Motion For Preliminary Injunction

8:14-cv-00356-JFB-TDT Doc # 10 Filed: 12/02/14 Page 1 of 3 - Page ID # 80
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA
SUSAN WATERS and SALLY WATERS,
NICKOLAS KRAMER and JASON
CADEK, CRYSTAL VON KAMPEN and
CARLA MORRIS-VON KAMPEN,
GREGORY TUBACH and WILLIAM
ROBY, JESSICA KALLSTROMSCHRECKENGOST and KATHLEEN
KALLSTROM-SCHRECKENGOST,
MARJORIE PLUMB and TRACY WEITZ,
and RANDALL CLARK and THOMAS
MADDOX,
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Plaintiffs,
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v.
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DAVE HEINEMAN in his official
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capacity as Governor of Nebraska, JON
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BRUNING in his official capacity as
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Attorney General of Nebraska, KIM
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CONROY in her official capacity as Tax
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Commissioner of the Nebraska Department )
of Revenue, KERRY WINTERER in his
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official capacity as CEO of the Nebraska
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Department of Health and Human Services, )
and DAN NOLTE in his official capacity as )
the Lancaster County Clerk,
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Defendants.
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Civil Action No. 8:13-cv-00215
MOTION FOR
PRELIMINARY INJUNCTION
Plaintiffs Sally and Susan Waters, Nickolas Kramer and Jason Cadek, Crystal Von
Kampen and Carla Morris-Von Kampen, Gregory Tubach and William Roby, Jessica and
Kathleen Kallstrom-Schreckengost, Marjorie Plumb and Tracy Weitz, and Randall Clark and
Thomas Maddox, by and through their attorneys, move this Court pursuant to Fed. R. Civ. P. 65
for entry of a preliminary injunction:
1. enjoining all defendants and their agents from enforcing Neb. Const. art. I,
29 and any other sources of state law that i) exclude same-sex couples from
marrying, or ii) refuse recognition of the marriages of same-sex couples that
were validly entered into in other jurisdictions;
2. enjoining all defendants and their agents from denying same-sex spouses any
incidents of marriage available to opposite-sex spouses;
3. directing defendant CEO of the Department of Health and Human Services to
i) amend the marriage worksheet that the Department provides to county
clerks, which currently provides a space for groom and a space for bride,
to allow couples to apply for a marriage license regardless of gender; and ii)
accept records of marriages regardless of the genders of the spouses; and
4. enjoining defendant Lancaster County Clerk from denying marriage licenses
to same-sex couples who otherwise meet the requirements to marry under
Nebraska law;
The grounds for the motion, set forth in detail in the accompanying Brief in Support of
Motion for Preliminary Injunction and Exhibits A through N attached hereto, are that i) Plaintiffs
have a strong likelihood of success on the merits of their claims; ii) Plaintiffs will suffer
irreparable harm absent a preliminary injunction; iii) the harm to Plaintiffs absent a preliminary
injunction outweigh any harm to defendants; and iv) granting a preliminary injunction is in the
public interest.
WHEREFORE, Plaintiffs respectfully request that this Court issue a preliminary
injunction affording the requested relief.
Dated this 2nd day of December, 2014
Respectfully submitted,
s/SUSAN KOENIG, #16540
s/ANGELA DUNNE, #21938
KoenigDunne Divorce Law, PC, LLO
1266 South 13th Street.
Omaha, Nebraska 68108-3502
(402) 346-1132
susan@nebraskadivorce.com
angela@nebraskadivorce.com
Amy A. Miller, #21050
ACLU of Nebraska Foundation
941 O Street #706
Lincoln NE 68508
402-476-8091
amiller@aclunebraska.org
Leslie Cooper
(pro hac vice admission pending)
Joshua Block
ACLU Foundation
125 Broad St., 18th Floor
New York, New York 10004
(212) 549-2627
lcooper@aclu.org
jblock@aclu.org
CERTIFICATE OF SERVICE
I hereby certify that the counsel of record for the Defendants, Jon Bruning, is being served with a
copy of this document via certified mail to 2115 State Capital, Lincoln, Nebraska on the 2nd day
of December, 2014.
_/s/ Angela Dunne_____________________
8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 1 of 36 - Page ID # 83

