by the Kansas Supreme Court on November 18, 2014, in State ex

rel. Schmidt v. Moriarty, Case No. 112,590 speaks for itself.

79. Undisputed but incomplete. The Supreme Court granted certiorari to decide two

questions: “1) Does the Fourteenth Amendment require a state to license a marriage between two

people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a

marriage between two people of the same sex when their marriage was lawfully licensed and

performed out-of-state?” DeBoer v. Snyder, 135 S. Ct. 1040 (2015).

80. Plaintiffs dispute that “Decisions to issue marriage licenses to same-sex couples

or to refuse to issue licenses to those couples are made by court personnel, without participation

by the Secretary or by any KDHE employee.” As noted in Plaintiffs’ Statement of Undisputed

Material Facts, ¶ 7, which Defendants do not dispute, the Secretary must “furnish forms used

throughout the State of Kansas for the marriage license process.” Kan. Stat. Ann. § 23-2509(b).

81. Undisputed.

82. Undisputed.

83. Undisputed.

84. Undisputed.

85. Undisputed.

86. Undisputed.

87. Undisputed.

88. Undisputed.

89. Undisputed.


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90. Undisputed.

91. Undisputed.

92. Undisputed.

93. Undisputed.

94. Undisputed.

95. Undisputed.

96. Controverted. Plaintiff Peters filed his 2014 federal and state income tax returns,

filing his federal return as “married filing separately” and filing his state return as “single”

because, in accordance with KDOR Notice 13-18, Kansas prohibits him and all other people who

are married to a spouse of the same sex from using a “married” filing status. Doc. 116-5,

Answers of James E. Peters to Defendants’ First Interrogatories, ¶ 1.

97. Controverted. This is a disputed issue of law, not a disputed issue of fact. The

plain text of Kan. Stat. Ann. § 23-2506(d) does not contain any limitation on the new name a

married person may designate on a Kansas marriage license. Thus, the statute is consistent with

Kansas’s long history at common law to allow a person to change his or her name without any

legal proceedings, merely by usage of a specific name in the community. Sanders v. Sitton, 179

Kan. 118, 120, 292 P. 2d 1099 (1956); 57 Am. Jur. 2d Name §§ 16, 40.








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ARGUMENT

I. Plaintiffs have standing to bring their specific claims.

In a condescending and paternalistic tone, Defendants argue that the Court should dismiss

this case for lack of jurisdiction. Doc. 115, pp. 42-48. For the most part, Defendants’ brief

repeats arguments made in their previously-filed motions to dismiss. See Doc. 57, Def. Moser’s

Motion to Dismiss at 3-5; Doc. 59, Def. Court Clerks’ Memorandum in Support of Motion to

Dismiss at 5-11; Doc. 79, Recognition Def. Motion to Dismiss at 4-10.

A. The Marriage License Claims

The Defendant Court Clerks assert that there “is no longer a live controversy because

Kansas court clerks have been issuing same sex marriage licenses since mid November of 2014

with the blessing of the Kansas Supreme Court.” Doc. 115, p. 42. In addition, they suggest that

“[t]here is no rational basis for an inference that any defendant will again deny plaintiffs a


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marriage license, unless the United States Supreme Court announces that there is no

constitutional defect in the challenged laws.” Def. Response, Doc. 115 at 38. That argument

essentially reprises the mootness defense the Defendant Court Clerks raised in their motion to

dismiss. See Doc. 59, p. 8. As noted in Plaintiffs’ Response in Opposition to the Clerks’ Motion

to Dismiss Plaintiffs’ First Amended Complaint, Defendants changed their Administrative

Orders on same-sex marriage licenses only after this Court entered the preliminary injunction.

Doc. 68 at 4. “[O]bedience to an injunction as long as it is in force is an expected norm of

conduct. An enjoined party ought not be rewarded merely for doing what the court has

directed.” 11A Wright, Miller & Kane, Federal Practice & Procedure, § 2961 at 458 (2013).

