IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Kail Marie, et al., )
)
Plaintiffs, )
)
v. ) Case No. 14-cv-2518-DDC-TJ J
)
Robert Moser, M.D., et al., )
)
Defendants. )

PLAINTIFFS REPLY MEMORANDUM REGARDING PLAINTIFFS MOTION FOR
PRELIMINARY INJ UNCTION OR TEMPORARY RESTRAINING ORDER
On October 10, 2014, Plaintiffs filed their complaint seeking injunctive relief and a
declaratory judgment that the Kansas constitutional and statutory provisions prohibiting same-
sex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution. Doc. 1. On October 13, 2014, Plaintiffs filed a
Motion for Preliminary Injunction and Temporary Restraining Order in which Plaintiffs asked
the Court to (1) enjoin Defendants and their officers, employees, and agents from enforcing
article 15, section 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-
2508, and any other sources of state law and (2) require Defendants and their officers,
employees, and agents in their official capacities to permit issuance of marriage licenses to same-
sex couples, pursuant to the same restrictions and limitations applicable to different-sex couples
freedom to marry, and to recognize marriages validly entered into by Plaintiffs. Doc. 3. On
October 18, responding to the Courts request, Plaintiffs filed a supplemental brief on abstention.
Doc. 7. On October 23, 2014, Defendant Moser and Defendants Hamilton and Lumbreras filed
separate responses in opposition to Plaintiffs Motion. Doc. 14 (Moser Response) and Doc. 15
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(Clerks Response).
1
Plaintiffs respectfully submit the following Reply Memorandum in
further support of their Motion for Preliminary Injunction and Temporary Restraining Order
INTRODUCTION
Under binding precedent from the U.S. Court of Appeals for the Tenth Circuit, state
officials may not deny the issuance of a marriage license to two persons, or refuse to recognize
their marriage, based solely upon the sex of the persons in the marriage union. Kitchen v.
Herbert, 755 F.3d 1193, 1199 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014).
See also Bishop v. Smith, 760 F.3d 1070, 1080 (10th Cir.) (State bans on the licensing of same-
sex marriage significantly burden the fundamental right to marry), cert. denied, 83 U.S.L.W.
3102 (U.S. Oct. 6, 2014). Each day that Kansas officials act in defiance of this directly
controlling precedent causes irreparable harm to Plaintiffs and other same-sex couples seeking to
vindicate their clearly established constitutional rights. Defendants and other Kansas officials
may disagree with that precedent, and they may wish to waste their time and the publics money
asking the Tenth Circuit to reconsider its precedent en banc or to petition the Supreme Court for
a writ of certiorari. But they do not have a right to continue to violate Plaintiffs clearly
established constitutional rights while they engage in that futile pursuit.
Defendants respond to the motion for a preliminary injunction with an assortment of
frivolous and far-fetched procedural arguments. In the section entitled Argument and
Authorities, Defendant Moser makes three basic arguments. Id., pp. 10-19. First, no relief is

1
The Clerks Response essentially adopts the Moser Response, but Defendants Hamilton and
Lumbreras submit this [separate] response to emphasize certain points specific to their position
as District Court Clerks in Kansas. Doc. 15, p. 1.
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available to Plaintiffs because they ostensibly lack standing and have sued the wrong defendants.
Id., pp. 10-14. Second, the federal district court should abstain from hearing this dispute because
of allegedly parallel proceedings in the Kansas Supreme Court. Id., pp. 14-16. Third, Plaintiffs
cannot meet the requirements for a preliminary injunction because other courts have ostensibly
stayed their decisions pending appeal. Id., pp. 16-19. Within each of these headings, Defendant
raises additional legal arguments. The Clerks Response embellishes certain of the arguments
advanced in the Moser Response and adds a few new ones. Plaintiffs will reply to the arguments
advanced by Defendants by subject matter.
I. MOSER AND THE DEFENDANT CLERKS ARE PROPER DEFENDANTS IN
A SUIT SEEKING THE ISSUANCE OF MARRIAGE LICENSES.

