Case 2:14-cv-02518-DDC-TJJ Document 61 Filed 12/13/14 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KAIL MARIE, et al,

)
Plaintiffs,
)
)
vs.
)
)
ROBERT D. MOSER, M.D., et al.,
)
Defendants. )

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

AMICUS CURIAE BRIEF OF WESTBORO BAPTIST CHURCH

REGARDING PLAINTIFFS SECOND MOTION
FOR PRELIMINARY INJUNCTION (DOC. 54)
In accord with this Courts November 7, 2014 Memorandum and Order denying
the request of Westboro Baptist Church, Inc.s (WBC) to intervene (Doc. 35), and in
compliance with D. Kan. Rule 7.6, WBC submits the following amicus curiae brief in
response and opposition to plaintiffs most recent motion for preliminary injunction [MPI]
(Doc. 54).
Initially, WBC incorporates herein by reference as though set forth herein verbatim
the full content of its renewed motion to intervene and supporting memorandum (Doc. 53).
The relief plaintiffs seeks forced names on drivers licenses; filing joint tax returns;
forcing their way onto their partners health insurance have no basis in law or fact; would
wreak havoc on the state system (already taxed financially); and would afford no real or
needed relief to these plaintiffs. This relief should not be granted until there is a thorough

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litigating of these new and exotic theories, up to the United States Supreme Court.
Plaintiffs seek to tear up the status quo; they have not remotely met their burden in seeking
such extraordinary relief. As further stated below, the motion for preliminary injunction
(second) should be denied.
1. Nature of the Matter before the Court:
New plaintiffs seek a preliminary injunction against new defendants that new
defendants recognize same-sex marriages for purposes of income tax returns, drivers
licenses, health care insurance for state employees and otherwise.
2. Statement of Facts:
After filing a First Amended Complaint, new plaintiffs seek the relief noted above. The
facts are set forth in plaintiffs memorandum in support of the sought preliminary
injunction (Doc. 55).
3. Statement of Question(s) Presented:
Are plaintiffs entitled to the extraordinary remedy of a preliminary injunction at this
early stage of the litigation? Inherent in that general question, have plaintiffs met the heavy
burden of establishing the four (4) well-known elements needed for such early injunctive
relief?
4. Argument:
Plaintiffs seek to turn the Kansas state government on its head in an unprecedented way
so their dignity is protected. Their extreme, over-the-top requests should be denied. The
MPI notes the four well-known factors for the Court to examine. What the MPI does not
share is the heavy burden plaintiffs must satisfy.
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It is well settled that a preliminary injunction is an extraordinary remedy, and that it

should not be issued unless the movants right to relief is clear and unequivocal.
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188, (10th Cir. 2003); Kikumura v. Hurley,
242 F.3d 950, 955 (10th Cir. 2001).
Each of the four elements must be satisfied by the movants or the request for a
preliminary injunction fails. Heideman, supra, 348 F.3d at 1189. Stated otherwise, the
party seeking a preliminary injunction must demonstrate (the) four elements. Lopez v.
Roark, 560 Fed. Appx. 809, 2014 U. S. App. LEXIS 9204 (10th Cir. 2014). Failure of proof
on any of the four is fatal.
Moreover, a mandatory preliminary injunction (such as the one our plaintiffs seek)
one which requires the nonmoving party to take affirmative action is an extraordinary
remedy and is generally disfavored. In other words, these plaintiffs with their exotic new
theories seek to rip up the status quo; they should be put to a high burden of proof given
their quest. Before a court may grant that type of relief, the movant must make a
heightened showing of the four factors. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010); Atty Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). This
heightened showing is especially required when the injunctive relief seeks to impact
government action taken in the public interest pursuant to a statutory or regulatory
scheme, again, like we have here. Heideman, supra, 348 F.3d at 1189.
In a word, plaintiffs simply fall short of clearing these high hurdles. The four elements
will be addressed serially:
Irreparable injury;
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There is no showing of irreparable injury; any temporary inconvenience can be