“Compliance is just what the law expects.” Walling v. Harnischfeger Corp., 242 F.2d 712, 713

(7th Cir. 1957). In addition, many other Kansas state district courts continue to refuse to issue

marriage licenses to same-sex couples. See, e.g., certified copies of Second Judicial District

Admin. Order dated Nov. 14, 2014 (Doc. 117-1); Thirteenth Judicial District Admin. Order 14-

10 dated Nov. 3, 2014 (Doc. 117-2); Fifteenth Judicial District Admin. Order dated Nov. 19,

2014 (Doc. 117-3), and Twenty-fifth Judicial District Admin. Order 14-3 dated Oct. 14, 2014

(Doc. 117-4). The refusal of some sister district courts to issue marriage licenses to same-sex

couples undermines Defendants’ argument that Defendant Court Clerks would never again

enforce the challenged laws in the absence of injunctive relief.

Defendants also argue that “Plaintiffs lack standing to sue Secretary Mosier.” Doc. 115,

p. 44. But Defendant Mosier has not identified any disputed material fact to defeat summary

judgment against her. Instead, Defendant Mosier asserts that she is not a proper defendant for

the licensing claims because she “has no supervisory authority over the judicial officials who


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would be called upon in appropriate cases to enforce the asserted rights of same-sex couples.”6

Id. Defendant Mosier does not dispute the following:

With respect to marriage licenses issued in the State of Kansas, the Secretary of KDHE must: (a) supervise the registration of all marriage records issued in the State of Kansas, Kan. Stat. Ann. § 23-2507; (b) furnish forms used throughout the State of Kansas for the marriage license process, Kan. Stat. Ann. § 23-2509; and (c) maintain a publicly available vital records index of marriages and issue certified copies of marriage licenses upon request, Kan. Stat. Ann. § 23-2512 (providing that such certified copies constitute prima facie evidence of the marriages in “all courts and for all purposes”).

Doc. 86, p. 3, ¶ 7; Def. Response, Doc. 115, p. 5, ¶ 7. Defendant Mosier argues that those duties

are insufficient to make her a proper defendant for claims seeking the freedom to marry, and in

support of that argument she re-submits a declaration that her predecessor in office submitted in

October 2014 in opposition to Plaintiffs’ Motion for a Preliminary Injunction. Doc. 115, pp. 17-

18, Def. Statement of Additional Material Facts, ¶¶ 6-10. In the decision granting a preliminary

injunction, this Court rejected Defendants’ legal arguments regarding standing to sue the

Secretary of KDHE, and Defendants provide no grounds for revisiting that legal conclusion here.

Doc. 29 at 9-10, Marie v. Moser, -- F. Supp. 3d --, 2014 WL 5598128, at *6 (D. Kan. Nov. 4,

2014).

B. The Tax Filing Status Claim

Defendants argue that “the Court has no subject matter jurisdiction to entertain a

challenge to the tax assessment methods employed by the Kansas Department of Revenue.” Doc.

115, p. 45. See also Def. Response, Doc. 115 at 39. Defendants have completely misconstrued

the claim asserted by Plaintiffs Peters and Mohrman regarding the KDOR’s Notice 13-18.

Plaintiffs’ claim on this point is simple. Kansas law allows taxpayers who are married to

spouses of the opposite sex to file their Kansas income tax returns as “married filing separately” 6 Defendant Mosier does not appear to contest that her job duties related to maintaining a marriage registry make her a proper defendant for the marriage recognition claims.


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or “married filing jointly,” but it prohibits married same-sex taxpayers from filing their state

income tax returns using a “married” filing status and requires them to file their state income tax

returns as “single” even though they are married. See Notice 13-18, Doc. 86-1. Such

discrimination between same-sex and different-sex married couples is a classic violation of equal

protection.

Defendant Jordan has not identified any disputed material fact to defeat summary

judgment against him with respect to the marriage recognition claim related to taxes. Defendants

do not dispute Plaintiffs’ allegations with respect to the duties of Defendant Jordan. Doc. 86, pp.

7-8, Plaintiffs’ Fact Statement ¶¶ 25-28; Doc. 115, p. 10, Def. Response ¶¶ 25-28. Defendants

also do not dispute that Notice 13-18 provides as follows:

Kansas only recognizes marriages between one woman and one man. (See Article 15, Section 16, of the Kansas Constitution.) Kansas Statutes Annotated (K.S.A. 79-32,115) provide that a husband and wife shall file a joint or married filing separate return for income tax purposes. Individuals of the same sex cannot file a Kansas income tax return using a tax status of married filing jointly or married filing separately.

