Marie v. Mosier, Case No. 14-cv-02518-DDC-TJJ

• Decision Date: 22 July 2016
• Docket Number: Case No. 14-cv-02518-DDC-TJJ
• Citation: 196 F.Supp.3d 1202
• Parties: Kail MARIE, et al., Plaintiffs, v. Susan MOSIER, M.D., in her official capacity as Secretary of the Kansas Department of Health and Environment, et al., Defendants.
• Court: U.S. District Court — District of Kansas

196 F.Supp.3d 1202

Kail MARIE, et al., Plaintiffs,

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

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

United States District Court, D. Kansas.

Signed July 22, 2016

Joshua A. Block, American Civil Liberties Union Foundation, New York, NY, Mark P. Johnson, Samantha Jo Wenger, Dentons US, LLP, Kansas City, MO, Stephen D. Bonney, ACLU Foundation of Kansas, Overland Park, KS, for Plaintiffs.

Dennis D. Depew, M. J. Willoughby, Office of Attorney General, Steve R. Fabert, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER RULING ON PLAINTIFFS' REQUEST FOR PERMANENT INJUNCTION

Daniel D. Crabtree, United States District Judge

In an earlier Order, the court decided to defer the decision whether to grant plaintiffs' request for permanent injunctive relief. See Doc. 126 at 32. The court now has considered the parties' additional submissions and is prepared to rule on that issue. For reasons explained in this Order, the court grants permanent injunctive relief.

I. BACKGROUND

A. PROCEDURAL HISTORY

Plaintiffs brought this action in October 2014 seeking injunctive and declaratory relief under 42 U.S.C. § 1983. Plaintiffs asked the court to declare unconstitutional provisions in Kansas law that prohibited plaintiffs and other same-sex couples from marrying. And plaintiffs asked the court to enjoin defendants permanently from enforcing those laws "and any other sources of state law to exclude same-sex couples from marriage." Doc. 1 at 19.

On November 4, 2014, the court granted plaintiffs' motion for a preliminary injunction.¹ This injunction forbade defendants from enforcing Kansas' laws prohibiting issuance of marriage licenses to same-sex couples, applying controlling precedent adopted by our Circuit and applied to similar state laws in Utah and Oklahoma.² This precedent had held that Utah and Oklahoma's laws banning same-sex marriage violated the Constitution of the United States.

Six months after this court preliminarily enjoined enforcement of the challenged Kansas laws, the Supreme Court decided to hear a consolidated appeal arising from challenges to similar same-sex marriage laws in Ohio, Michigan, Kentucky, and Tennessee. The Sixth Circuit had reached the opposite conclusion as the Tenth Circuit, holding that state laws banning same-sex marriages did not violate the Constitution.³ And on June 26, 2015, in a case called Obergefell v. Hodges ,⁴ the Supreme Court resolved these conflicting results. It held that state laws banning same-sex marriage violate the Constitution's due process and equal protection clauses.

After Obergefell was decided, defendants argued that this case was moot and asked the court to dismiss it. Plaintiffs disagreed and moved for summary judgment, asking the court to declare that Kansas' same-sex marriage laws (and related policies) violate the Constitution and thus are void. Plaintiffs also asked the court to issue a permanent injunction forbidding defendants (and their successors) from ever enforcing these invalid laws. The court concluded that Obergefell 's holding did not directly decide the claims in this case. And so, the court applied Obergefell 's rule to the Kansas laws and decided whether they also offended the Constitution.

In a Memorandum and Order issued on August 10 of last year, the court held that Obergefell 's rule rendered the Kansas laws equally invalid, and the court granted part of the relief that plaintiffs sought in their Amended Complaint and pending Motion for Summary Judgment. Namely, the August 10 Order issued a declaratory judgment ruling that certain specified Kansas laws⁵ contravened the Fourteenth Amendment to the United States Constitution. It also extended this declaratory judgment to reach "any other Kansas statute, law, policy, or practice that prohibits issuing marriage licenses to same-sex couples in Kansas or [otherwise] recognizing such marriages on the same terms and conditions that apply to opposite-sex couples...." Doc. 126 at 41 (Memorandum and Order of August 10, 2015).

But when it issued this declaratory judgment, the court stopped short of granting plaintiffs all relief they sought. Exercising its discretion under a line of cases known as the prudential mootness doctrine, the court decided to " ‘stay its hand, and to withhold’ "—for the time being—" ‘relief [that] it ha[d] the power to grant.’ " Doc. 126 at 30 (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1121–22 (10th Cir.2010) (internal quotation and citation omitted)). The court elected to postpone its ruling on plaintiffs' request for a permanent injunction forbidding defendants from enforcing the unconstitutional laws. As the court explained at the time, the prudential mootness doctrine counsels federal courts to extend careful consideration to cases " ‘such as this one, where the relief sought is an injunction against the government.’ " Doc. 126 at 30 (quoting S. Utah Wilderness All. v. Smith , 110 F.3d 724, 727 (10th Cir.1997) (citing Bldg. & Constr. Dep't v. Rockwell Int'l Corp. , 7 F.3d 1487, 1492 (10th Cir.1993) (further citation omitted))).

