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

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
)
)
)
)
Plaintiffs,
)
)
)
v.
)
)
SUSAN MOSIER, M.D., in his official capacity
)
as Secretary of the Kansas Department of
)
Health and Environment, et al.,
KAIL MARIE, et al.,

Case No. 14-cv-2518

Defendants.
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 coextensive 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

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Clerks (Defendants Lumbreras and Hamilton) would be refusing to issue marriage licenses to
Plaintiffs but for this Courts 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 movants 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 movants fact that is
disputed.
(2) If the party opposing summary judgment relies on any facts not contained in
movants 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 movants 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 Courts 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 . . . [movants] 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. 114, 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
3

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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 Revenues 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, 3538.2 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.

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 drivers 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 Revenues Division of Vehicles who oversee[s] drivers 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. Parkss 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 Kansass refusal to permit married same-sex couples to file state
income tax returns as married based on the Kansas laws prohibiting the recognition of samesex 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 states recognition of a same-sex marriage.
8.

Undisputed.

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.
10.

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

prohibiting incestuous marriages. The constitutionality of such laws is a legal question, not a
question of fact.
11.

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

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.

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.

7

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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 drivers license, specifically her current drivers 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 drivers 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 drivers 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 dont 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.

10

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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 Clerks office since that time to attempt to pick up a
marriage license.

12

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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.

13

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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
Kansass 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.
98.

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
Kansass 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.

14

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99.

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
Kansass 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.
100.

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
Kansass 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.
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. SeeDoc. 57, Def. Mosers
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 1410 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. 1718, 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 KDORs 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

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

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 Mohrmans 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
Kansass ability to assess, levy, and collect taxes.
C. The Drivers 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
drivers licenses. Instead, Defendants argue that the Kansas marriage statutes do not allow

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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 Fowlers 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 Fowlers right
to have her name changed on her Kansas drivers license is governed by Kan. Stat. Ann. 8246 and 8-248 not by 23-2506.
Section 8-248 provides that [w]hen the name of the [Kansas drivers] licensee is
changed by marriage or otherwise, such person, within 10 days thereafter, shall notify the
division [of vehicles] in writing of such persons . . . former and new names and of the number of
any drivers 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 drivers 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.

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 drivers licenses.

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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 husbands 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 KDORs website for
changing a name on a Kansas drivers license, specifically presenting her current drivers 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 drivers 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 drivers license office refused to allow Plaintiff Fowler to change
her name on her Kansas drivers 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 drivers license reflecting her name change pursuant to Kan. Stat. Ann. 8-246 &

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9-248, and the KDORs refusal to allow Plaintiff Fowler to obtain a Kansas drivers license in
her married last name of Braun based on its refusal to recognize same-sex marriages violates
Plaintiff Fowlers and Plainfiff Brauns 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 Fowlers 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
persons 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 persons 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 persons marriage license . . .
shall constitute proof of identity for the purposes of issuance of any Kansas drivers license or
nondrivers identification card, Kan. Stat. Ann. 23-2506(d), Defendants Jordan and Kasper
and their agents and employees in the KDORs drivers license offices are required to accept the

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marriage license of Plaintiffs Bohnenblust and Hickman for purposes of changing their last
names on their Kansas drivers 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 drivers 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 Kansass 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

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 persons prior
existing name and the prior existing name of such persons 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

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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 drivers 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 SEHPs 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 partys agent or
employee on a matter within the scope of that relationship and while it existed. Fed. R. Evid.
801(d)(2)(D). The clerks statement is admissible under Fed. R. Evid. 801(d)(2)(D) because it
was made during the existence of the declarants agency or employment . . . [and] concern[ed]
a matter within the scope of declarants employment. Boren v. Sable, 887 F. 2d 1032, 1038
(10th Cir. 1989).
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dependents, subject to the same conditions and limitations that apply to the primary
participant: (A) The primary participants 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 husbands 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 participants 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

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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 Courts 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
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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.
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portions of the challenged laws that prevent couples from marrying or that deny recognition to
their marriages based on the couples 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 78. 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, 69899 (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 plaintiffs personal situation
becomes irrelevant. Ezell, 651 F.3d at 697.

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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 states 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 plumbers 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

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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
dbonney@aclukansas.org
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)
mark.johnson@dentons.com
samantha.wenger@dentons.com
Joshua A. Block [admitted pro hac vice]
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2593
jblock@aclu.org
ATTORNEYS FOR PLAINTIFFS
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Certificate of Service
I certify that, on April 27, 2015, the foregoing document was served on counsel for all
defendants per the Courts ECF system.
/s/ Stephen Douglas Bonney

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Case 2:14-cv-02518-DDC-TJJ Document 117-3 Filed 04/27/15 Page 1 of 2

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Case 2:14-cv-02518-DDC-TJJ Document 117-5 Filed 04/27/15 Page 1 of 2

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;
3. Doc. 117-3: Certified copy of 15th Judicial Dist. Admin. Order on same-sex marriage
licenses;
4. Doc. 117-4: Certified copy of 25th Judicial Dist. Admin. Order on same-sex marriage
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
dbonney@aclukansas.org

Case 2:14-cv-02518-DDC-TJJ Document 117-5 Filed 04/27/15 Page 2 of 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)
Mark.johnson@dentons.com
Joshua A. Block [admitted pro hac vice]
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2593
jblock@aclu.org
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 Courts ECF system.
/s/ Stephen Douglas Bonney