a. Plaintiffs suit seeks the right to marry, not recognition.
In Bishop v. Smith, two same-sex couples sued various Oklahoma state officials. One
couple, Mary Bishop and Sharon Baldwin, sought an Oklahoma marriage license. 760 F.3d at
1074-75. A second couple, Susan Barton and Gay Phillips, had married in another jurisdiction
and sought recognition of that marriage in Oklahoma. Id. at 1075. The Tenth Circuit ruled in
favor of the couple seeking an Oklahoma marriage license, see id. at 1079-82, and held that the
second couple had not sued a proper defendant for their claim seeking recognition of an out-of-
state marriage, id. at 1082-92.
The Plaintiffs in this case are seeking the freedom to marry in Kansas with a Kansas
marriage license, but Secretary Moser and the Defendant Clerks repeatedly and slyly attempt
to distort Plaintiffs claim into a claim seeking marriage recognition. See, e.g., Clerks
Response, Doc. 15, p. 7 (Plaintiffs dont just seek a marriage license; they seek recognition of
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their marriage for all purposes); Moser Response, Doc. 14, passim, repeatedly referring to
recognition. This is not a case about recognition of out-of state marriages. Plaintiffs seek the
freedom to marry in Kansas, and the injunctive relief they have requested is exactly the same
kind of injunctive relief that courts have provided for in every other state within the Tenth
Circuit. See, e.g., Bishop v. Smith, 760 F.3d at 1082 & 1096 (affirming the district courts
permanent injunction requiring defendant district court clerk to process and issue a marriage
license to the Bishop couple despite Oklahomas constitutional and statutory ban on same-sex
marriage); Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 U.S. Dist. LEXIS 100894,
*17, 2014 WL 3634834, *5 (D. Colo. J uly 23, 2014) (entering preliminary injunction to allow
issuance of marriage licenses inter alia), 2014 U.S. Dist. LEXIS 148123, *4 (D. Colo. Oct. 17,
2014) (making injunction permanent and entering final judgment in favor of plaintiffs); Guzzo v.
Mead, No. 14CV200SWS, 2014 U.S. Dist. LEXIS 148481, *21-22, 2014 WL 5317797, at
*9 (D. Wyo. Oct. 17, 2014) (entering preliminary injunction), 2014 U.S. Dist. LEXIS 150591,
*3 (D. Wyo. Oct. 21, 2014) (lifting temporary stay & immediately enjoining enforcement of laws
denying marriage licenses to same-sex couples, inter alia).
As discussed below, there is no question that Secretary Moser and the Defendant Clerks
are proper defendants for that marriage claim.
b. Plaintiffs have standing to sue Defendant Moser.
Defendants argue that Plaintiffs lack standing to sue Secretary Moser, who is not a
proper party defendant in this lawsuit under the analysis followed in Bishop v. Oklahoma, 333
Fed. Appx. 361, 2009 WL 1566802 (10th Cir. 2009) [Bishop I] and Bishop v. Smith, 760 F.3d
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1070 (10th Cir. 2014) [Bishop II]. Moser Response, Doc. 14, p. 2 (bold in original).
Specifically, Defendant Moser contends that he is merely the records custodian for marriage
licenses and has neither supervisory authority over the judicial officials (judges and district court
clerks) who are charged with issuing marriage licenses in Kansas nor sufficient involvement in
the issuance of marriage licenses to be a defendant amenable to suit under the Eleventh
Amendment. Id. Defendant further claims that [n]o case anywhere in the country, state or
federal, has held, implied, or suggested that the use of the terms bride and groom on marriage
licenses violates constitutional rights. Id.
Defendant Mosers involvement in marriage license processing is much more significant
than he would have the Court believe. Among other things, under Kansass statutes, Defendant
Moser is responsible for the following activities related to marriages in Kansas: (1) supervising
the registration of all marriages, Kan. Stat. Ann. 23-2507; (2) preparing blank forms used to
gather vital statistics related to marriage, Kan. Stat. Ann. 65-102; (3) supplying marriage
certificate forms to district courts, Kan. Stat. Ann. 23-2509; and (4) maintaining an index of
marriage records and providing certified copies of those records on request, Kan. Stat. Ann.
23-2512. Because these registration and enabling functions must be undertaken in order for
Plaintiffs marriages to be registered and on-record with the state (and thus be effective
marriages),plaintiffs have standing to sue Defendant Moser because he can redress the injuries to
Plaintiffs related to the forms, certificates, indexing, and marriage registration practices in
Kansas that fall under his control.
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Moreover, contrary to Defendants argument that no other case has involved a defendant
responsible for marriage license forms and registration, numerous cases have held that a
statewide official charged with preparing the marriage license forms is a proper defendant for
claims by same-sex couples seeking marriage licenses. In Bostic v. Schaefer, for example, the
Fourth Circuit held that the Virginia Registrar of Vital Records was a proper defendant for
plaintiffs seeking a marriage license because of her job duties related to preparing the marriage
license forms:
Rainey's promulgation of a marriage license application form that does not allow
same-sex couples to obtain marriage licenses resulted in Schaefers denial of
Bostic and Londons marriage license request. For the reasons we describe above,
this license denial constitutes an injury. Bostic and London can trace this injury to
Rainey due to her role in developing the marriage license application form in
compliance with the Virginia Marriage Laws, and the relief they seek would
redress their injuries. Bostic and London consequently have standing to sue
Rainey.

