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8:14-cv-00356-JFB-TDT Doc # 46 Filed: 01/23/15 Page 1 of 10 - Page ID # 631

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEBRASKA
SUSAN WATERS and SALLY
WATERS, et al.

)
)
)
Plaintiffs,
)
v.
)
)
PETE RICKETTS in his official
)
capacity as Governor of Nebraska,
)
DOUG PETERSON in his official
)
capacity as Attorney General of
)
Nebraska, LEONARD J. SLOUP in )
his official capacity as Acting Tax
)
Commissioner of the Nebraska
)
Department of Revenue, JOSEPH
)
ACIERNO in his official capacity as )
Acting CEO of the Nebraska
)
Department of Health and Human
)
Services, and DAN NOLTE in his
)
official capacity as the Lancaster
)
County Clerk,
)
)
Defendants.
)

CASE NO. 8:14-CV-356


PLAINTIFFS BRIEF IN
OPPOSITION TO MOTION
TO STAY PROCEEEDINGS

Plaintiffs oppose the State Defendants (Defendants) motion to stay


proceedings pending the Supreme Courts decision in the four marriage cases
before that Court because they urgently need the protections of marriage now.
Waiting for a decision from the Supreme Court, which will likely be issued at the
end of June, would subject the Plaintiffs and their families to serious and
irreparable harms.

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For Sally and Susan Waters, every day they wait for the State to recognize
their marriage is another day that, while suffering the pain and stress of Sallys
stage IV cancer, they have to endure the additional burden of worrying about how
Susan and the children will manage financially after Sally passes away because the
family will be denied critical financial protections the State affords widows. And
if Sally passes away before court-ordered relief issues, at her time of grief, Susan
will receive a death certificate for Sally that erases the couples marriage,
identifying her as single and leaving blank the space for surviving spouse.
Declaration of Sally Waters, attached as Ex. 1 to Plaintiffs Motion for Preliminary
Injunction (Plaintiffs PI Motion), pars. 11-19; Declaration of Susan Waters,
attached as Ex. 2 to Plaintiffs PI Motion, pars. 4-5.
For Crystal Von Kampen, a disabled Iraq war veteran, until the State
recognizes her marriage to Carla Morris-Von Kampen, her family will continue to
be denied financial protections afforded to married veterans families, significantly
affecting the couples standard of living and ability to make ends meet.
Declaration of Crystal Von Kampen, attached as Ex. 5 to Plaintiffs PI Motion,
pars. 5-10.
For Nick Kramer and Jason Cadek, as long as their marriage is not
recognized by the State, their daughter will continue to be denied a legal parentchild relationship with one of her parents, creating profound insecurity for the
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family. Declaration of Nickolas Kramer, attached as Ex. 3 to Plaintiffs PI Motion,


pars. 5-8.
Until the State is enjoined from enforcing the marriage ban, all of the
Plaintiffs and their families will continue to be subjected to the stigma and
humiliation of being deemed second-tier families by the State. Ex. 1 to Plaintiffs
PI Motion, pars. 20, 23; Ex. 3 to Plaintiffs PI Motion, pars. 9, 11; Ex. 5 to
Plaintiffs PI Motion, pars. 12-13; Declaration of Jessica Kallstrom-Schreckengost,
Ex. 9 to Plaintiffs PI Motion, pars. 7, 9; Declaration of Marj Plumb, Ex. 11 to
Plaintiffs PI Motion, pars. 9-10; Declaration of Randall Clark, Ex. 13 to Plaintiffs
PI Motion, pars. 6-8; Declaration of Gregory Tubach, Ex. 7 to Plaintiffs PI
Motion, par. 7. See U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013).
The Plaintiffs and their families should not be made to continue to endure
these serious and irreparable harms while awaiting a decision from the Supreme
Court. Because of this urgency, Plaintiffs have moved for a preliminary injunction
and, as discussed in Plaintiffs Brief in Support of Motion for Preliminary
Injunction, all of the preliminary injunction factors strongly support granting the
requested relief.
The Eighth Circuit made clear yesterday that it does not consider the
pendency of marriage cases at the Supreme Court to be a basis to stay proceedings
in other marriage cases. The court denied a motion to stay a marriage case from
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Missouri and, instead, expedited the appeal. Order in Lawson v. Kelly, No. 143779 (8th Cir. Jan.22, 2015). 1
Defendants suggest that going forward with Plaintiffs motion for a
preliminary injunction would be a waste of time because, they say, if this Court
were to grant the relief sought by Plaintiffs, the Eighth Circuit would likely stay
the courts injunction pending their appeal. But they offer no basis for such
speculation and do not even attempt to argue that in the event this Court issues a
preliminary injunction, they could meet the standard for obtaining a stay of that
injunction pending appeal.
A stay pending appeal is an intrusion into the ordinary process of . . .
judicial review and [t]he parties and the public, while entitled to both careful
review and a meaningful decision, are also generally entitled to the prompt
execution of orders. . . . Nken v. Holder, 556 U.S. 418, 427 (2009) (internal
quotation marks and citations omitted). The factors to be considered in
determining whether to grant a stay pending appeal are:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the