MADDOX,
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Plaintiffs,
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v.
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Attorney General of Nebraska, KIM
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and DAN NOLTE in his official capacity as )
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Defendants.
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Civil Action No. 8:13-cv-00215
BRIEF IN SUPPORT OF
MOTION FOR
INTRODUCTION
Plaintiffs bring a constitutional challenge to Nebraskas exclusion of same-sex couples
from marrying and its refusal to recognize the marriages of same-sex couples validly entered in
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other states (the marriage ban). Plaintiffs are same-sex couples who either seek to marry in
Article I, section 29 of the Nebraska Constitution, enacted by the voters in 2000, provides:
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The
uniting of two persons of the same sex in a civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized in Nebraska. Plaintiffs challenge this
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Nebraska or are married in other states and seek recognition of their marriages in Nebraska.
They seek a preliminary injunction to immediately enjoin the enforcement of the marriage ban.
They are entitled to this relief because their constitutional challenge is likely to succeed on the
merits, the ban imposes severe irreparable harm on the Plaintiffs, and granting a preliminary
injunction would cause no harm to the State and would further the public interest.
FACTS
Plaintiffs are seven loving, committed same-sex couples. Plaintiffs Sally and Susan
Waters, Nickolas Kramer and Jason Cadek, Crystal Von Kampen and Carla Morris-Von
Kampen, Jessica and Kathleen Kllstrm-Schreckengost, Marjorie Plumb and Tracy Weitz, and
Randall Clark and Thomas Maddox (the married Plaintiffs) were legally married in other
states. They wish to have their marriages recognized in Nebraska. They are similarly situated in
all relevant respects to different-sex couples whose out-of-state marriages are recognized in
Nebraska. But for the fact that they are same-sex couples, Nebraska would recognize their
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marriages. Plaintiffs Gregory Tubach and William Roby (the unmarried Plaintiffs) wish to
marry in Nebraska. They are similarly situated in all relevant respects to different-sex couples
constitutional amendment and any other source of Nebraska law that bars marriage or marriage
recognition for same-sex couples.
2
Declaration of Sally Waters (Sally Waters Dec.), attached as Exh 1 to Plaintiffs Motion for
Preliminary Injunction (Motion), pars. 3-6; Declaration of Susan Waters (Susan Waters Dec.),
attached as Exh. 2 to Motion, par. 3; Declaration of Nickolas Kramer (Kramer Dec.), attached as
Exh. 3 to Motion, pars. 3, 4; Declaration of Jason Cadek, attached as Exh. 4 to Motion, par. 3;
Declaration of Crystal Von Kampen (Von Kampen Dec.), attached as Exh. 5 to Motion, pars. 3,
4; Declaration of Carla Morris-Von Kampen, attached as Exh. 6 to Motion, par. 3; Declaration of
Jessica Kllstrm-Schreckengost (J. Kllstrom-Schreckengost Dec.), attached as Exh. 9 to
Motion, pars. 3, 4; Declaration of Kathleen Kllstrom-Schreckengost, attached as Exh. 10 to
Motion, par. 3; Declaration of Marjorie Plumb (Plumb Dec.), attached as Exh. 11 to Motion,
pars. 3, 6; Declaration of Tracy Weitz, attached as Exh. 12 to Motion, par. 3; Declaration of
Randall Clark (Clark Dec.), attached as Exh. 13 to Motion, pars. 3, 5; Declaration of Thomas
Maddox, attached as Exh. 14 to Motion, par. 3.
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who marry in Nebraska. But for the fact that they are a same-sex couple, they would be
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permitted to marry here.
The Plaintiff couples are all harmed by Nebraskas marriage ban. They are denied
numerous state-law protections afforded to different-sex married couples. This includes the
ability to jointly adopt children or adopt ones spouses children (see In re Adoption of Luke, 640
N.W.2d 374 (Neb. 2002)); the ability to inherit from one another in the absence of a will (Neb.
Rev. Stat. 30-2302); the automatic ability to make health care and end of life decisions for one
another without an advanced directive; a spousal inheritance tax rate of 1% (versus 18% for nonfamily) and a homestead allowance (Neb. Rev. Stat. 77-2004, 2006); tax-free spousal health
benefits from employers (Nebraska Department of Revenue Ruling 21-13-1); and the ability to
file income taxes jointly (Id.). See Exh. 1 (Sally Waters Dec.), pars. 7, 16-18, 22; Exh. 5 (Von
Kampen Dec.), pars. 11, 13; Exh. 7 (Tubach Dec.), par. 4; Exh. 9 (J. Kllstrm-Schreckengost
Dec.), pars. 6. 9; Exh. 3 (Kramer Dec.), par. 5-7, 10, 11; Exh. 11 (Plumb Dec.), pars. 7, 8, 10;
Exh. 13 (Clark Dec.), pars. 6, 7.
The unmarried Plaintiffs are also denied all federal spousal protections, and the married
Plaintiffs are denied those federal spousal protections that are available only to couples whose
marriages are recognized in their state of residence, including veterans benefits such as a
Veterans Administration home loan and family tuition reimbursement. Exh. 5 (Von-Kampen
Dec.), pars. 6-9.
This denial of the legal protections of marriage is not an abstract matter. Sally Waters,
who is suffering the physical and emotional pain of stage IV breast cancer, has the additional
Declaration of Gregory Tubach (Tubach Dec.), attached as Exh. 7 to Motion, pars. 3, 5;