resolved by nominal damages, if it comes to that. There is no constitutional right to not
have your feelings hurt or your dignity touched.
By previous order of this Court, plaintiffs are allowed to marry same-sex in Kansas.
Thus, any stigma has been officially removed. That is further than the government
should have gone; and it is certainly as far as the Court should go, given the drastic harmful
impact on society as a whole, and the individual citizens of Kansas, including plaintiffs.
Threatened injury outweighs whatever damage the proposed injunction may
cause the opposing party;
Plaintiffs virtually concede this element; their memorandum spends exactly one
paragraph (two sentences) on this. Its comparable to the Tenth Circuits comments in
Lopez, supra: Lopez didnt even mention the third and fourth preliminary-injunction
factors, much less make a heightened showing of those factors.
The virtual inattention to this element by plaintiffs suggests the weakness in plaintiffs
position. Any threatened injury to plaintiffs pales up against the injury to defendants if
such an expansive injunction is entered. To accommodate the vast list of plaintiffs
demands (almost sure to grow with the passage of time) would require whole-scale
modification, repeal and upheaval of long-standing, well-established, expansive (and
expensive) and elaborate state government processes that cannot just be overturned or
undone in a day.

Millions of dollars of investment in technology and computer

programming would be impacted and possibly lost. Staff (both government and contract)

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would have to be trained. Policies and regulations would have to be reviewed and
modified. Such an injunction would knock Kansas state government into a cocked hat!
Nor is the requested injunction limited to the new party defendants. A careful reading
of the MPI and its supporting memorandum reveals plaintiffs are in fact seeking an
injunction reaching far beyond the new defendants and the agencies they represent. The
including phrase just before itemizing (a) through (c) in the MPI and supporting
memorandum shows this. New plaintiffs leave the door wide open with their including
language.

This is further shown by the following language from the supporting

memorandum: It is in the public interest for the Court to make clear that Kansas state
officials must cease enforcing the States marriage bans in any and all contexts.
(Emphasis added; Doc. 55 at p. 13).
It would be virtually impossible for the Court to enter such a broad, all-encompassing
order that would include presumably every state agency, every state official and every
act of every state employee that could possibly impact the lives of plaintiffs. The sheer
scope of any such attempted injunction would clearly harm defendants far beyond any
slight injury to plaintiffs.
Meanwhile, the impact on plaintiffs if negligible, if that. They can still drive; they can
still file their tax returns; they havent alleged they are utterly without health care; and in
fact those particulars are not really the issue; the real issue is that they want the government
to force every citizen, including every state employee, to give moral approval to their
manner of life. But even if you just examine the discrete immediate claims (in what will
undoubtedly be a long list of claims before this case is finished), again, the plaintiffs are
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not harmed; they are not left without the ability to fully function as a member of society;
and they have demonstrated no loss that qualifies for the kind of legal harm that warrants
the extreme remedy of an injunction that changes the status quo throughout state
government in the most sweeping way imaginable. The cost to the state which like many
(if not all) governments struggles with budget issues already far outweighs any possible
arguable harm to the plaintiffs.
An injunction would be adverse to the public interest; and,
Over and above the morality issue (previously addressed by WBC; see Docs. 19 and
53), the citizenry of Kansas are entitled to and expect a solid, stable, efficient and
competent government. The broad injunction sought by plaintiffs would instantly create
instability, confusion and chaos in that government.
Substantial likelihood of success.
Here, new plaintiffs rely on the recent Tenth Circuit opinion of Kitchen v. Herbert, 755
F.3d 1193 (10th Cir. 2014) and this Courts prior order granting a preliminary injunction
(Doc. 29). Neither gets the job done.
As to Kitchen, that opinion does not say plaintiffs are entitled to their requested
injunctive relief regarding drivers licenses, health insurance or income tax returns. That
holding was simply that Utahs ban on same-sex marriage was unconstitutional; nothing
more.
As to this Courts earlier injunction (Doc. 29), obviously that decision does not cover
this new far-reaching request or there would be no reason for the MPI.

