Waters v. Ricketts
| Decision Date | 02 March 2015 |
| Docket Number | No. 8:14CV356.,8:14CV356. |
| Citation | 48 F.Supp.3d 1271 |
| Parties | Susan WATERS, Sally Waters, Nickolas Kramer, Jason Cadek, Crystal Von Kampen, Carla Morris–Von Kampen, Gregory Tubach, William Roby, Jessica Kallstrom–Schreckengost, Kathleen Kallstrom–Schreckengost, Marjorie Plumb, Tracy Weitz, Randall Clark, Thomas Maddox, 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. |
| Court | U.S. District Court — District of Nebraska |
Amy A. Miller, American Civil Liberties Union Foundation, Lincoln, NE, Angela J. Dunne, Susan A. Koenig, Koenig, Dunne Law Firm, Omaha, NE, Joshua Block, Leslie Cooper, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.
Danielle L. Jones, David T. Bydalek, David A. Lopez, James D. Smith, Ryan S. Post, Attorney General's Office, Lincoln, NE, for Defendants.
This matter is before the court on the plaintiffs' motion for a preliminary injunction, Filing No. 10. This is an action for violation of civil rights brought pursuant to 42 U.S.C. § 1983. The plaintiffs seek declaratory and injunctive relief for violation of rights protected by the Fourteenth Amendment by virtue of Nebraska's exclusion of same-sex couples from marrying and its prohibition against recognizing the marriages of same-sex couples validly entered into in other jurisdictions under Neb. Const. art. I, § 29 (hereinafter, “Section 29” or “the Amendment”).
The court heard oral argument on the motion on February 19, 2015. The parties offered affidavits in support of their respective positions. See Filing No. 10, Index of Evid., Exs. A to N; Filing No. 44, Index of Evid., Exs. 1–3. There are no substantive objections to the affidavits for purposes of this motion.1 In response to questioning by the court, the parties requested and were granted leave to submit additional materials. The court has received and reviewed those materials. See Filing No. 51 and Filing No. 52.
The plaintiffs challenge the constitutionality of Section 29 of the Constitution of the State of Nebraska. The challenged amendment provides Neb. Const. art. I, § 29. The plaintiffs are same-sex couples who seek to marry in Nebraska or to have their marriages from other states recognized in Nebraska. They assert claims for deprivation of their fundamental right to marry and allege discrimination on the basis of sexual orientation and gender in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The defendants (hereinafter referred to, collectively, as “the State”) are Nebraska officials charged with enforcing the State's marriage laws.
The evidence establishes that plaintiffs Sally and Susan Waters, ages 58 and 53, have been in a committed relationship for over fifteen years. They were married in a religious ceremony in Nebraska in 1998, and were married in 2008 in California. They have two adopted children, ages 13 and 10. The children were adopted in California. They have also been legal guardians of a teenager, now 18, since 2011.
Sally Waters was diagnosed with Stage III breast cancer in 2013. She was diagnosed with Stage IV metastatic breast cancer in April 2014. The cancer has spread to her spine and it was disclosed at the hearing that her doctors have recently discovered another tumor. Susan Waters carries health insurance for the entire family through her employer. The portion of the employer-paid premium for Sally is taxed as income to Susan. Neither of them has survivor benefits.
Susan and Sally Waters have shown that it causes them great distress to know their marriage is not recognized under Nebraska law. They are particularly distressed by the fact that when Sally Waters passes away, the status on her death certificate will state “single.” The fact that their marriage is not recognized is stigmatizing and demeaning to the Waterses and their children. Further they have shown that when Sally Waters passes away, Susan will not collect benefits as a widow since their marriage is not recognized in Nebraska. Neither will she be entitled to collect Social Security retirement benefits as Sally Waters's spouse. Also, Susan Waters will be unable to roll Sally Waters's 401K benefits into her own IRA, rather, she will be required to pay taxes on the benefits. In addition, the Waterses have shown that they are required to file Nebraska taxes as “single,” as opposed to “married,” costing them higher taxes and tax-preparation fees.