760 F.3d 352, 372 (4th Cir. 2014). Accord Wolf v. Walker, 14-CV-64-BBC, 2014 WL 1729098
(W.D. Wis. Apr. 30, 2014) (holding that state registrar was proper defendant because if
plaintiffs prevail on their claims, they could seek an injunction requiring [registrar] to amend
these documents so that they are inclusive of same-sex couples).
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For these reasons, Plaintiffs have standing to sue Defendant Moser in this case.
2

c. Plaintiffs have standing to sue Defendants Hamilton and Lumbreras.
The Tenth Circuit has already held in Bishop II that state district court clerks are proper
defendants in lawsuits seeking the freedom to marry. See Bishop II, 760 F.3d at 1079 n.3 (finding
standing to sue Tulsa County district court clerk for inability to obtain marriage licenses). Cf.
Kitchen, 755 F.3d at 1201 (We have no doubt that . . . plaintiffs possessed standing to sue the
Salt Lake County Clerk based on their inability to obtain marriage licenses from the Clerks
office.).
Even though the Oklahoma clerks that were sued in Bishop II were also employees of the
state district courts, Defendants argue that Kansas clerks in this case may not be sued in their
official capacities because of judicial immunity. Defendants contend that [t]he relief
requested against Defendants Hamilton and Lumbreras is beyond the Courts subject matter
jurisdiction because it is sought against state judicial officers, who are exempt from preliminary
injunctive relief under the plain language of 42 U.S.C. 1983, Buchheit v. Green, 705 F.3d 1157

