Case 2:14-cv-02518-DDC-TJJ Document 87 Filed 02/15/15 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KAIL MARIE, et al,

vs.
SUSAN MOSIER, M.D., et al.,

)
Plaintiffs,
)
)
)
)
)
Defendants. )

Case No. 14-cv-02518-DDC/TJJ

AMICUS CURIAE BRIEF OF WESTBORO BAPTIST CHURCH

IN OPPOSITION TO PLAINTIFFS
MOTION FOR SUMMARY JUDGMENT

In accord with this Courts 11/7/14 (Doc. 35) and 12/18/14 (Doc. 62) orders denying
requests by Westboro Baptist Church, Inc.s (WBC) to intervene (Docs. 19 and 53), and in
compliance with D. Kan. Rule 7.6, WBC submits the following amicus curiae brief in
response and opposition to plaintiffs motion for summary judgment (Docs. 85 and 86).
WBC incorporates herein by reference, as though set forth here verbatim, the full
content of its previous filings, including motions to intervene (Docs. 19 and 53), and
amicus brief in opposition to plaintiffs requests for preliminary injunction (Doc. 61).
The content and tone of the summary judgment motion presumptively supposes that
same sex marriage is a closed case. Because the Tenth Circuit preemptively guessed the
United States Supreme Court might change its positions announced in Baker v. Nelson,

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409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), does not bind this Court. Nor should it
bind the citizens of Kansas, including all of its state and local administrators. The people
of Kansas voted for upholding the Bible standard; courts act wrongfully when they override
the vote of the people.
It is especially inappropriate for the plaintiffs to be in such a rush to uproot traditional
Bible-based marriage. Unfortunately, the underlying theme of the plaintiffs case is a
visceral desire to break off the bonds of any rules, Gods or mans. So they complain in a
recent media report, related to their summary judgment motion: The state is trying to
slow walk this and deprive everybody of their rights. The writing on the wall is pretty clear
where this is all going and all the momentum is toward marriage equality, Bonney said.
Online: http://bit.ly/1D7wBcF, last visited 2/15/15. Some people call slow walking due
process, letting the state take discovery, make a record, assert its legal positions, and so
forth. And the momentum of the people of Kansas is not towards same sex marriage; only
the momentum of some premature legal decisions, which ignore the precedent of the
United States Supreme Court and misperceived the proper role of appellate courts in our
democratic system.
Quoting from the dissenting opinion from a denial of rehearing en banc in Latta v. Otter,
2014 U.S.App. LEXIS 400 (9th Cir., 1/9/15):
*** State by state, citizens have considered the issue of same-sex
marriage and, through legislation, popular referendum, or
constitutional amendment, voiced their views on this question of
immense public importance.

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[W]hile invidious racial discrimination warranted judicial action in

Loving v. Virginia[, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010
(1967)], no such discrimination is implicated here. ***
***
Indeed state laws that define marriage as a union of a man, and a woman
bear little resemblance to the Virginia statute that criminalized Mildred
and Richard Lovings marriage merely because Mildred was black and
Richard was white.
***
Of course, states are not compelled to define marriage as such an
opposite-sex unionsimply look to the many states that, since Loving,
have defined it by statute or popular vote to extend to gay and lesbian
couples. But states are also not compelled by the federal Constitution
to define marriage differently than the generally accepted oppositesex relationship Mildred and Richard sought to enter in Loving.
*** We are a Court of Appeals, not the Supreme Court, and our
obligation is to
adhere to the view that if the Court has branded a question as
unsubstantial, it remains so except when doctrinal
developments indicate otherwise. [T]he lower courts are
bound by summary decisions by th[e Supreme] Court until
such time as the Court informs [them] that [they] are not.
Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223
(1975).
Far from avoiding our responsibilities, following Baker here constitutes
the only permissible exercise of our limited authoritythe eagerness
of the panel members to pronounce their views on the merits of samesex marriage notwithstanding. ***
***
[United States v.] Windsor[, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013)],
Lawrence [v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003)] and Romer [v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134
L.Ed.2d 855 (1996)] simply do not limit the states authority to define
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marriage and certainly do not contradict Bakers conclusion that the

Constitution does not require states to recognize same-sex marriage.
***
In addition [t]he panel fails to recognize the principle that marriage
law, like other areas of domestic relations, has been and should
continue to be an area committed to the states. ***
2014 U.S.App. LEXIS 400, 19-26, 29-30, 36.
Maybe the United States Supreme Court is going to overturn centuries of law and
decide that engaging in purposeful self-pronounced and unnecessarily-published sinful
behavior is a basis for finding a protected class. (Vis--vis being born with an immutable
trait, like race, gender, disability, a body that naturally ages, etc.) Maybe the United States
Supreme Court is going to ignore all empirical evidence that shows that there is zero
discrimination against homosexuals in this country (or any history of being deprived of
educational or economic opportunities); rather there is simply some very limited scriptural
disapproval, which is not the governments to suppress or outlaw, and cannot as a matter
of law be classified as legally-cognizable discrimination.