Declaration of William Roby, attached as Exh. 8 to Motion, par. 3.
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burden of worrying about how her spouse and children will manage financially after she passes
away because Susan will be denied important financial protections afforded to widows. Exh. 1
(Sally Waters Dec.), pars. 11-18. And Susan must endure this stress about finances while
already experiencing the incredible stress of worrying about whether Sallys treatment will help
extend her life. Exh. 2 (Susan Waters Dec.), par. 4. The financial impact on Susan and the
children will be significant. Rather than the 1% inheritance tax and homestead protection
provided to surviving spouses, Susan will have to pay an inheritance tax of 18% on half the value
of all of their joint property, including their home. With that kind of tax bill, the couple worries
that Susan and the children may not be able to remain in their home after Sally passes away.
Exh. 1 (Sally Waters Dec.), par. 17.
In addition, when Sally dies, because her marriage is not recognized, her death certificate
will list her marital status as single and leave blank the space for surviving spousethe space
where Susans name should go. It is tremendously upsetting to Sally that the last official
document of her life will say that her marriage to Susan didnt exist, and that Susan, in her time
of grief, will have to receive a death certificate that disrespects their marriage in this way. Exh. 1
(Sally Waters Dec.), par. 19. For Susan, the thought of getting a death certificate for Sally that
erases their marriage and having her children see that makes her feel sick to her stomach. Exh. 2
(Susan Waters Dec.), par. 5.
Because Nick Kramer and Jason Cadeks marriage is not recognized in Nebraska, only
one of them can have a legal parent-child relationship with their three-year-old daughter, A.C.K., creating profound stress and insecurity for the family Will Jason be able to make medical
decisions for their daughter, or even be by her side in the hospital, in the event of a medical
emergency? Will A.C.-K.be able to remain with Jason if something were to happen to Nick?
Exh. 3 (Kramer Dec.), pars. 5-8. Similarly, Jessica and Kathleen Kllstrm-Schreckengost, who
are planning to have another child, worry that if the child is born before the law changes, he or
she will be denied the protections of having two legal parents. Exh. 9 (Jessica KllstrmSchreckengost Dec.), par. 6.
Crystal Von Kampen is an Iraq-war veteran who has a disability as a result of her military
service. But because Crystals marriage to Carla Morris-Von Kampen is not recognized by the
State, her family is denied financial protections afforded to veterans families, including a
veteran and spouse loan under Veterans Administration home-loan program, additional
compensation for disabled veterans who are married, and tuition reimbursement for Crystals
step-daughter. Exh. 5 (Von Kampen Dec.), pars. 5-10. Crystals inability to access these
protections significantly affects the familys standard of living and causes Crystal and Carla
stress about making ends meet. Id., par. 10.
The marriage ban also subjects all of the Plaintiffs and their families to the stigma of
being officially declared by the State to be unworthy of the respect that is afforded to other
families through marriage. It deprives them a dignity and status of immense import and
demeans them by tell[ing] those couples, and all the world, that their otherwise valid
marriages are unworthy of . . . recognition. United States v. Windsor, 133 S. Ct. 2675, 2694
(2013). Exh. 1 (Susan Waters Dec.), pars. 20, 22; Exh. 3 (Kramer Dec.), pars. 9, 11; Exh. 5
(Von Kampen Dec.), pars. 12, 13; Exh. 9 (J. Kallstrm-Schreckengost Dec.), pars. 7, 9; Exh. 11
(Plumb Dec.), pars. 9, 10; Exh. 13 (Clark Dec.), pars. 6-8.
Jessica and Kathleen already have one child, a baby boy who was born in New York before the
couple moved to Nebraska. Exh. 9 (J. Kllstrm-Schreckengost Dec.), at 5.
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The marriage ban also humiliates Plaintiffs children and makes it difficult for [them]
to understand the integrity and closeness of their own family and its concord with other families
in their community and in their daily lives. Windsor, 133 S. Ct. at 2694. Plaintiffs Nick
Kramer and Jason Cadeks daughter is three years old, and they worry that she will soon be old
enough to understand that her Daddy Jason is not her legal parent and that, in the eyes of the
State, her family is not a real family. Exh. 3 (Kramer Dec.), par. 8. All of the plaintiffs with
children are concerned that the States refusal to recognize their marriages sends a damaging and
stigmatizing message to their children about the value and status of their families. Exh. 1 (Susan
Waters Dec.), par. 21; Exh. 3 (Kramer Dec.), par. 8; Exh. 9 (J. Kllstrm-Schreckengost Dec.),
par. 8.
ARGUMENT
The issuance of a preliminary injunction depends upon a flexible consideration of (1)
the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an
injunction would inflict on other interested parties; (3) the probability that the moving party
would succeed on the merits; and (4) the effect on the public interest. Dataphase Sys., Inc. v. C
L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc)).
I.
Plaintiffs Are Likely to Prevail on the Merits

Plaintiffs are likely to prevail on the merits of their claims that Nebraskas marriage ban
violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Indeed,
since the Supreme Court invalidated the federal Defense of Marriage Act (DOMA) in United
States v. Windsor, 133 S. Ct. 2675 (2013), an avalanche of federal court decisions including
four different courts of appeals has been nearly unanimous in holding that state laws that
prohibit same-sex couples from marrying or deny recognition to their marriages are
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unconstitutional.
A. Nebraskas Marriage Ban Is Subject to Strict Scrutiny Because It Violates