Doc. 86, p. 8, ¶ 29; Doc. 115, p. 10, ¶ 29. Rather than contest these facts, Defendant

Jordan asserts that because Plaintiffs Peters and Mohrman filed their federal returns as

“married, filed separately,” the requirement that Plaintiffs Peters and Mohrman file their

Kansas income tax returns as “single” raises no legal problems because Kansas tax law

does not result in any higher tax rate or additional paperwork burdens for them. Def.

Response, Doc. 115 at 39.7

That argument misses the point entirely. Married heterosexual couples who file

taxes separately still file their Kansas state income tax returns as “married.” Because of

the edict Defendant Jordan laid down in Notice 13-18, Plaintiffs Peters and Mohrman – 7 Significantly, Defendants do not dispute that Notice 13-18 imposes added paperwork burdens on other married same-sex couples who do wish to file their federal and state taxes jointly.


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and other legally married same-sex couples – cannot file their state income tax returns as

“married” and must instead file separately as unmarried (“single”) individuals. Although

Notice 13-18 may not impose additional tax or paperwork burdens on married same-sex

couples who file separate tax returns, it is unconstitutional because it stigmatizes

Plaintiffs Peters and Mohrman and all other same-sex married couples by preventing

them from filing their state income tax returns as “married.” That “differentiation

demeans the couple” and disparages their marriages as “less worthy than the marriages of

others.” United States v. Windsor, 133 S. Ct. 2675, 2694, 2696 (2013). Plaintiffs are

entitled to vindicate their dignitary interests in filing as “married.”

Moreover, Defendants’ Statement of Additional Uncontroverted Facts (Doc. 115,

p. 32, ¶ 92) and supporting affidavit (Doc. 115-3, Aff. of R. Cram) state that Plaintiffs

Peters and Mohrman’s taxes will remain unchanged even if they file as married. Thus, it

is difficult to see what good-faith basis Defendants had for moving dismiss Plaintiffs’

claims under the Tax Injunction Act. Doc. 79, pp. 10-18. If allowing Plaintiffs Peters

and Mohrman to file taxes as “married, filing separately” would not have any impact on

the amount of taxes they owe, then a judgment in their favor would not directly restrain

Kansas’s ability to “assess, levy, and collect taxes.”

C. The Driver’s License Name Change Claims

Defendants Jordan and Kaspar have not identified any disputed material fact to defeat

summary judgment against them with respect to the marriage recognition claims related to

driver’s licenses. Instead, Defendants argue that the Kansas marriage statutes do not allow


20

Plaintiffs Fowler, Bohnenblust, and Hickman to change their names.8 Plaintiffs will address

Defendants’ arguments with respect to Plaintiff Fowler and with respect to Plaintiffs

Bohnenblust and Hickman separately.

1. Plaintiff Fowler’s Name Change

When she married Plaintiff Sarah Braun in Illinois in June 2014, Plaintiff Carrie Fowler

changed her last name from Fowler to Braun. Doc. 86, p. 10, ¶¶ 39 & 41. Rather than contesting

the fact that Plaintiff Fowler changed her last name from Fowler to Braun as part of her marriage

to Sarah Braun, Defendants argue that “K.S.A. 2014 Supp. 23-2506 plainly limits the procedure

[Plaintiffs Fowler and Braun] sought to invoke for change of name to marriages performed in the

State of Kansas pursuant to K.S.A. 2014 Supp. 23-2511.” Doc. 115, pp. 39-40. That argument

misses the mark. Plaintiff Fowler is not relying on § 23-2506. Instead, Plaintiff Fowler’s right

to have her name changed on her Kansas driver’s license is governed by Kan. Stat. Ann. §§ 8-

246 and 8-248 – not by § 23-2506.

Section 8-248 provides that “[w]hen the name of the [Kansas driver’s] licensee is

changed by marriage or otherwise, such person, within 10 days thereafter, shall notify the

division [of vehicles] in writing of such person’s . . . former and new names and of the number of

any driver’s license then held by such person.” Kan. Stat. Ann. § 8-248. Moreover, § 8-246(a)

provides that “if a new name is acquired, the person to whom such driver’s license was issued

may obtain a replacement upon,” inter alia, “[f]urnishing satisfactory proof of the . . . name

change to the division, including an affidavit stating the circumstances of the . . . name change.”