Maybe the United States

Supreme Court is going to ignore the structure of government this nation enjoys, and put a
distinction between what belongs to the federal government vis--vis what belongs to the
state government, and intrude into the domestic matters of the states; utterly contrary to the
Constitution, ignoring the appropriate respect [the Supreme Court owes] to States as
sovereigns and to the people of those State who approved those laws, Ex parte Davis,
2015 Ala. LEXIS 16 at 5 (2/11/15), concurring opinion, quoting from Justice Thomass
dissent to the United States Supreme Courts denial of a stay, joined by Justice Scalia, in
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Strange v. Searcy [Ms. 14A840, February 9, 2015] 574 U.S.

, 2015 U.S.LEWIX 912

(2015). And maybe on those bases the Supreme Court will reverse itself in Baker and treat
access to a marriage license as a fundamental constitutional right.
And remember, if the Supreme Court does overthrow all past precedent and
conclude that a marriage license is a constitutional right mark these words we tell you:
that will only be the beginning. Because it is of little interest to the homosexual population
in the abstract to have access to a marriage license. What they seek indeed what they
crave is society telling them their sin is acceptable in the sight of God. It will be
interesting to see how far the courts of this land are prepared to go in uprooting the entire
form of government and its entire historical jurisprudence, and in plowing over others
constitutional rights, to accommodate that unholy mission.
The scorched earth approach by plaintiffs and the rest of the homosexual activists
in the nation is such that they want all court proceedings rushed, to the end of denying due
process; they want no voice of dissent in the room; they are prepared to bankrupt all
governments at all levels; they will use the media to mock and vilify anyone who whispers
at the sinful nature of their conduct; and as one judicial writer recently raised this point,
they may even be willing to have the entire statutory scheme in every state demolished, so
that no marriage license is valid, to achieve this end. Inherent in the petitioners request
for guidance is whether a probate judge has an affirmative obligation to issue
marriage licenses at all or must [the marriage license law] be stricken as wholly void, if
they are not to be applied to a union between a man and a woman, Ex parte Davis, supra,
2015 Ala. LEXIS 16 at 16. This environment, emboldened by the imprudent zeitgeist that
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eschews anything labeled hate or intolerant, has the makings of some very, VERY bad
law. But in the meanwhile, until the Supreme Court overturns Baker, that is the binding
precedent, and that is what this Court should be following.
Setting aside the very real fact that the issues raised by this case, and the duties they
impose on judicial decision makers, transcend legal opinions. It is the worst possible thing
that any branch of government could do to the people of Kansas, or the people of this
nation, to put the imprimatur of government approval on the abomination called
homosexuality. The government might as well start issuing licenses to rape, murder,
consume every manner of illegal drug to which one is addicted, and steal people blind. It
is simply wrong, no matter how it is explained away in legal opinions. And it will not go
well for the health and welfare of Kansas or America that the federal courts take us down
this path. WBC has provided many scriptures and sound and practical reasons for this
conclusion heretofore, all of which are incorporated as though repeated here.
For all the foregoing reasons, WBC submits that plaintiffs motion for summary
judgment should be denied; defendants motions to dismiss should be granted; and this
case should be dismissed, with an admonition to the plaintiffs that they take their claims
for societal acceptance of their anti-Bible, anti-God sinful manner of life to the people
through the proper democratic process.

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Respectfully submitted,
/s/ Margie J. Phelps
______________________________________
Margie J. Phelps, Ks. Bar No. 10625
Attorney at Law
P.O. Box 3725
Topeka, KS 66604
785-408-4598 (ph)
785-233-0766 (fx)
margie.phelps@cox.net
ATTORNEY FOR AMICUS
WESTBORO BAPTIST CHURCH, INC.

Certificate of Service
I hereby certify that a copy of the foregoing amicus brief was served through the
Courts CM/ECF system on February 15, 2015, on all counsel of record herein.
/s/ Margie J. Phelps
______________________________________
Margie J. Phelps