Plaintiffs Fundamental Right to Marry.
Nebraskas marriage ban infringes upon same-sex couples fundamental right to marry
and is therefore subject to strict scrutiny under both the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Zablocki v. Redhail, 434 U.S. 374, 383 (1978); Loving v.
Virginia, 388 U.S. 1, 12 (1967); see Kitchen, 755 F.3d 1193; Bostic,760 F.3d 352; Lawson v.
Kelly, No. 140622CVWODS, 2014 WL 5810215, at *6-8 (W.D. Mo. Nov. 7, 2014)
(applying heightened scrutiny and striking down Missouris ban on marriage for same-sex
couples because it infringes on the fundamental right to marry); Jernigan v. Crane, No. 4:1300410-KGB (E.D.Ark. Nov. 25, 2014), at 28-36 (striking down Arkansass marriage ban on
same basis); Rosenbrahn v. Daugaard, No. 4:14CV04081KES, 2014 WL 6386903 (D.S.D.
Nov. 14, 2014), at *8-9 (denying motion to dismiss challenge to South Dakota marriage ban,
See Latta v. Otter, Nos. 14-35420, 14-35421, 12-17688, 2014 WL 4977682 (9th Cir. Oct. 7,
2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied, 135 S.Ct. 316, and cert. denied sub
nom., Walker v. Wolf, 135 S. Ct. 316 (2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert.
denied, 135 S. Ct. 308, cert. denied sub nom., Rainey v. Bostic, 135 S. Ct. 286, and cert denied
sub nom., McQuigg v. Bostic, 135 S. Ct. 314 (2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir.),
cert. denied, 135 S.Ct. 271 (2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.), cert. denied,
135 S. Ct. 265 (2014); see also Campaign for Southern Equality v Bryant, No. 3:14-818-CWRLRA (S.D.Miss. Nov. 25, 2014), n. 1 (collecting district court cases). But see DeBoer v. Snyder,
Nos. 14-1341, 3057, 3464, 5291, 5297, 5818, 2014 WL 5748990 (6th Cir. Nov. 6, 2014),
petitions for cert. filed, -- U.S.L.W. -- (U.S. Nov. 14, 2014) (Nos. 14-556, 14-562, 14-571), and
petition for cert. filed, -- U.S.L.W. (U.S. Nov. 18, 2014) (No. 14-574); Conde-Vidal v. GarciaPadilla, No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014), appeal docketed, No. 14-2184
(1st Cir. Nov. 13, 2014); Robichaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014), appeal
docketed, No. 14-31037 (5th Cir. Sept. 5, 2014).
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holding that plaintiffs stated a claim based on the fundamental right to marry). The fundamental
right to marry also protects legally married couples from state attempts to deprive those
marriages of legal recognition. See Kitchen, 755 F.3d at 1213 (collecting cases).
This case is about the fundamental right to marrynot a right to same sex marriage.
Characterizing the right at issue as a new right to same-sex marriage would repeat the mistake
made in Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S.
558 (2003), when the Court narrowly characterized the right at issue in challenges to criminal
sodomy laws as an asserted fundamental right [for] homosexuals to engage in sodomy. Id. at
190. When the Supreme Court in Lawrence overruled Bowers and struck down criminal sodomy
laws as unconstitutional, the Court specifically criticized the Bowers decision for narrowly
framing the right at issue in a manner that failed to appreciate the extent of the liberty at stake.
Lawrence, 539 U.S. at 567. Instead of the narrow framing used in Bowers, the Lawrence Court
recognized that our laws and tradition afford constitutional protection to personal decisions
relating to marriage, procreation, contraception, family relationships, child rearing, and
education and [p]ersons in a homosexual relationship may seek autonomy for these purposes,
just as heterosexual persons do. Id. at 574. Lawrence thus indicate[s] that the choices that
individuals make in the context of same-sex relationships enjoy the same constitutional
protection as the choices accompanying opposite-sex relationships. Bostic, 760 F.3d at 377.
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All the district courts within the Eighth Circuit that have addressed freedom to marry claims of
same-sex couples have agreed that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th
Cir. 2006), which rejected an earlier challenge to Neb. Const. art. I, 29, did not address or
decide whether that amendment violated the fundamental right to marry protected by the Due
Process Clause. See Jernigan, slip op., at 28-36 (the plaintiffs in Bruning did not assert a right
to marriage, but rather, an equal protection claim based on equal political access), quoting
Bruning, 455 F.3d at 865, 866; accord Lawson, 2014 WL 5810215, at *4-5; Rosenbrahn, 2014
WL 6386903, at *8-9. Thus, Plaintiffs due process fundamental right to marry claim is an open
question for this Court.
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Similarly, here, Plaintiffs and other same-sex couples in Nebraska are not seeking a new right to
same-sex marriage. They merely seek the same fundamental right to marry just as
heterosexual persons do. Lawrence, 539 U.S. at 574.
To be sure, same-sex couples have until recently been denied the freedom to marry, but
Nebraska cannot continue to deny fundamental rights to certain groups simply because it has
done so in the past. [H]istory and tradition are the starting point but not in all cases the ending
point of the substantive due process inquiry. Id. at 572 (internal quotation marks omitted).
Our Nations history, legal traditions, and practices, Washington v. Glucksberg, 521 U.S. 702,
721 (1997), help courts identify what fundamental rights the Constitution protects but not who
may exercise those rights. [F]undamental rights, once recognized, cannot be denied to particular
groups on the ground that these groups have historically been denied those rights. In re
Marriage Cases, 183 P.3d 384, 430 (Cal. 2008) (quotation marks omitted; bracket in original),
superseded by constitutional amendment as stated in Strauss v. Horton, 207 P.3d 48, 59 (Cal.
2009); see Bostic, 760 F.3d at 376 (Glucksbergs analysis applies only when courts consider
whether to recognize new fundamental rights, not who may exercise rights that have already
been recognized).
For example, the fundamental right to marry extends to couples of different races,
Loving, 388 U.S. at 12, even though interracial marriage was illegal in most States in the 19th
century. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-48 (1992). Thus the
question as stated in Loving, and as characterized in subsequent opinions, was not whether there
is a deeply rooted tradition of interracial marriage, or whether interracial marriage is implicit in
the concept of ordered liberty; the right at issue was the freedom of choice to marry. Kitchen,
755 F.3d at 1210 (quoting Loving, 388 U.S. at 12).
Similarly, the fundamental right to marry extends to persons who have been divorced,
Zablocki, 434 U.S. at 388-90, even though marriage did not always include a right to divorce and
divorce was rare and difficult in the eighteenth and early nineteenth centuries. See Glenda Riley,
Legislative Divorce in Virginia, 1803-1850, Journal of the Early Republic, Vol. 11, No. 1, at 51
(Spring, 1991). And it extends to prisoners, Turner v. Safley, 482 U.S. 78, 95-97 (1987), even
though prisoners were not traditionally allowed to marry. See Virginia L. Hardwick, Punishing
the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L.
Rev. 275, 277-79 (1985). As the Fourth Circuit has explained: the Supreme Courts marriage
cases do not define the rights in question as the right to interracial marriage, the right of
people owing child support to marry, and the right of prison inmates to marry. Instead, they
speak of a broad right to marry that is not circumscribed based on the characteristics of the
individuals seeking to exercise that right. Bostic, 760 F.3d at 376.
Because [o]ur Constitution neither knows nor tolerates classes among citizens, Romer
v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(dissenting opinion)), all people, including same-sex couples, are protected by the same
fundamental right to marry. The choice of whether and whom to marry is an intensely personal
decision that alters the course of an individuals life. Denying same-sex couples this choice
prohibits them from participating fully in our society, which is precisely the type of segregation
that the Fourteenth Amendment cannot countenance. Bostic, 760 F.3d at 384.
B. Nebraskas Marriage Ban Is Subject to Heightened Scrutiny Because It
Discriminates Based on Sexual Orientation.
In addition to infringing on the fundamental right to marry, Nebraskas marriage ban is
also subject to heightened scrutiny because it discriminates based on sexual orientation.
i. Windsor Requires Heightened Scrutiny and Abrogates the Eighth
Circuits Decision in Citizens for Equal Protection v. Bruning.
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Windsor requires that heightened scrutiny be applied to equal protection claims