8 Defendants argue that, by filing suit using the surnames Fowler, Bohnenblust, and Hickman, these Plaintiffs have provided “prima facie evidence that their legal names are the ones appearing in the case caption rather than the pseudonyms they allege they would prefer to employ.” Def. Response, Doc. 115, pp. 13-14, ¶¶ 42-46. Any confusion with respect to the proper name to use on court filings in the instant case is purely the result of Defendants’ own actions in refusing to recognize Plaintiffs’ lawful marriages for purposes of changing their names on driver’s licenses.


21

Kan. Stat. Ann. § 8-246(a). One permissible method of proof is a “marriage license.” Kan. Stat.

Ann. § 8-248(b)(6).

At common law, Kansas has long allowed a person to change his or her name without

any legal proceedings, merely by using a specific name in the community. Clark v. Clark, 19

Kan. 522 (Kan. 1878) (wife legally adopted husband’s last name by using it in community);

Sanders v. Sitton, 179 Kan. 118, 120, 292 P. 2d 1099 (1956) (plaintiff could sue in name by

which he was known in his community); 57 Am. Jur. 2d Name §§ 16, 40. When she married

Plaintiff Sarah Braun, Plaintiff Carrie Fowler changed her last name from Fowler to Braun, a

change that the Social Security Administration has recognized. Doc. 86, p. 10, ¶¶ 39 & 41.

Plaintiff Fowler Braun testified that she went to the Lawrence, Kansas, office of the

Division of Vehicles and presented the documents specified on the KDOR’s website for

changing a name on a Kansas driver’s license, specifically presenting her current driver’s license

and her Illinois marriage license. Doc. 115-14, Carrie Braun Depo. at 28:1-5 & 29:12-16. The

KDOR website advises people wanting to change a name on a driver’s license to “Present ONE

original document to establish name change” and lists a marriage certificate, divorce decree,

order of adoption, or court order of legal name change as acceptable documents for that purpose.

See http://www.ksrevenue.org/dmvproof.html (last checked April 21, 2015). Defendants do not

contest that the clerks at the driver’s license office refused to allow Plaintiff Fowler to change

her name on her Kansas driver’s license because Kansas does not recognize same-sex marriages

and not because Plaintiff Fowler presented an out-of-state marriage license. Plaintiffs’ Fact

Statement, Doc. 86, p. 11, ¶¶ 44 & 45; Def. Response, Doc. 115, pp. 13-14, ¶¶ 44 & 45. Because

Plaintiff Fowler complied with the requirements of Kansas law, she was entitled to obtain a

replacement driver’s license reflecting her name change pursuant to Kan. Stat. Ann. §§ 8-246 &


22

9-248, and the KDOR’s refusal to allow Plaintiff Fowler to obtain a Kansas driver’s license in

her married last name of Braun based on its refusal to recognize same-sex marriages violates

Plaintiff Fowler’s and Plainfiff Braun’s constitutional right to equal protection of the laws.

2. The Name Changes of Plaintiffs Bohnenblust and Hickman

Plaintiffs Bohnenblust and Hickman were married in Kansas pursuant to a properly

issued and valid Kansas marriage license. Thus, unlike Plaintiff Fowler’s claim, their claims are

governed by Kan. Stat. Ann. § 23-2506. That statute provides that “[a]t the time of marriage, a

person may designate a new legal name, by which such person shall subsequently be known.”

Kan. Stat. Ann. § 23-2506(a). Such new legal name “shall be recorded on the marriage license

issued to such person,” and the name change “shall be effective upon the endorsement of the

person’s marriage license with the certificate of marriage of the person who performed the

marriage ceremony[.]” Kan. Stat. Ann. § 23-2506(b) & (c).

On their Kansas marriage license, Plaintiffs Bohnenblust and Hickman designated new

legal last names for themselves. Doc. 86, p. 10, ¶ 40. Specifically, Plaintiff Bohnenblust

designated Pottroff (her last name at birth) as her new last name, and Plaintiff Hickman

designated Spain (her last name at birth) as her new last name. Id. Pursuant to Kan. Stat. Ann.

§ 23-2506(d), the new names became “effective upon the endorsement of the person’s marriage

license with the certificate of marriage of the person who performed the marriage ceremony[.]”