2
Defendant Moser also asserts that Plaintiffs would have to sue other state officials to ensure
that the marriage licenses they receive have any legal value. In support of that argument he
asserts that [t]he relief ultimately granted in Bishop was a judgment against the State of
Oklahoma, which would be lacking in this case. Moser Response at 14. Moser is wrong.
Although the Bishop plaintiffs initially sued the State of Oklahoma, the district court
subsequently dismissed the State of Oklahoma as a nominal party to the case. See Bishop v.
U.S. ex rel. Holder, 962 F.Supp.2d 1252, 1260 (N.D. Okla. 2014). The State of Oklahoma is
nevertheless bound by the Bishop decision and the State of Kansas will likewise by bound by a
decision in this case because governmental officials were sued in their official capacity under
Ex parte Young, and an official-capacity suit is, in all respects other than name, to be treated as
a suit against the [governmental] entity . . . for the real party in interest is the entity. Kentucky v.
Graham, 473 U.S. 159, 166 (1985).
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(10th Cir. 2012), and Knox v. Bland, 632 F.3d 1290 (10th Cir. 2011). Moser Response, Doc.
14, p. 1 (bold in original). See also Clerks Response, Doc. 15, p. 5. Essentially, this argument
rests on the proposition that injunctive relief is barred by the Federal Courts Improvement Act of
1996. Moser Response, Doc. 14, pp. 12-13; Clerks Response, Doc. 15, p. 5.
Once again, Defendants are wrong. In 1996, Congress inserted into 1983 provisions to
immunize judicial officers from injunctive relief for their judicial acts without granting
declaratory relief first. Federal Courts Improvement Act of 1996, Pub. L. 104-317, 309(c).
Before 1996, judges were absolutely immune from lawsuits seeking damages based on actions
taken in their judicial capacity, but judges could be sued for injunctive relief under Pulliam v.
Allen, 466 U.S. 522 (1984). In 1996, Congress overruled Pulliam to extend immunity for actions
taken in a judicial capacity to suits for injunctive relief as well. See Sheldon Nahmod, Civil
Rights and Civil Liberties Litigation: The Law of Section 1983, 7:64-65 (4th ed. 2012) (West).
But both before and after 1996, the immunity provided for judicial acts has always been
limited to actions taken in the judges judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991)
(citing Forrester v. White, 484 U.S. 219, 227-29 (1988) and Stump v. Sparkman, 435 U.S. 349,
360 (1978)). In determining whether an act by a judge is judicial, thereby warranting absolute
immunity, we are to take a functional approach, for such immunity is justified and defined by
the functions it protects and serves, not by the person to whom it attaches. Bliven v. Hunt, 579
F.3d 204, 209-210 (2d Cir. 2009) (quoting Forrester, 484 U.S. at 227). [T]he factors
determining whether an act by a judge is a judicial one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations of the parties,
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i.e., whether they dealt with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S.
349, 362 (1978). In the Federal Courts Improvement Act, Congress codified that distinction by
limiting immunity for injunctive relief in any action brought against a judicial officer for an
act or omission taken in such officers judicial capacity. 42 U.S.C. 1983 (emphasis added).
Even though marriage licenses are issued by a court clerk, issuing those licenses is a
ministerial act, not a judicial act that is immune from injunctive relief. Cf. Garner v. Green
991 F.2d 805 (Table), 1993 U.S. App. LEXIS 8612, *6 (10th Cir. 1993) (unpublished) (Because
the filing of documents is a ministerial act, the clerk is not absolutely immune from claims in that