involving sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471,
481 (9th Cir. 2014); accord Baskin, 766 F.3d at 671. In invalidating the Defense of Marriage
Act (DOMA), Windsor established a level of scrutiny for classifications based on sexual
orientation that is unquestionably higher than rational basis review. SmithKline, 740 F.3d at
481. The Court did not begin with a presumption that discrimination against same sex couples is
constitutional. Baskin, 766 F.3d at 671 (Notably absent from Windsors review of DOMA are
the strong presumption in favor of the constitutionality of laws and the extremely deferential
posture toward government action that are the marks of rational basis review.) (quoting
Smithkline, 740 F.3d at 483). Rather, Windsor held that there must be a legitimate purpose to
overcome[ ] the harms that DOMA imposed on same-sex couples. Windsor, 133 S. Ct. at
2696.
Windsors balancing of the governments interest against the harm or injury to gays and
lesbians, Baskin, 766 F.3d at 671, stands in stark contrast to traditional rational-basis review.
One of the hallmarks of rational basis review is that it avoids the need for complex balancing of
competing interests in every case. Glucksberg, 521 U.S. at 722. Under rational-basis review,
[i]f any plausible reason could provide a rational basis for [the legislatures] decision to treat the
classes differently, our inquiry is at an end, and we may not test the justification by balancing it
against the constitutional interest asserted by those challenging the statute. Canto v. Holder,
593 F.3d 638, 641 (7th Cir. 2010) (internal quotation marks omitted); see also Kinney v. Weaver,
367 F.3d 337, 363 (5th Cir.2004) ([B]alancing is not like performing rational basis review,
where we uphold government action as long as there is some imaginable legitimate basis for
it.).
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Windsors rejection of rational-basis review abrogates the Eighth Circuits earlier