Kan. Stat. Ann. § 23-2506(c). Because “[a] certified copy of a person’s marriage license . . .

shall constitute proof of identity for the purposes of issuance of any Kansas driver’s license or

nondriver’s identification card,” Kan. Stat. Ann. § 23-2506(d), Defendants Jordan and Kasper

and their agents and employees in the KDOR’s drivers’ license offices are required to accept the


23

marriage license of Plaintiffs Bohnenblust and Hickman for purposes of changing their last

names on their Kansas driver’s licenses.

Defendants argue that “[t]he statute relied upon, K.S.A. 2014 Supp. 23-2506, only

permits certain new names to be approved, and does not authorize restoration of a former name

using this method.” Doc. 115, p. 40. But Defendants cite no legal authority for their extremely

narrow reading of the statute and provide no evidence demonstrating that they have an actual

policy and practice of denying driver’s licenses based on that interpretation. In stark contrast to

Defendants’ narrow interpretation of the marriage name change statute, the plain language of

Kan. Stat. Ann. § 23-2506 contains no limitation on the new name that a person may designate as

part of the Kansas marriage license process. Instead, the statute provides that “[a]t the time of

marriage a person may designate a new legal name.” Kan. Stat. Ann. § 23-2506(a). Consistent

with Kansas’s long history at common law of allowing person to change his or her name merely

by using a specific name in the community, Sanders, 179 Kan. at 120, the marriage name change

statute thus gives people obtaining marriage licenses in Kansas the unfettered right to change

their names to any new name they wish. Because the statute is unambiguous, there is no need to

interpret the statutory language. Matter of Marriage of Killman, 264 Kan. 33, 43, 955 P. 2d

1228, 1234 (1998) (“[W]hen a statute is plain and unambiguous, the appellate courts will not

speculate as to the legislative intent behind it and will not read such a statute so as to add

something not readily found in the statute”).9

9 The language now codified as Kan. Stat. Ann. § 23-2506 started out as a House amendment to S.B. 88. 2007 Kan. House J. 463 (Mar. 20, 2007). As originally introduced, the House amendment provided that the new name “shall include a combination of the person’s prior existing name and the prior existing name of such person’s spouse, or derivative versions thereof.” Id. As a result of a Conference Committee report, the bill was further amended to change “shall” to “may.” 2007 Kan. House J. 716 (Apr. 3, 2007). The change from the


24

In any event, the undisputed material facts are inconsistent with Defendants’ argument.

The clerk at the Division of Vehicles did not reject the requests of Plaintiffs Bohnenblust and

Hickman for new driver’s licenses because they chose impermissible new last names. Instead,

the clerk rejected their requests because the Division of Vehicles refuses to recognize their legal

marriage based on the Kansas laws that prohibit same-sex marriage. See Doc. 86-4, Second

Bohnenblust Decl., ¶ 8 (“The clerk with whom we interacted stated that the State of Kansas does

not recognize same-sex marriages”).10

D. The Health Insurance Claims

Defendant Michael has not identified a single disputed material fact that would

defeat summary judgment against him with respect to the marriage recognition claims

related to enrollment of same-sex spouses in the State Employee Health Plan (“SEHP”).

Defendants do not dispute that Plaintiff Peters and Plaintiff Bohnenblust are both state

employees, that they are both eligible for health care benefits provided through the SEHP

because they meet the definition of “primary participant” within the meaning of K.A.R. §

108-1-1(b)(2), or that they both participate in SEHP for their health insurance coverage.

Doc. 86, p. 13, ¶¶ 52-53; Doc. 115, p. 15, Def. Response ¶¶ 52-53. Defendants also do

not dispute that, under the SEHP’s eligibility regulation, “[a]ny person enrolled in the

health care benefits program as a primary participant may enroll the following

mandatory “shall” to the permissive “may” indicates that the statute was not intended to limit married persons in selecting their new married names. 10 Defendants appear to challenge the admissibility of this statement as hearsay, but the clerk's statement is excluded from the definition of hearsay because it “was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). The clerk’s statement is admissible under Fed. R. Evid. 801(d)(2)(D) because it was “made during the existence of the declarant’s ‘agency or employment’ . . . [and] concern[ed] a matter within the scope of declarant’s employment.” Boren v. Sable, 887 F. 2d 1032, 1038 (10th Cir. 1989).