They seek the ability to make medical decisions on each other's behalf. They have shown that they will suffer immediate and irreparable financial harm when Sally Waters passes away because Susan Waters will be required to pay 18% inheritance tax on Sally Waters's share of property they jointly own rather than the spousal rate of 1%. Further, she will not be entitled to a widow's homestead exemption. They have also shown that the State's nonrecognition of their marriage is hurtful and demeaning to them and to their children.
Plaintiffs Nickolas Kramer and Jason Cadek, ages 42 and 37, have been in a committed relationship for ten years. They were married in 2013 in Iowa. They are the parents of a three–year–old girl that Nickolas Kramer adopted in a single parent adoption in Nebraska. They have shown that the lack of a legal parent-child relationship between the child and Jason Cadek denies their daughter important protections and resources and causes them profound stress and insecurity. They have to file taxes in Nebraska as “single,” causing expense. Jason Cadek carries health insurance on the entire family. However, the employer-paid portion of the premium to cover Nickolas is imputed as taxable income. Neither of them has survivor benefits.
Plaintiffs Carla Morris–Von Kampen and Crystal Von Kampen, ages 40 and 35, have been in a committed relationship for five years. They were married in 2013 in Iowa. Crystal Von Kampen retired from the United States Navy after serving eight years. She suffers from PTSD. She has shown she was not allowed to get a Veterans Administration (“VA”) veteran and spouse loan because her marriage to Carla Morris–Von Kampen is not recognized in Nebraska, costing them $11,000.00 more on their loan. Crystal Von Kampen has also shown that Carla Morris–Von Kampen's daughter from a previous marriage is unable to take advantage of a tuition waiver granted to stepchildren of disabled veterans because the marriage is not recognized in Nebraska, resulting in increased costs of $5600.00. They also have to file Nebraska taxes as “single,” causing them expense. Crystal carries health insurance for the entire family through Military TriCare benefits. Although Crystal Von Kampen has a survivor benefit through the VA, she does not know whether this will follow federal or state rules.
Plaintiffs Jessica Kallstrom–Schreckengost and Kathleen Kallstrom–Schreckengost, ages 33 and 29, have been in a committed relationship for ten years and were married in 2010 in Massachusetts. They have a nine-month-old son, who was born in New York. They want more children but they worry about the fact that only one partner would be the child's legal parent. They also file taxes as “single,” causing them expense. Neither of them has survivor benefits. They purchased health insurance for their family through the Healthcare Marketplace. They have shown that denying the existence of their marriage is hurtful and demeaning to them and to their child.
Plaintiffs William Roby and Gregory Tubach, ages 49 and 57, have been in a committed relationship for twenty-eight years. They live in Lincoln, Nebraska, and want to get married in Nebraska since it is their home and their friends and extended family live in Nebraska. They have taken steps to replicate the protections of marriage such as preparing wills, powers of attorney, and healthcare directives, which has caused them significant expense, but find that the execution of such documents provides only a fraction of the protections that marriage would provide. In addition, they desire to obtain the security and dignity that comes with being married.
Marjorie Plumb and Tracy Weitz, ages 55 and 49, have been in a committed relationship for over ten years. They were married in 2008 in California. They have shown they will not be recognized as spouses by medical providers regarding decision-making and access to medical records. They are denied the peace of mind of knowing that when one of them dies, the other will be able to retain all of their shared property, including their jointly owned home, as opposed to having to pay 18% Nebraska inheritance tax. They have hired attorneys to draw up wills and powers of attorney at an expense of about $1,000.00, but are aware that the documents provide only a fraction of the protections that come with marriage. They have to file Nebraska taxes as “single.” They have also shown that the nonrecognition of their marriage is demeaning and hurtful and that they feel like second-class citizens. They have purchased health insurance through the Healthcare Marketplace. Neither of them has survivor benefits.
Plaintiffs Randall Clark and Thomas Maddox are 57 and 61 years old. They have been in a committed relationship for over thirty years. They were married in 2008 in California and they presently live there....
To continue reading
Request your trial