decision in Bruning, 455 F.3d 859, which held that sexual orientation claims are subject to
rational-basis review. Before Windsor was decided, the Ninth Circuit in Witt v. Dept of the Air
Force, 527 F.3d 806 (9th Cir.2008)like the Eighth Circuit in Bruninghad also held that
sexual orientation classifications are subject to rational-basis review. But after Windsor, the
Ninth Circuit concluded that Windsor requires that we reexamine our prior precedents and we
are required by Windsor to apply heightened scrutiny to classifications based on sexual
orientation for purposes of equal protection. SmithKline, 740 F.3d at 484.
Just as Windsor abrogated Witt in the Ninth Circuit, it also abrogates Bruning in the
Eighth Circuit. Eighth Circuit decisions are not binding when an intervening expression of the
Supreme Court is inconsistent with those previous opinions. Young v. Hayes, 218 F.3d 850,
853 (8th Cir. 2000); McCullough v. AEGON USA Inc., 585 F.3d 1082, 1085 (8th Cir. 2009)
(same). Similarly, district courts within the Eighth Circuit must also follow intervening Supreme
Court decisions if they conflict with a prior ruling of the Eighth Circuit. See Cornerstone
Consultants, Inc. v. Production Input Solutions, L.L.C., 789 F. Supp. 2d 1029, 1039 (N.D. Iowa
2011) ([B]oth the district court and the Circuit Court of Appeals are obligated to follow
Supreme Court decisions. Thus, I must follow the Supreme Courts formulation of the pleading
standard, contrary language in [an Eighth Circuit precedent] notwithstanding. (citation
omitted)).
This Court must follow Windsornot Bruningand subject sexual orientation
classifications to the heightened scrutiny Windsor requires. That means it must balance[e] the
governments interest against the harm or injury to gays and lesbians. Baskin, 766 F.3d at 671;
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see also Latta, 2014 WL 5094190, at *10. As discussed below, the marriage ban causes
extraordinary harms to same-sex couples and their families (see point II, infra), and does not
even rationally further a legitimate government interest (see point I(D), infra), let alone serve a
strong enough interest to overcome that harm.
ii. The Traditional Heightened Scrutiny Factors Also Require
Heightened Scrutiny for Sexual Orientation Classifications.
In applying heightened scrutiny for sexual orientation classifications, Windsor is
consistent with a long line of Supreme Court cases explaining the factors that courts should
analyze when determining whether a classification should be treated as suspect or quasisuspect. The four factors that courts traditionally analyze are:
A) whether the class has been historically subjected to discrimination,;
B) whether the class has a defining characteristic that frequently bears [a]
relation to ability to perform or contribute to society,; C) whether the
class exhibits obvious, immutable, or distinguishing characteristics that
define them as a discrete group; and D) whether the class is a minority
or politically powerless.
Windsor, 699 F.3d 169, 181 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) (quotation marks and
citations omitted; bracket in original). Of these considerations, the first two are the most
7
The Seventh Circuit noted that this balancing approach is consistent with the standard for
equal protection heightened scrutiny the Supreme Court has used in cases such as United States
v. Virginia, 518 U.S. 515, 524 (1996), which requires the government to show at least that the
classification serves important governmental objectives and that the discriminatory means
employed are substantially related to the achievement of those objectives. Baskin, 766 F.3d at
656 (quoting Virginia, 518 U.S. at 524). As the court explained, any differences between the
two descriptions of heightened scrutiny are semantic rather than substantive because to say
that discriminatory policy is overinclusive is to say that the policy does more harm to the
members of the discriminated-against group than necessary to attain the legitimate goals of the
policy. . . . Id. See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995) (The
application of strict scrutiny . . . determines whether a compelling governmental interest justifies
the infliction of [the] injury that occurs whenever the government treats any person unequally
because of his or her race.); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)
(plurality opinion) (strict scrutiny assur[es] that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool.).
13
important. See id. at 181 (Immutability and lack of political power are not strictly necessary
factors to identify a suspect class.).
Although Windsor did not explicitly examine the traditional heightened scrutiny criteria,
any faithful application of those factors confirms the inescapable conclusion that sexualorientation classifications must be subjected to heightened scrutiny. See Baskin, 766 F.3d at
655-56 ; Windsor, 699 F.3d at 181-85; Wolf v. Walker, 986 F. Supp. 2d 982, 1014 (W.D. Wis.),
affd sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir.), and cert denied, 135 S. Ct. 316 (2014);
Whitewood v. Wolf, 992 F. Supp. 2d 410, 425-30 (M.D. Pa. 2014); Golinski v. U.S. Office of
Pers. Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); Pedersen v. Office of Pers. Mgmt.,
881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921,
997 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown, 725 F.3d. 1140 (9th Cir.
2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011) (decision of 20 bankruptcy
judges); Griego v. Oliver, 316 P.3d 865, 879-84 (N.M. 2013); Varnum v. Brien, 763 N.W.2d
862, 885-96 (Iowa 2009); In re Marriage Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v.
Commr of Pub. Health, 957 A.2d 407, 425-32 (Conn. 2008).
First, as the Second Circuit has noted, It is easy to conclude that homosexuals have
suffered a history of discrimination. Windsor, 699 F.3d at 182. Indeed, homosexuals are
8
In Bruning which has now been abrogated by Windsor the Eighth Circuit failed to apply the
Supreme Courts heightened scrutiny factors, and instead the court tautologically concluded that
heightened scrutiny does not apply because a rational basis allegedly existed for sexual
orientation classifications in some circumstances. See Bruning, 455 F.3d at 867-68. But if the
existence of a rational basis in a particular case precluded heightened scrutiny, then heightened
scrutiny would be meaningless. The whole point of heightened scrutiny is that a stronger
justification than a rational basis is required for certain classifications that have historically been
prone to abuse. As the Supreme Court explained in City of Cleburne v. Cleburne Living Center,
473 U.S 432, 446 (1985), courts should look to the likelihood that governmental action
premised on a particular classification is valid as a general matter, not merely to the specifics of
the case before us; the proper question is whether a characteristic is one that the government
may legitimately take into account in a wide range of decisions.
14
among the most stigmatized, misunderstood, and discriminated-against minorities in the history
of the world. Baskin, 766 F.3d 658; see Pedersen, 881 F. Supp. 2d at 318 (summarizing history
of discrimination).
Second, sexual orientation bears no relation to ability to perform or contribute to society.
Windsor, 699 F.3d at 182. There are some distinguishing characteristics, such as age or mental
handicap, that may arguably inhibit an individuals ability to contribute to society, at least in
some respect. But homosexuality is not one of them. Id. at 182; accord Golinski, 824 F. Supp.
2d at 986 ([T]here is no dispute in the record or the law that sexual orientation has no relevance
to a persons ability to contribute to society.); Pedersen, 881 F. Supp. 2d at 320 (Sexual
orientation is not a distinguishing characteristic like [developmental disabilities] or age which
undeniably impacts an individuals capacity and ability to contribute to society. Instead like sex,
race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities.). Like race, alienage, sex, and
legitimacy, a persons sexual orientation is thus not a characteristic the government may
legitimately take into account in a wide range of decisions. Cleburne, 473 U.S. at 446. Indeed,
during oral arguments before the Supreme Court in Hollingsworth v. Perry, attorneys defending
Californias Proposition 8 could not identify any context other than marriage in which it would
be appropriate for government to treat people differently based on their sexual orientation. Oral
Arg. Tr. at 14:9-18, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144).
Third, sexual orientation is an obvious, immutable, or distinguishing aspect of personal
identity that a person cannotand should notbe required to change in order to escape
discrimination. Windsor, 699 F.3d at 181. Courts examine this factor in part to determine
whether the characteristic may serve as an obvious badge that makes a group particularly
15
vulnerable to discrimination. Matthews v. Lucas, 427 U.S. 495, 506 (1976); see also Frontiero v.
Richardson, 411 U.S. 677, 686 (1973) (plurality). As the Second Circuit observed, there is no
doubt that sexual orientation is a distinguishing characteristic that calls down discrimination
when it is manifest. Windsor, 699 F.3d at 183. Moreover, sexual orientation is so fundamental
to a persons identity that one ought not be forced to choose between ones sexual orientation
and ones rights as an individualeven if such a choice could be made. See Pedersen, 881 F.
Supp. 2d at 325; Golinski, 824 F. Supp. 2d at 987; In re Marriage Cases, 183 P.3d at 442;
9
Kerrigan, 957 A.2d at 438; Varnum, 763 N.W.2d at 893; Griego, 316 P.3d at 884.
Fourth, gay people lack sufficient political power to adequately protect themselves from
the discriminatory wishes of the majoritarian public. Windsor, 699 F.3d at 185. Recent
advances for gay people pale in comparison to the political progress of women at the time sex
was recognized as a quasi-suspect classification. By that time, Congress had already passed Title
VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, protecting women from
discrimination in the workplace. Frontiero, 411 U.S. at 687-88 (plurality). In contrast, there is
There is no requirement that a characteristic be immutable in a literal sense in order to trigger