25

dependents, subject to the same conditions and limitations that apply to the primary

participant: (A) The primary participant’s lawful wife or husband, as recognized by

Kansas law and subject to documentation requirements of the commission or its

designee[.]” K.A.R. § 108-1-1(g)(1); Plaintiffs’ Fact Statement, Doc. 86, p. 12, ¶ 49;

Defs. Response, Doc. 115, p. 15, ¶ 49.

Rather than contest these material facts, Defendants argue that “[t]he regulation

states only that a wife or husband’s status is to be determined by Kansas law and proved

by documentation acceptable to the agency. It does not state whether same sex marriages

are to be recognized under Kansas law or not.” Doc. 115, p. 41. Such an argument seems

deliberately obtuse. Since the regulation expressly limits dependent spousal coverage to

“[t]he primary participant’s lawful wife or husband, as recognized by Kansas law,” the

regulation clearly incorporates the Kansas laws that prohibit the recognition of same-sex

marriages in Kansas. And that is why Plaintiffs have filed this lawsuit challenging those

laws, specifically KAN. CONST., art. 15, § 16, Kan. Stat. Ann. § 23-2501, and Kan. Stat.

Ann. § 23-2508, and any other law or policy that prohibits same-sex couples from

marrying or denies legal recognition to their marriages. By prohibiting Plaintiffs Peters

and Bohnenblust from enrolling their same-sex spouses as dependents in the SEHP,

Defendant Michaels is enforcing those marriage bans in his official capacity through his

administration of SEHP. That enforcement of the Kansas laws prohibiting recognition of

same-sex marriage violates the constitutional rights of Plaintiffs Peters, Mohrman,

Bohnenblust, and Hickman.

Defendants also suggest that “[u]ltimately the Court will have to decide whether it has

jurisdiction to order the State of Kansas to use taxpayer funds to pay these plaintiffs’ medical


26

expenses.” Doc. 115, p. 41. This appears to be a veiled argument that an injunction requiring

Defendant Michaels to recognize Plaintiffs’ marriages for purposes of enrolling spouses in the

SEHP would violate the Eleventh Amendment because it would cost the state money. To the

contrary, Ex parte Young suits for prospective relief (as opposed to suits for retrospective

damages) are not barred by the Eleventh Amendment even when compliance will force a state to

expend funds. See, e.g., Milliken v. Bradley, 433 U.S. 267, 289 (1977) (Ex parte Young “permits

federal courts to enjoin state officials to conform their conduct to requirements of federal law,

notwithstanding a direct and substantial impact on the state treasury”).

II. Defendants’ Remaining Arguments Are Meritless.

Aside from challenging Plaintiffs’ standing, Section I of the Argument section of

Defendants’ brief includes a random mix of assertions that are not organized around any

particular theme. Def. Response, Doc. 115, p. 34-38. None of those arguments has any merit.

Armstrong v. Exceptional Child

Inspired by the Supreme Court’s recent decision in Armstrong v. Exceptional Child Ctr.,

Inc., 135 S. Ct. 1378 (2015), Defendants contend that Plaintiffs have no statutory basis for

invoking the jurisdiction of the federal courts and have instead attempted to bring suit directly

under the Supremacy Clause. Def. Response, Doc. 115, p. 35. In Armstrong, providers of

rehabilitation services sued the Idaho Department of Health and Welfare for reimbursing them at

rates lower than the Medicaid Act permits. Armstrong, 135 S. Ct. at 1382. Because the

Medicaid Act did not provide them with a private cause of action to enforce the statute, the

providers argued that they could bring suit directly under the Supremacy Clause. Id. at 1384 The

Supreme Court rejected that argument, explaining that “the Supremacy Clause is not the source

of any federal rights, and certainly does not create a cause of action.” Id. at 1383 (internal

citations and quotations omitted). Invoking Armstrong, Defendants assert that “[w]hen Congress


27

has not granted a private cause of action to enforce the alleged federal right, there is no federal

question jurisdiction to entertain a civil suit.” Def. Response, Doc. 115, p. 35.

In this case, however, Congress has created a private cause of action. By its express

terms, 42 U.S.C. § 1983 allows “any party injured” to bring “an action at law, suit in equity, or

other proper proceeding for redress” against any person who, while acting under color of state

law, violates their constitutional rights. “Plaintiffs suing under § 1983 do not have the burden of

showing an intent to create a private remedy because § 1983 generally supplies a remedy for the

vindication of rights” under the Constitution. Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002).