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Tax returns: Kansass state income tax system is uniquely a state function, designed
to help carry out state governmental functions. Methods used in regards thereto are a
unique state legislative function. State taxation is within the authority of the legislature
of Kansas and any change relative thereto must come, if at all, by action of the Kansas
legislature. Republic Natural Gas Co. v. Axe, 197 Kan. 91, 95, 96, 415 P.2d 406 (1966).
While both the federal and state governments have their own taxing system, the two must
operate independently of each other which permits both governments to function with the
minimum of interference each with the other so as to not impair the taxing power of the
government imposing the tax or the appropriate exercise of the functions of government
affected by it. Clinton v. State Tax Com., 146 Kan. 407, Syl. 1, 71 P.2d 857 (1937).
The requested injunction would violate these well-established legal principles and
wreak havoc not only on state government but those who have planned their estates based
on current practices. Further, CPAs and other tax consultants/tax-preparers would have to
become trained and educated on any new temporary procedure(s), all of which would be
grossly wasteful if the injunction was later withdrawn or modified.
Drivers licenses: A drivers license is a privilege, not a natural, unrestrained right.
Martin v. Kan. Dept of Revenue, 285 Kan. 625, 632, 633, 176 P.3d 938 (2008). As such,
a drivers license is subject to reasonable regulations imposed by the state under its police
power in the interest of public safety and welfare. Id.
As the Tenth Circuit has noted, having a drivers license is a privilege, not a right, and
holders of a license are presumed to know the law upon which the privilege is conditioned.
Further, laws concerning regulation of drivers licenses are an important governmental
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interest implicating . . . inherent police power. Jorgensen v. Larsen, 1991 U. S. App.

LEXIS 10627 (10th Cir. 1991).
These authorities clearly belie the relief plaintiffs seek. Drivers licenses are obviously
used for many reasons, including air travel, voting, law enforcement interactions, etc. so
that system should not be tampered with until there is a full and final resolution to this
litigation, at the earliest. The potential for mass confusion and adverse impacts on many
other outside agencies and entities is too great. Imagine the law enforcement officer who
pulls over one of the plaintiffs or others similarly situated: Let me see your drivers
license, insurance card and vehicle registration -- and those documents show different
names. False arrests may result; law enforcement confusion will prevail. And this is just
one illustration.
Health insurance: The health insurance plan at issue involves state contracts with
outside vendors that have been painstakingly negotiated over many months and years,
featuring an open enrollment period that expired October 31, 2014. See, generally,
http://www.kdheks.gov/hcf/sehp/. To now turn that system on its ear would require an
undoing of these contracts, re-negotiations and a new open enrollment period, all of which
would open the vendors up to complaints from tens of thousands of other state employees
that have conducted their lives in accordance with those established contracts and
procedures, and could well retroactively impact costs for all state employees. This should
not be touched until there is a final decision in this case.
State agencies, including the new defendants, follow the laws on the books, both state
and federal. The constitutional amendment and statutes at issue in this litigation are still
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on the books. What more can we expect from our government than that it follow existing
laws? To upend all that is involved in state government on a hope and a prayer that
plaintiffs might ultimately prevail on these new claims is wrong! Especially when to do
so would involve this Court telling these state officials to simply ignore well-established
long-standing and organic law. What an awful message to send to the government and the
people.
For all the foregoing reasons, WBC submits that the request for preliminary injunctive
relief (round two) is unwarranted, unsupported, would harm the public, and should be
denied.
Respectfully submitted,
/s/ Margie J. Phelps
______________________________________
Margie J. Phelps, Ks. Bar No. 10625
Attorney at Law
P.O. Box 3725
Topeka, KS 66604
785-408-4598 (ph)
785-233-0766 (fx)
margie.phelps@cox.net
/s/ Rachel I. Hockenbarger
______________________________________
Rachel I. Hockenbarger, Ks. Bar No. 14442
Attorney at Law
P.O. Box 4944
Topeka, KS 66604
785-554-0127 (ph)
785-233-0766 (fx)
Rachel.hockenbarger@outlook.com
ATTORNEYS FOR MOVANT INTERVENOR
WESTBORO BAPTIST CHURCH, INC.

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Certificate of Service
I hereby certify that a copy of the foregoing amicus brief was served through the
Courts CM/ECF system on December 13, 2014, on all counsel of record herein.
/s/ Margie J. Phelps
______________________________________
Margie J. Phelps

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