Defendants point a federal district judge in North Dakota who, unlike the Eighth
Circuit, chose to stay proceedings in marriage cases. See State Defendants Brief
in Support of Motion to Stay Proceedings at 4. However, in those cases, the court
did not have before it a motion for a preliminary injunction to avoid irreparable
harm that would befall plaintiffs if denied immediate relief.
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other parties interested in the proceeding; and (4) where the public interest
lies.
Id. at 426. The party requesting a stay bears the burden of showing that the
circumstances justify a stay. Id. at 433-34.
The factors to be considered in granting a stay pending judicial review are
essentially those factors considered in granting preliminary injunctive relief.
Packard Elevator v. Interstate Commerce Commn, 782 F.2d 112, 115 (8th Cir.
1986). For the reasons discussed in Plaintiffs Brief in Support of Motion for
Preliminary Injunction, Plaintiffs are likely to succeed on the merits; Defendants
will not suffer any harmirreparable or otherwiseif a stay is denied; Plaintiffs
will be substantially harmed absent immediate relief (and, thus, harmed if the stay
is issued); and a stay would harm the public interest.
Defendants motion does not even attempt to demonstrate that any of the
stay factors would support a stay of a preliminary injunction should this Court
grant the relief requested by Plaintiffs. Even in their brief in opposition to
Plaintiffs motion for a preliminary injunction, the Defendants have not disputed
the harms identified by the Plaintiffs, making only the legal argument that the State
is not interfering with a recognized constitutional right. And the harms the
Defendants claim would befall the State and the public should a preliminary
injunction be grantedthat the State suffers injury when enjoined from enforcing
its own law; an interest in stable marriage laws; and administrative burden for state
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agencieshave been deemed insufficient by the Supreme Court to prevent


injunctions against enforcement of marriage bans from going into effect. See, e.g.,
Application to Stay Preliminary Injunctions of the United States District Court for
the North District of Florida Pending Appeal at 13-17, Sec., Fla. Dept of Health v.
Brenner, No. 14A650 (U.S. Dec. 15, 2014), available at
http://myfloridalegal.com/webfiles.nsf/WF/JMEE9RTTP6/$file/SCOTUSSTAYAPPLICATION.pdf (making the same arguments
raised by Defendants here); Armstrong v. Brenner, No. 14A650, 2014 WL
7210190 (U.S. Dec. 19, 2014) (denying request to stay preliminary injunction
barring enforcement of Floridas marriage ban).
To the extent Defendants reference to stable marriage laws is meant to
suggest that, in the event of a reversal of an order granting a preliminary
injunction, there would be uncertainty about the legal marital status of couples
married while the injunction was in effect, that is not the case. Any marriages
entered into in reliance on the district courts injunction would be valid regardless
of the outcome of the appeal. See Caspar v. Snyder, No. 14-CV-11499, 2015 WL
224741 (E.D. Mich. Jan. 15, 2015) (holding that Michigan must recognize
marriages entered into in the state while district courts injunction was in effect
even though district courts decision was subsequently reversed by circuit court);
Evans v. Utah, 21 F. Supp. 3d 1192 (D. Utah 2014) (holding that Utah must
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recognize marriages entered into in the state after district court entered injunction
and prior to stay issued by Supreme Court) (appeal withdrawn).
Instead of trying to make the case why a stay would be warranted should this
Court issue a preliminary injunction, Defendants point to the fact that a federal
district judge in South Dakota issued a stay of an injunction pending appeal in a
different case. See Order Granting Plaintiffs Motion for Summary Judgment and
Denying Defendants Motion for Summary Judgment, Rosenbrahn v. Daugaard,
No. 4:14-CV-04081 (D.S.D. Jan. 12, 2015), ECF No. 50. But in that case, the
plaintiffs did not seek a preliminary injunction to prevent irreparable harm absent
immediate relief. Moreover, the Rosenbrahn court curiously relied on a stay order
issued by a federal district court in Florida in Brenner v. Armstrong when, in a
subsequent order in the same case, the court refused to extend the stay for the
pendency of the appeal. Order Denying the Motions to Alter the Stay at 4-5,
Brenner v. Armstrong, No. 4:14-CV-107 (N.D. Fla. Nov. 5, 2014), ECF No. 95.2
And when Florida appealed the district courts order denying the extension of the
stay, both the Eleventh Circuit and the Supreme Court refused to stay the