heightened scrutiny. Heightened scrutiny applies to classifications based on alienage and
illegitimacy, even though [a]lienage and illegitimacy are actually subject to change.
Windsor, 699 F.3d at 183 n.4; see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the
argument that alienage did not deserve strict scrutiny because it was mutable). But even if literal
immutability were required, there is now broad medical and scientific consensus that sexual
orientation cannot be intentionally changed through conscious decision, therapeutic intervention,
or any other method. Under any definition of immutability, sexual orientation clearly qualifies.
See Baskin, 766 F.3d 658 ([T]here is little doubt that sexual orientation, the ground of the
discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic
rather than a choice.); Perry, 704 F. Supp. 2d at 966 (No credible evidence supports a finding
that an individual may, through conscious decision, therapeutic intervention or any other method,
change his or her sexual orientation.); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881
F. Supp. 2d at 320-24; Br. of Amicus Curiae GLMA: Health Professionals Advancing LGBT
Equality (Gay and Lesbian Medical Association) Concerning the Immutability of Sexual
Orientation in Support of Affirmance on the Merits, United States v. Windsor, 133 S. Ct. 2675
(2013) No. 12-307, 2013 WL 860299.
16
still no express federal ban on sexual-orientation discrimination in employment, housing, or

public accommodations, and twenty-nine states including Nebraska have no such protections
either. See Pedersen, 881 F. Supp. 2d at 327-28; Golinski, 824 F. Supp. 2d at 988-89; Griego,
316 P.3d at 883. Additionally, gay people have been particularly vulnerable to discriminatory
ballot initiatives like Nebraskas marriage amendment that seek to roll back protections they
have secured in the legislature or prevent such protections from ever being extended. Griego,
316 P.3d at 883. Indeed, gay people have seen their civil rights put to a popular vote more often
than any other group, Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol.
Sci. 245, 257 (1997), and have lost in most cases, see Donald P. Haider-Markel et al., Lose, Win,
or Draw?: A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304, 307
(2007). And by enshrining marriage bans in their state constitutions, Nebraska and other states
have made it all the more difficult to remedy discrimination through the normal legislative
process.
In short, sexual-orientation classifications demand heightened scrutiny not just under the
two critical factors, but under all four factors that the Supreme Court has used to identify suspect
or quasi-suspect classifications. These traditional heightened scrutiny factors further reinforce
Windsors command that sexual orientation classifications must be subjected to heightened
scrutiny.
C. Nebraskas Marriage Ban Is Subject to Heightened Scrutiny Because It
Discriminates Based on Sex.
Nebraskas marriage ban is subject to heightened scrutiny for the additional reason that it
discriminates based on sex. [A]ll gender-based classifications today warrant heightened
scrutiny. Virginia, 518 U.S. at 555 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136
(1992)). Nebraskas marriage ban imposes explicit gender classifications: a person may marry
17
only if the persons sex is different from that of the persons intended spouse. A woman may
marry a man but not another woman, and a man may marry a woman but not another man. Like
any other sex classification, the marriage ban must therefore be tested under heightened scrutiny.
See Latta, 2014 WL 4977682, at *15-18 (Berzon, J., concurring); Kitchen v. Herbert, 961 F.
Supp. 2d 1181, 1206 (D. Utah 2013), affd, 755 F.3d 1193 (10th Cir.), and cert. denied, 135 S.
Ct. 265 (2014); Lawson, 2014 WL 5810215, at *8 (applying heightened scrutiny to Missouris
marriage ban because it discriminates based on sex); Jernigan, slip op. at 39-31 (applying
10
heightened scrutiny to Arkansass marriage ban because it discriminates based on sex).
Nebraskas restriction on marriage is no less invidious because it equally denies men and
women the right to marry a person of the same sex. In Loving, the Supreme Court rejected the
notion that the mere equal application of a statute containing racial classifications is enough to
remove the classifications from the Fourteenth Amendments proscription of all invidious racial
discriminations. 388 U.S. at 8; see also City of Los Angeles, Dept of Water & Power v.
Manhart, 435 U.S. 702, 716 (1978) (in context of Title VII, rejecting argument that the absence
of a discriminatory effect on women as a class justifies an employment practice which, on its
face, discriminated against individual employees because of their sex). Th[e] focus in modern
sex discrimination law on the preservation of the ability freely to make individual life choices
regardless of one's sex confirms that sex discrimination operates at, and must be justified at, the
level of individuals, not at the broad class level of all men and women. Latta, 2014 WL
4977682, at *19 (Berzon, J., concurring).
10
Bruning did not considerbecause it was not asked to considerwhether there is a

constitutional right to same-sex marriage . . . because laws forbidding it . . . draw impermissible
distinctions based on gender. Jernigan, slip op. at 40, quoting Lawson, 2014 WL 5810215, at
*5 (emphasis in original).
18
Because Nebraskas marriage ban explicitly classifies based on sex, it must be tested
under heightened scrutiny.
D. Nebraskas Marriage Ban Is Unconstitutional Under Any Standard of
Review.
If the requisite heightened scrutiny is applied, Defendants cannot carry their burden. But
even under the most deferential standard of review, the marriage ban cannot withstand scrutiny.
i.
Excluding same-sex couples from marriage does not rationally further

any legitimate government interest.
a.
Tradition Is Not an Independent and Legitimate Interest to