regard.). Indeed, in the Oklahoma marriage litigation, the Tenth Circuit already found that the
issuance of marriage licenses by district court clerks is a ministerial act. Bishop I, 333 Fed.
Appx. at 365. After remand, the federal district court allowed plaintiffs to amend their complaint
to add as a party defendant the Tulsa County district court clerk who had denied the Bishop
couples application for a marriage license and, in its final judgment, permanently enjoined the
defendant district court clerks enforcement of Oklahomas constitutional and statutory
prohibitions on same-sex marriage. Bishop II, 760 F.3d at 1075-76. Because Kansass system
for issuing marriage licenses is virtually the same as Oklahomas, Plaintiffs respectfully request
that the Court find that the issuance of a marriage license in Kansas is a ministerial act and is
thus not subject to claims of absolute judicial immunity.
If the Court prefers, it could take a more analytical approach to the question by assessing
the factors determining whether an act by a judge is a judicial[.] Stump v. Sparkman, 435
U.S. at 362. In assessing those factors, courts must look to state law. Id. In addition, courts
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should specifically consider whether: (1) the offending action is a normal judicial function; (2)
it occurred in the judges courtroom or chambers; (3) the controversy involved a case pending
before the judge; and (4) the confrontation arose directly and immediately out of a visit to the
judge in his official capacity. Ammons v. Baldwin, 705 F. 2d 1445, 1447 (5th Cir. 1983)
(quoting Brewer v. Blackwell, 692 F.2d 387, 396 (5
th
Cir. 1982), cert. denied, 465 U.S. 1006
(1984)). The Court should also consider whether the act at issue is performed in a prescribed
manner in obedience to the mandate of legal authority, without regard to or the exercise of his
own judgment upon the propriety of the act being done. Cook v. Topeka, 654 P.2d 953, 957
(Kan. 1982) (holding, in context of 1983 claim, that routine recall of warrant upon payment of
traffic fine is wholly ministerial in nature) (quotation omitted).
In Kansas, the issuance of marriage licenses is not a judicial act; it is a classic ministerial
act. People applying for and obtaining marriage licenses deal primarily with deputy court clerks
in the clerks offices and generally not with judges. Certainly, the issuance of marriage licenses
involves neither judicial proceedings in courtrooms or in judges chambers nor any case or
controversy for judicial resolution. Under Kansas statutes, [t]he clerks of the district courts or
judges thereof . . . shall issue a marriage license, Kan. Stat. Ann. 23-2505(a), to people who
meet the four statutorily established eligibility requirements, specifically that they are over the
age of 18, that they are not closely related by blood, that they are not presently married to
another person, and that they are not the same sex as their chosen spouse, Kan. Stat. Ann. 23-
2501, 2503, & 2505(c). Thus, because district court clerks issue marriage licenses in Kansas in
accordance with prescribed legal mandates and without exercising judicial judgment or
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discretion, the issuance of marriage licenses in Kansas is a ministerial act. In fact, in his recent
Administrative Order regarding the issuance of marriage licenses to same-sex couples in Douglas
County, Chief District Court J udge Fairchild specifically stated that [t]he court performs an
administrative function when it issues a marriage license. In exercising its administrative
functions the court has a different role than it does when it rules on a petition that has been filed
in this court as a contested matter. See Admin. Ord. 14-13, available at http://www.douglas-
county.com/district_court/docs/pdf/adminorder_14-13.pdf.
3