11 Plaintiffs are suing under the express cause of action created in section 1983, not seeking to

imply a cause of action under the Supremacy Clause.

Facial Challenges

Defendants argue that Plaintiffs may not bring a facial challenge unless they can establish

that the law is unconstitutional in all its applications. Def. Response, Doc. 115, p. 37. In support

of this argument, Defendants assert that the challenged laws are not facially unconstitutional in

all applications because “[t]hey also prohibit polygamy, polyandry, incestuous marriages,

underage marriages, and other purported marriages that would not be enforceable as ordinary

contracts.” Id.12 Defendants’ argument confuses facial invalidation with severability. The

11 42 U.S.C. § 1983 also creates a private right of action to enforce “rights, privileges, and immunities” secured by federal statutes. But the Plaintiffs in Armstrong could not bring a claim under Section 1983 because the Supreme Court has clarified that when a statute does not create private rights of enforcement, it also does not create “rights, privileges, and immunities” that can be enforced through section 1983. See Armstrong, 135 S. Ct. at 1384 (citing Gonzaga Univ.536 U.S. at 285). 12 The basis for Defendants’ assertion that the challenged laws prohibit underage and incestuous marriages is unclear because there are no references to age or relatedness in KAN. CONST., art. 15, § 16, Kan. Stat. Ann. § 23-2501, or Kan. Stat. Ann. § 23-2508. Those laws are exclusively concerned with prohibiting marriages between people of the same sex, and it is only those laws that Plaintiffs challenge in this case.


28

portions of the challenged laws that prevent couples from marrying or that deny recognition to

their marriages based on the couple’s gender are unconstitutional in all their applications. Other

restrictions in the laws may continue to be enforced so long as they apply equally to same-sex

and different-sex couples.

Defendants are also wrong when they assert that “plaintiffs lack standing to pursue

general relief for every homosexual couple in Kansas.” Doc. 115 at 42. Pursuing and obtaining

such relief is precisely what a plaintiff does when he or she brings a successful facial challenge.

This Court already addressed the same faulty argument when it issued a preliminary injunction in

this case:

In their Amicus Brief, Phillip and Sandra Unruh assert that the Court may not decide the constitutionality of Kansas’ same-sex marriage ban as applied to male, same-sex couples because the only plaintiffs are two female, same-sex couples. Doc. 22 at 7–8. This argument is a clever use of the facts but, ultimately, it fails to persuade the Court. The Court construes plaintiffs’ Complaint to allege that Kansas’ laws banning same-sex marriage are ones that are unconstitutional on their face (as opposed to a claim challenging the way that Kansas has applied those laws to them). A claim is a facial challenge when “it is not limited to plaintiffs’ particular case, but challenges application of the law more broadly.” John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). If plaintiffs succeed in establishing no circumstances exist under which Kansas could apply its same-sex marriage ban permissibly, the Court may invalidate the laws in their entirety, including their application to male, same-sex couples. Doe v. City of Albuquerque, 667 F.3d 1111, 1127 (10th Cir. 2012) (“[A] successful facial attack means the statute is wholly invalid and cannot be applied to anyone.”) (quoting Ezell v. City of Chicago, 651 F.3d 684, 698–99 (7th Cir. 2011))

Doc. 29 at 12-13, Marie v. Moser, -- F. Supp. 3d --, 2014 WL 5598128, at *7 (D. Kan. Nov. 4,

2014). In a facial challenge, “[o]nce standing is established, the plaintiff’s personal situation

becomes irrelevant.” Ezell, 651 F.3d at 697.


29

Section 2 of DOMA

Defendants further argue that the challenged “laws are facially valid by reason of 28

U.S.C. § 1738C,” which codified § 2 of the Defense of Marriage Act (“DOMA”). Id. The Tenth

Circuit summarily disposed of this argument in Kitchen v. Herbert: “Because we conclude that

marriage is a fundamental right and the state’s arguments for restricting it to opposite-sex

couples fail strict scrutiny, appellants’ arguments regarding § 2 of DOMA also fail on the merits.

