Marie v. Moser

65 F.Supp.3d 1175

Kail MARIE, et al., Plaintiffs

v.Robert MOSER, M.D., in his 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 Nov. 4, 2014.

Stephen D. Bonney, ACLU Foundation of Kansas, Kansas City, MO, for Plaintiffs.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiffs in this lawsuit seek injunctive and declaratory relief under 42 U.S.C. § 1983. Specifically, they ask the Court to declare unconstitutional and enjoin defendants from enforcing certain provisions of Kansas law that prohibit plaintiffs and other same-sex couples from marrying.¹ Plaintiffs also ask the Court to order defendants (and their officers, employees, and agents) to issue marriage licenses to same-sex couples on the same terms they apply to couples consisting of a man and a woman, and to recognize marriages validly entered into by plaintiffs.

The case, now pending on plaintiffs' motion for a preliminary injunction (Doc. 3), requires the Court to decide whether Kansas' laws banning same-sex marriages violate the Constitution of the United States. Judging the constitutionality of democratically enacted laws is among “the gravest and most delicate” enterprises a federal court ever undertakes.² But just as surely, following precedent is a core component of the rule of law. When the Supreme Court or the Tenth Circuit has established a clear rule of law, our Court must follow it.³

Defendants have argued that a 1972 Supreme Court decision controls the outcome here. The Tenth Circuit has considered this proposition and squarely rejected it.⁴ Consequently, this Order applies the following rule, adopted by the Tenth Circuit in Kitchen v. Herbert, to the Kansas facts:

We hold that the Fourteenth Amendment [to the United States Constitution] protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws. 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.⁵

Because Kansas' constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas' same-sex marriage ban violates the Fourteenth Amendment to the Constitution. Accordingly, the Court grants plaintiffs' request for preliminary relief and enters the injunction described at the end of this Order. The following discussion explains the rationale for the Court's decision and addresses the litany of defenses asserted by defendants.

Background

Plaintiffs are two same-sex couples who wish to marry in the state of Kansas. Defendants are the Secretary of the Kansas Department of Health and Environment and the Clerks of the Sedgwick and Douglas County District Courts. Plaintiffs' affidavits establish the facts stated below. Defendants never contest the factual accuracy of the affidavits, so the Court accepts them as true for the purpose of the current motion. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir.2013) (a court deems uncontested facts established by affidavit as admitted for purpose of deciding a motion for preliminary injunction) (citations and subsequent history omitted).

A. Plaintiffs

1. Kail Marie and Michelle Brown

Plaintiffs Kail Marie and Michelle Brown live together in Lecompton, Kansas, which is located in Douglas County. Ms. Marie and Ms. Brown assert they have lived in a committed relationship for twenty years. Except that they both are women, Ms. Marie and Ms. Brown meet all other qualifications for marriage in the state of Kansas. On October 8, 2012, Ms. Marie appeared at the office of the Clerk of the Douglas County District Court to apply for a marriage license so that she and Ms. Brown could marry. The deputy clerk, working under the supervision of Clerk Hamilton, asked for Ms. Marie and Ms. Brown's personal information and identification, and wrote down their information on an application form. The deputy clerk then gave the form to Ms. Marie and instructed her to return it no sooner than Monday, October 13, after Kansas' statutory three-day waiting period for issuing a marriage license had expired.

The next day, Chief Judge Robert Fairchild of the Seventh Judicial District, which consists of Douglas County, issued Administrative Order 14–13. In pertinent part, it states:

The court performs an administrative function when it issues a marriage license.... The Court's role in administrative matters is to apply and follow the existing laws of the State of Kansas. Recently, the United States Supreme Court declined to review several cases in which the Circuit Courts held that similar provisions contained in the constitutions of other states violate the United States Constitution. Included in these cases were two cases from the Tenth Circuit Court of Appeals. While Kansas is [ ] within the jurisdiction of the Tenth Circuit, none of these cases involved Article 15, § 16 of the Kansas Constitution. This court may not make a determination as to the validity of this constitutional provision without a judiciable case before it concerning the court's issuance of or failure to issue a marriage license.