For these reasons, the 1996 amendment to 1983 does not bar the entry of injunctive
relief against Defendant Clerks with respect to the issuance of marriage licenses to same-sex
couples.
4

d. Declaratory and injunctive relief is available here.
In the remainder of their attack on Plaintiffs standing, Defendants produce a hodgepodge
of reasons for why injunctive and declaratory relief is somehow unavailable. Each of these
arguments can be dealt with summarily.


3
Other courts have noted that the issuance of marriage licenses is ministerial. See, e.g., U.S. ex
rel. Feldman v. City of New York, 808 F. Supp. 2d 641, 656-7 (S.D.N.Y. 2011) (noting the
issuance of a marriage license as an example of a ministerial act); Pedersen v. Burton, 400 F.
Supp. 960, 963 (D.D.C. 1975) (citing legislative report describing issuance of marriage license as
performance of a ministerial function).

4
For similar reasons, Plaintiffs are not seeking the equivalent of a federal mandamus order to
state court judges in the performance of their judicial duties. Moser Response at 11-12 (citing
Bucheit v. Green, 705 F.3d 1157 (10th Cir. 2012) and Knox v. Bland, 632 F.3d 1290, 1292 (10th
Cir. 2011)). They are seeking an injunction for the performance of a ministerial function that
happens to be performed by court clerks.
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Eleventh Amendment.
Eleventh Amendment immunity is not absolute and is subject to exceptions. Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). [U]nder Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a plaintiff may bring suit against individual state
officers acting in their official capacities if the complaint alleges an ongoing violation of federal
law and the plaintiff seeks prospective relief. Id. Under Ex parte Young, certain official-
capacity suits are excepted from the doctrine of sovereign immunity as a way to vindicate federal
rights and, in the process, ensure the supremacy of federal law. Crowe & Dunlevy, P.C. v.
Stidham, 640 F. 3d 1140, 1156 (10th Cir. 2011). In application, Ex parte Young allows a court
to enjoin a state official from enforcing an unconstitutional statute. Cressman v. Thompson,
719 F. 3d 1139, 1146 n.8 (10th Cir. 2013).
Defendant Moser asserts that Plaintiffs have not brought a proper Ex parte Young suit
because instead of seeking prospective relief, Plaintiffs are ostensibly seeking to remedy the
past event of [the defendant district court clerks] refusal to issue marriage licenses. That is
absurd. Plaintiffs are not seeking to correct or seek damages from the failure to issue marriage
licenses in the past. Plaintiffs seek a preliminary injunction prohibiting Defendant Clerks from
enforcing the Kansass unconstitutional laws prohibiting same-sex marriage in the future.
Plaintiffs also seek prospective injunctive relief from Defendant Moser in his capacity as the
vital records registrar and custodian for Kansas. These remedies are not barred by the Eleventh
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Amendment and are, in fact, clearly available to the Court and to Plaintiffs under Ex parte
Young.
5

Domestic relations exception.
The domestic relations exception is a narrow exception to federal courts diversity
jurisdiction that encompasses only cases involving the issuance of a divorce, alimony, or child
custody decree. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). It does not affect federal
courts federal question jurisdiction, Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d
943, 946-47 (9th Cir 2008) (collecting cases), and it does not affect constitutional challenges to
an underlying statutory scheme, Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1111 (10th Cir.
2000).
Anti-Injunction Act.
The Defendant Clerks assert that relief is barred by the Anti-Injunction Act because a
decision in favor of Plaintiffs would ostensibly have the effect of interfering with the mandamus
petition pending before the Kansas Supreme Court. But the Anti-Injunction Act does not apply
to claims under 42 U.S.C. 1983, see Mitchum v. Foster, 407 U.S. 225, 242 (1972), and the
Plaintiffs are not asking this Court to enjoin the state proceedings in any event. Plaintiffs are
simply asking this Court to rule on the merits of their own claims.


5
As part of any final judgment, Plaintiffs will also seek a declaratory judgment that the Kansas
constitutional and statutory prohibitions against same-sex marriage violate Plaintiffs federal
constitutional rights under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment.
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II. ABSTENTION IS NEITHER REQUIRED NOR APPROPRIATE.
Plaintiffs have addressed abstention in the supplemental brief filed on October 18, 2014.
Doc. 7. Plaintiffs here address a few specific issues raised by Defendants Responses.
Although Defendant Moser initially states that he does not assert that relief should be
denied under either [Younger or Pullman] abstention doctrines at this time, he goes on to
speculate that, in deciding the mandamus action now pending before the Supreme Court of
Kansas, that Court may recognize a right to appeal in favor of Plaintiffs, which would
according to Defendant Moser bar relief in the federal courts. Moser Response, Doc. 14, p. 16.
The Defendant seems to suggest this is grounds for the federal district court to abstain. But this
is essentially an argument that plaintiffs in cases brought under 1983 must exhaust other
available remedies. For more than fifty years, the Supreme Court has consistently and forcefully
rejected such contentions. See Patsy v. Board of Regents of Fla., 457 U.S. 496, 500 (1982).
Moreover, a federal courts obligation to hear and decide a case is virtually unflagging.
Parallel state-court proceedings do not detract from that obligation. Sprint Communications,
Inc. v. Jacobs, 134 S. Ct. 584, 591-92 (2013).
Defendant Clerks raise a new abstention doctrine, Burford abstention. In Burford v. Sun
Oil Co., the Supreme Court held that the lower federal court should have dismissed the federal
case because it involved complex questions of Texas oil and gas law and there was adequate
state court review of the complex state regulatory scheme based primarily on local factors. 319
U.S. 315, 325-34 (1943). That doctrine has nothing to do with the present case. Kansass
system of issuing marriage licenses is quite simple, and an injunction preventing the Defendant
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Clerks from enforcing Kansass laws prohibiting same-sex marriage will not interfere with that
scheme or with the Kansas Supreme Courts role of administrator of the state court system. As
the Tenth Circuit explained when it held that Burford abstention did not apply to a constitutional
challenge to Utahs adoption statutes:
Plaintiff's constitutional claim does not present difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the results in the case then at bar. Plaintiff's constitutional claim
instead requires the district court to determine whether a Utah statute violates
Plaintiff's federal constitutional rights. Plaintiff's claim therefore only asks the
district court to act within its area of expertise, rather than to invade the province
of the State. Accordingly, Burford abstention and related theories do not call for
avoiding a decision on the Plaintiff's constitutional claim for invalidation of the
Utah Adoption statutes.