Congress cannot authorize a state to violate the Fourteenth Amendment.” 755 F.3d 1193, 1213

n.6 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014). See also Plaintiffs’ Response in Opposition

to Recognition Defendants’ Motion to Dismiss, Doc. 83, pp. 3-4 (refuting Defendants’ DOMA

argument with additional case citations and argument).

In support of their DOMA argument, Defendants posit a bizarre analogy: “If Kansas can

compel a plumber licensed in Iowa or Illinois to obtain a Kansas plumber’s license to ply that

trade in Kansas without transgressing any constitutional principle, then the same rule can

properly be applied to marriage licenses and driver licenses.” Def. Response, Doc. 115, at 38.

There are two obvious problems with this analogy. First, there is no constitutional right to be a

plumber but there is a long-established fundamental constitutional right to marry. Because the

right to marry is a liberty interest protected by the Due Process Clause, state regulations of the

right to marry are encumbered in ways that trade or business regulations are not.

Second, Kansas does not have a policy of recognizing all out-of-state plumber licenses except

licenses issued to gay plumbers. In contrast, Kansas law specifically provides that “[a]ll

marriages contracted without this state, which would be valid by the laws of the country in which

the same were contracted, shall be valid in all courts and places of this state.” Kan. Stat. Ann. §

23-2508. At the same time, however, that statute attempts to carve same-sex marriages out of


30

the recognition equation by providing that “[i]t is the strong public policy of this state only to

recognize as valid marriages from other states that are between a man and a woman.” Id.

Extending the benefit of marriage recognition to different-sex couples married outside of Kansas

while withholding that benefit from similarly-situated same-sex couples married outside of

Kansas is a classic violation of the principles of equal protection. See Kitchen, 755 F.3d at 1222.

CONCLUSION

Defendants have failed to properly controvert Plaintiffs’ undisputed material facts and

have failed to establish any relevant legal defense to Plaintiffs’ constitutional claims. Thus,

Plaintiffs ask the Court to grant their motion for summary judgment.

Respectfully submitted,

/s/ Stephen Douglas Bonney Stephen Douglas Bonney, KS Bar No. 12322 ACLU Foundation of Kansas 3601 Main Street Kansas City, MO 64111 Tel. (816) 994-3311 Fax: (816) 756-0136 [email protected]

Mark P. Johnson, KS Bar #22289 Samantha J. Wenger, KS Bar #25322 Dentons US, LLP 4520 Main Street, Suite 1100 Kansas City, MO 64111 816/460-2400 816/531-7545 (fax) [email protected] [email protected] Joshua A. Block [admitted pro hac vice] AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2593 [email protected] ATTORNEYS FOR PLAINTIFFS


31

Certificate of Service

I certify that, on April 27, 2015, the foregoing document was served on counsel for all defendants per the Court’s ECF system.

/s/ Stephen Douglas Bonney


Case 2:14-cv-02518-DDC-TJJ Document 117-1 Filed 04/27/15 Page 1 of 1






IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KAIL MARIE, et al., Plaintiffs,

v.

SUSAN MOSIER, M.D., in his official capacity as Secretary of the Kansas Department of Health and Environment, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

Case No. 14-cv-2518

PLAINTIFFS’ INDEX OF EXHIBITS SUBMITTED WITH REPLY TO DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

ON ALL CLAIMS

1. Doc. 117-1: Certified copy of 2nd Judicial Dist. Admin. Order on same-sex marriage

licenses;

2. Doc. 117-2: Certified copy of 13th Judicial Dist. Admin. Order on same-sex marriage

licenses;


licenses;


licenses.

Respectfully submitted,

/s/ Stephen Douglas Bonney Stephen Douglas Bonney, KS Bar No. 12322 ACLU Foundation of Kansas 3601 Main Street Kansas City, MO 64111 Tel. (816) 994-3311 Fax: (816) 756-0136 [email protected]


2

Mark P. Johnson, KS Bar #22289 Dentons US, LLP 4520 Main Street, Suite 1100 Kansas City, MO 64111 816/460-2400 816/531-7545 (fax) [email protected]

Joshua A. Block [admitted pro hac vice] AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2593 [email protected]

ATTORNEYS FOR PLAINTIFFS

Certificate of Service

I certify that, on April 27, 2015, the foregoing document was served on counsel for all defendants per the Court’s ECF system.

/s/ Stephen Douglas Bonney


Documents

2:14-cv-02518 #117