Seventh Judicial District Administrative Order 14–13 (Doc. 23–7 at 3–4). Plaintiffs never say whether Ms. Marie submitted the marriage application or whether the clerk actually denied it, but Judge Fairchild's order makes it clear: the clerk would have denied Ms. Marie's application.

2. Kerry Wilks and Donna DiTrani

Plaintiffs Kerry Wilks and Donna DiTrani assert they have lived in a committed relationship for five years. The two reside together in Wichita, Kansas, in Sedgwick County. Except that they both are women, Ms. Wilks and Ms. DiTrani meet all other qualifications for marriage in the state of Kansas. On October 6, 2014, Ms. Wilks and Ms. DiTrani appeared in person at the office of the Clerk of the Sedgwick County District Court to apply for a marriage license. A deputy clerk and the clerk's supervisor—both working under the supervision of Clerk Lumbreras—refused to give plaintiffs an application for a marriage license because they sought to enter a same-sex marriage. Plaintiffs returned to the office of the Clerk of the Sedgwick County District Court on October 7 and October 8. Each time, a deputy clerk refused to give Ms. Wilks and Ms. DiTrani an application for a marriage license.

On October 9, 2014, Ms. Wilks and Ms. DiTrani again returned to the office of the Clerk of the Sedgwick County District Court to apply for a marriage license. This time, a deputy clerk asked them for pertinent information and wrote it down on a marriage application form, which the two signed under oath. After Ms. Wilks and Ms. DiTrani completed and submitted the marriage license application form, the deputy clerk—reading from a prepared statement—informed them that their application was denied. The deputy clerk announced that same-sex marriage violates provisions of the Kansas Constitution, and that the Sedgwick County District Court would not issue marriage licenses to same-sex couples “until the Supreme Court otherwise rules differently.”

B. Defendants

1. Robert Moser, M.D.

Defendant Robert Moser is the Secretary of the Kansas Department of Health and Environment. Secretary Moser is responsible for directing Kansas' system of vital records, and supervising and controlling the activities of personnel who operate the system of vital records. As part of his duties, Secretary Moser furnishes forms for marriage licenses, marriage certificates, marriage license worksheets and applications for marriage licenses used throughout Kansas; maintains a publicly available vital records index of marriages; and publishes aggregate data on the number of marriages occurring in the state of Kansas. Secretary Moser is also responsible for ensuring that all of these functions comply with Kansas law, including those that prohibit same-sex couples from marrying. Plaintiffs believe that Secretary Moser's responsibilities include furnishing forms that exclude same-sex couples from marriage by requiring applicants to designate a “bride” and a “groom.” Plaintiffs name Secretary Moser in his official capacity, and allege that he acted under color of state law at all relevant times.

2. Douglas Hamilton

Defendant Douglas Hamilton is the Clerk of the District Court for Kansas' Seventh Judicial District (Douglas County). Mr. Hamilton's responsibilities as Clerk of the Court include: issuing marriage licenses; requiring couples who contemplate marriage to swear under oath to information required for marriage records; collecting a tax on each marriage license; authorizing qualified ministers to perform marriage rites; filing, indexing and preserving marriage licenses after the officiants return them to the court; forwarding records of each marriage to the Kansas Department of Health and Environment; and correcting and updating marriage records. Mr. Hamilton must ensure that he performs each of these functions in compliance with all applicable Kansas laws, including the prohibition against same-sex marriage. Plaintiffs name Mr. Hamilton in his official capacity, and allege that he acted under color of state law at all times relevant to this suit.

3. Bernie Lumbreras

Defendant Bernie Lumbreras is the Clerk of the District Court for Kansas' Eighteenth Judicial District (Sedgwick County). Ms. Lumbreras holds the same position in Sedgwick County as Mr. Hamilton holds in Douglas County, and is responsible for administering the same marriage-related functions. When she performs these functions, Ms. Lumbreras also must ensure that each of these functions complies with Kansas law, including the same-sex marriage ban. Plaintiffs allege that the deputy clerk who denied Ms. Wilks and Ms. DiTrani's marriage license application worked under the direction and supervision of Ms. Lumbreras. Plaintiffs...