Johnson, 226 F.3d at 113.

Underlying the Clerk Defendants argument about Burford abstention is the premise that
granting relief to Plaintiffs would interfere with the Kansas Supreme Courts goal of statewide
uniformity among clerks in all the counties. Clerks Response at 11. But the premise of that
argument is false. The Clerk Defendants in this case are being sued in their official capacities,
and a judgment against them would be binding on all other clerks in the Kansas Unified Court
system as a matter of privity and issue preclusion. See Spiess v. Meyers, 483 F. Supp. 2d 1082,
1089 (D. Kan. 2007) (privity exists between between government employees in their official
capacities); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (In the claim preclusion
context, governmental officials sued in their official capacities for actions taken in the course of
their duties are considered in privity with the governmental body.).
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Even if other clerks were not bound as a matter of privity, a preliminary injunction in
Plaintiffs favor would not prevent the Kansas Supreme Court from ensuring a uniform practice
among all clerks. It could simply order all clerks to follow the same uniform policy that this
Court has ordered based on the requirements of the Constitution. A state policy toward
uniformity cannot trump individuals ability to vindicate their federal constitutional rights. Wolf
v. Walker, 9 F. Supp. 3d 889, 889 (W.D .Wis. 2014) (rejecting Wisconsins argument that, in
order to ensure statewide uniformity plaintiffs must forfeit their case unless they join other
same-sex couples who wish to marry in every Wisconsin county or replead their case as a class
action)
Because no abstention doctrine applies to this case, plaintiffs respectfully urge the Court
to exercise its jurisdiction over this case and to decide the federal constitutional issue at the heart
of this case.
III. PLAINTIFFS ARE ENTITLED TO A SPEEDY PRELIMINARY INJ UNCTION
The Tenth Circuit has held that [a] state may not deny the issuance of a marriage license
to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in
the marriage union. Kitchen v. Herbert, 755 F.3d at 1199. See also Bishop II, 760 F.3d at 1080
(State bans on the licensing of same-sex marriage significantly burden the fundamental right to
marry).
In the face of this clear and unambiguous precedent, Defendant Moser makes the draw-
dropping assertion that [w]hen a circuit court decision is inconsistent with [State] Supreme
Court precedent and the [State] Constitution, there is no obligation to disregard the Constitution
and instead follow the erroneous circuit court decision. Id., p. 18, citing Circuit J udge Kellys
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dissents in Kitchen and Bishop II. Defendant further contends that [t]his Court is not compelled
to apply the conclusions reached in the Tenth Circuit cases relied on by plaintiffs in preference to
the conclusions reached in the case of In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120, cert.
denied sub nom, Gardiner v. Gardiner, 537 U.S. 825 (2002). Doc. 14, p. 17 (bold in original).
6