The court decided to defer the permanent injunction issue because of remedial commitments defendants had made. In short, defendants' counsel assured the court that defendants already had taken steps to comply with Obergefell . Defendants' agents also assured the court that the state agencies led by defendants would continue to comply in the future. And, correspondingly, the summary judgment record established that defendants had taken some meaningful, albeit imperfect steps to implement the changes required by O bergefell 's mandate. See Doc. 126 at 31–32; see also Doc. 120 at 10 ("It is uncontroverted that [p]laintiffs now can get marriage licenses...on the same terms and conditions as any other couple"); Doc. 120-1 at ¶ 3 (affidavit stating that the Kansas Department of Revenue had removed from its website the Notice stating that same-sex marriages are not recognized for income tax purposes and conceding that this Notice is no longer valid); Doc. 124-1 at ¶ 3 (affidavit stating that the Kansas Department of Revenue "is accepting tax returns for same sex married taxpayers for tax years 2014 and thereafter"); Doc. 120-2 at ¶ 3 (affidavit stating that the Kansas Division of Vehicles is "[i]n full compliance with... Obergefell " and the "issuance of a driver's license to a same-sex spouse now occurs in the same manner as it would for an opposite-sex spouse"); Doc. 120-3 (affidavit stating that "all state agencies have been directed to accept applications for health insurance coverage for same-sex spouses just as they accept applications for opposite-sex spouses").

Some remedial commitments "bear special gravity," depending, "of course, on who is making the promise[s] and the reliability of that party's past promises." Winzler v. Toyota Motor Sales U.S.A., Inc. , 681 F.3d 1208, 1211 (10th Cir.2012). So, the court decided to wait and see whether the Kansas officials sued in this case abided by their remedial assurances. Consistent with this approach, the court authorized the parties to supplement the record with additional undisputed facts material to its final decision whether to issue, or withhold, a permanent injunction. The court also established deadlines for such submissions and authorized a response to the other side's supplemental submission. As explained below, the parties availed themselves of these opportunities and made several additional rounds of submissions that the court had not requested.

B. ADDITIONAL SUBMISSIONS AND RESPONSES ADDRESSING COMPLIANCE WITH OBERGEFELL AND THE NEED FOR PERMANENT INJUNCTIVE RELIEF

On September 14 and 15, 2015, defendants provided additional submissions to show their compliance with Obergefell . See Docs. 129, 130. Defendants/Clerks Hamilton and Lumbreras submitted administrative orders from judges in eight judicial districts directing clerks to issue marriage licenses to qualified same-sex couples. Docs. 129-1, 129-2, 129-3. They also submitted amendments made to the Supreme Court of the State of Kansas' Rules to reflect a uniform marriage license application. Doc. 129-4. And they submitted declarations declaring that their offices are issuing marriage licenses to all qualified applicants, including same-sex couples. Docs. 129-5, 129-6.⁶

Defendants Mosier, Jordan, Kaspar, and Michael submitted four affidavits. In one of them, Mr. Keck, the Deputy Chief Counsel of the Kansas Department of Health and Environment ("KDHE"), asserts that new marriage license forms were distributed to Kansas district court clerks and they provide choices of "spouse" and "parent" to accommodate same-sex marriage applicants. Doc. 130-1 at 2. And, Mr. Keck confirms that the officials responsible for marriage-related functions were directed to comply with Obergefell . Doc. 130-1 at 2. Mr. Michael, the Director of the Kansas State Employee Health Benefits Plan, asserts that "all state agencies have been directed to accept applications for health insurance coverage for same-sex spouses...." Doc. 130-2 at 2. Ms. Kaspar, the Director of the Division of Vehicles for the Kansas Department of Revenue, declares that "[d]river's licenses are being issued to all applicants under the same terms and conditions whether they are parties to a same-sex marriage or otherwise." Doc. 130-3 at 2. The Director of Taxation for the Kansas Department of Revenue, Mr. Stotts, asserts that "same sex married couples are now treated the same as opposite sex married couples for state taxation purposes" to comply with Obergefell. Doc. 130-4 at 2.

Plaintiffs took a different approach. They chose not to submit any materials on the first deadline. Instead, on the deadline for responding to defendants' submissions, they submitted three declarations that they characterized as a "response to Defendants' evidence regarding the need for injunctive relief." S...