The court left in place a shorter temporary stay to permit the issue of a stay to be
addressed by the Eleventh Circuit, but concluded that a longer stay is not
warranted, citing the Supreme Courts decision to deny review and leave intact
decisions from circuit courts of appeal invalidating marriage bans and its denial of
stays in marriage cases since then. Order Denying the Motions to Alter the Stay at
5, Brenner v. Armstrong, No. 4:14-CV-138 (N.D. Fla. Nov. 5, 2014), ECF No. 95.
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injunction, allowing it to take effect on January 6, 2015. Order, Brenner v.


Armstrong, No. 14-14061 (11th Cir. Dec. 3, 2014); Armstrong v. Brenner, No.
14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014). As a result, same-sex couples
are marrying and having their out-of-state marriages recognized in Florida while
the States appeal proceeds. 3
Ever since the Supreme Court denied petitions for certiorari seeking its
review of circuit court decisions invalidating marriage bans on October 6, 2014,
the Court has denied all requests to stay district court injunctions in marriage cases
pending appeal.4 The Supreme Court refused to stay injunctions even after the
Sixth Circuits decision in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert.
granted sub nom. Obergefell v. Hodges, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2014)
3

The fact that the Eighth Circuits order in Lawson v. Kelly, No. 14-3779 (8th Cir.
Jan. 22, 2015), declined to disturb a district courts decision to stay its own ruling
invalidating Missouris marriage ban does not suggest that the court would be
likely to disturb this Courts determination about whether or not to stay a
preliminary injunction should the Court grant Plaintiffs motion.
4

See Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014)
(denying stay of preliminary injunction barring enforcement of Floridas marriage
exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014)
(denying stay of judgment finding South Carolinas marriage exclusion laws
unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12,
2014) (denying stay of preliminary injunction preventing enforcement of Kansas
marriage exclusion); Parnell v. Hamby, 14A413, 2014 WL 5311581 (U.S. Oct. 17,
2014) (denying stay of district court decision declaring Alaskas marriage
exclusion unconstitutional); Otter v. Latta, 14A374, 2014 WL 5094190 (U.S. Oct.
10, 2014) (denying application for stay of Ninth Circuits judgment finding Idahos
marriage exclusion laws unconstitutional).
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(No. 14-571), created a circuit split making a grant of certiorari likely. And it
refused to do so even in the Florida case where there was no binding circuit
precedent holding marriage bans unconstitutional. These actions show that the
Supreme Court does not consider the possibility of reversal or the balancing of the
harms to support delaying marriage for same-sex couples while appeals proceed.
See Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301,
1303-05 (1991) (Scalia, J., in chambers) (factors considered by Supreme Court
when asked to stay an order from a lower court include likelihood of reversal of the
judgment and a balancing of the harms to applicant, respondent and the public).
There is therefore no basis to expect that the Eighth Circuit would reach the
opposite conclusion and stay a preliminary injunction should one be issued by this
Court.
For the foregoing reasons, Plaintiffs respectfully request that Defendants
motion be denied.
Respectfully submitted,

s/SUSAN KOENIG, #16540


s/ANGELA DUNNE, #21938
KoenigDunne Divorce Law, PC, LLO
1266 South 13th Street.
Omaha, Nebraska 68108-3502
(402) 346-1132
susan@nebraskadivorce.com
angela@nebraskadivorce.com
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Amy A. Miller, #21050


ACLU of Nebraska Foundation
941 O Street #706
Lincoln NE 68508
402-476-8091
amiller@aclunebraska.org
Leslie Cooper
admitted pro hac vice
Joshua Block
admitted pro hac vice
ACLU Foundation
125 Broad St., 18th Floor
New York, New York 10004
(212) 549-2627
lcooper@aclu.org
jblock@aclu.org

CERTIFICATE OF SERVICE
I hereby certify that the counsel of record for the Defendants, Jon Bruning, is being
served with a copy of this document via certified mail to 2115 State Capital,
Lincoln, Nebraska on the 23rd day of January, 2015.
_/s/ Angela Dunne_____________________

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