The Defendants can make whatever arguments they wish in asking the Tenth Circuit to
grant rehearing en banc or asking the Supreme Court to accept certiorari. But they cannot
ignore Plaintiffs clearly established rights under existing precedent in the meantime. As J udge
Skavdahl so aptly made this point in his recent decision enjoining Wyomings ban on same-sex
marriage: It is not the desire or preference of this Court to, with the stroke of a pen, erase a
States legislative enactments. Nonetheless, the binding precedent of Kitchen and Bishop
mandate this result, and this Court will adhere to its Constitutional duties and abide by the rule of
law. Guzzo v. Mead, No. 14CV200SWS, 2014 WL 317797, at *9 (D. Wyo. Oct. 17, 2014).
In further support of their argument that the Court here should deny preliminary
injunctive relief, Defendants assert that [e]very federal court that has either granted a
preliminary injunction or a judgment on the merits in a same-sex marriage case has stayed the
effect of that decision to permit exhaustion of appeal rights. Moser Response, Doc. 14, p. 2. In
fact, however, ever since the Supreme Court denied certiorari of the marriage cases on October
6, 2014, every federal court has denied requests for a stay pending appeal and at most

6
Federal district courts are, of course, bound to follow the precedent of federal courts of appeals,
not state supreme courts. In any event, the Kansas Supreme Court did not address or consider
any federal constitutional arguments in Gardiner. That case has absolutely nothing to do with
this proceeding.
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18

provided an extremely short interim stay to allow defendants to seek emergency relief from a
higher court, which was also ultimately denied. See General Synod of the United Church of
Christ v. Resinger, No. 3:14cv00213MOCDLH, 2014 WL 5092288 (W.D.N.C. Oct. 10,
2014) (no stay); Hamby v. Parnell, No. 3:14cv00089TMB, 2014 WL 5089399, at *23 (D.
Alaska Oct. 12, 2014) (injunction with no stay), Fisher-Borne v. Smith, Nos. 1:12CV589,
1:14CV299, 2014 WL 5138914 (M.D.N.C. Oct. 14, 2014) (injunction with no stay); Majors v.
Horne, No. 2:14cv00518 J WS, 2014 WL 5286743, at *1 (D. Ariz. Oct. 17, 2014) (A stay of
this decision to allow defendants to appeal is not warranted); Connolly v. Jeanes, No. 2:14cv
00024, 2014 WL 5320642, at *1 (D. Ariz. Oct. 17, 2014) ([T]his court declines to stay the
effect of this order.); Guzzo v. Mead, No. 14CV200SWS, 2014 WL 317797, at *9 (D. Wyo.
Oct. 17, 2014) (temporary stay of one week). Indeed, the Supreme Court itself has denied
Idahos application for stay pending a petition for certiorari, Otter v. Latta, 14A374, 2014 WL
5094190 (U.S. Oct. 10, 2014), and Alaskas application for a stay pending appeal, Parnell v.
Hamby, 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014). These recent stay denials are a sharp
departure from the Supreme Courts previous actions of granting stays in marriage equality
cases. Because the injunctive relief ordered in these cases is now effective, Defendants
argument is wholly meritless. In fact, the trend actually counsels strongly in favor of this Court
issuing the preliminary injunctive relief Plaintiffs seek without delay.

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19

CONCLUSION
For all of these reasons, Plaintiffs respectfully ask the Court to enter a preliminary
injunction enjoining Defendants from enforcing the challenged Kansas laws prohibiting same-
sex marriage.
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. J ohnson, 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

J oshua 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


Case 2:14-cv-02518-DDC-TJJ Document 20 Filed 10/27/14 Page 19 of 20
20

Certificate of Service
I certify that, on October 27, 2014, the foregoing document was served by e-mail on the
following: J effrey A. Chanay, Chief Deputy Attorney General for the State of Kansas,
jeff.chanay@ksag.org; Steve R. Fabert, Asst. Attorney General, Steve.Fabert@ag.ks.gov,
attorney for Defendant Moser, and M.J . Willoughby, Asst. Attorney General,
MJ .Willoughby@ag.ks.gov, attorney for defendants Hamilton and Lumbreras.

/s/ Stephen Douglas Bonney

Case 2:14-cv-02518-DDC-TJJ Document 20 Filed 10/27/14 Page 20 of 20