Support Nebraskas Marriage Ban.
Nebraskas marriage ban cannot be justified by an interest in preserving tradition

because tradition does not constitute an independent and legitimate legislative end for purposes
of rational-basis review. Romer v. Evans, 517 U.S. 620, 633 (1996). [T]he government must
have an interest separate and apart from the fact of tradition itself. Golinski, 824 F. Supp. 2d at
993. The justification of tradition does not explain the classification; it merely repeats it.
Kerrigan, 957 A.2d at 478. [I]t is circular reasoning, not analysis, to maintain that marriage
must remain a heterosexual institution because that is what it historically has been. Latta, 2014
WL 4977682, at *10 (quoting Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 961 n.23
11
(Mass. 2003)).
11
Moreover, the underlying premise that marriage bans preserve traditional marriage conflicts
with the reality that contemporary marriage laws in Nebraska, as in other states, bear little
resemblance to those in place a century ago. Latta, 2014 WL 4977682, at *10. [W]ithin the
past century, married women had no right to own property, enter into contracts, retain wages,
make decisions about children, or pursue rape allegations against their husbands. Id.; see also
id. at *20-21 (Berzon, J., concurring). As a result, defendants cannot credibly argue that their
laws protect a traditional institution; at most, they preserve the status quo with respect to one
aspect of marriageexclusion of same-sex couples. Id. at *10 (majority).
19
Similarly, the fact that a type of discrimination is traditional or longstanding does not
insulate the discrimination from constitutional review. The Supreme Court has made clear that
[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational
basis. Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993). And the Supreme Court has
repeatedly struck down discriminatory practices that existed for years without raising any
constitutional concerns. [I]nterracial marriage was illegal in most States in the 19th century,
Casey, 505 U.S. at 847-48, and [l]ong after the adoption of the Fourteenth Amendment, and
well into [the Twentieth Century], legal distinctions between men and women were thought to
raise no question under the Equal Protection Clause, Virginia, 518 U.S. at 560 (Rehnquist, J.,
concurring). Many of our peoples traditions, such as de jure segregation and the total
exclusion of women from juries, are now unconstitutional even though they once coexisted with
the Equal Protection Clause. J.E.B., 511 U.S. at 142 n.15 (citation omitted); see also id (We
do not dispute that this Court long has tolerated the discriminatory use of peremptory challenges,
but this is not a reason to continue to do so.). Tradition per se therefore cannot be a lawful
12
ground for discriminationregardless of the age of the tradition. Baskin, 766 F.3d at 666.
Until recently same-sex couples have been excluded from marriage, but [a] prime part of
the history of our Constitution . . . is the story of the extension of constitutional rights and
protections to people once ignored or excluded. Virginia, 518 U.S. at 557. [I]t is not the
Constitution that has changed, but the knowledge of what it means to be gay or lesbian.
Kitchen, 961 F. Supp. 2d at 103. Acknowledging that changed understanding does not mean that
12
Indeed, the fact that a form of discrimination has been traditional is a reason to be more
skeptical of its rationality. The Court must be especially vigilant in evaluating the rationality of
any classification involving a group that has been subjected to a tradition of disfavor for a
traditional classification is more likely to be used without pausing to consider its justification
than is a newly created classification. Cleburne, 473 U.S. at 454 n.6 (Stevens, J., concurring)
(alterations in original; internal quotation marks omitted).
20
people in past generations were irrational or bigoted. As Justice Kennedy explained in

Lawrence, times can blind us to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress. Lawrence, 539 U.S. at 579.
Ultimately a claimed state interest in preserving the traditional institution of marriage
is just a kinder way of describing the States moral disapproval of same-sex couples.
Lawrence, 539 U.S. at 601 (Scalia, J., dissenting) (emphasis in original). Expressing such
condemnation is not a rational basis for perpetuating discrimination. See Romer, 517 U.S. at
633; Lawrence, 539 U.S. at 582 (OConnor, J., concurring).
b.
Nebraskas Marriage Ban Is Not Rationally Related to a State Interest

in Promoting Responsible Procreation.
Nebraskas marriage ban cannot be justified by an interest in encouraging responsible

procreation. When the Eighth Circuit upheld sexual orientation discrimination under rationalbasis review in Bruning which has now been abrogated by Windsor it stated that excluding
same-sex couples from marriage rationally advances an ostensible legitimate government interest
in encourage[ing] heterosexual couples to bear and raise children in committed marriage
relationships. Bruning, 455 F.3d at 868. But that reasoning has now been abrogated by
Windsor because precisely the same purported governmental interest was offered and rejected
as a defense of DOMA. See Merits Brief of Bipartisan Legal Advisory Group of the U.S.
House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013
WL 267026, (BLAG Merits Brief), at *21 (There is a unique relationship between marriage
and procreation that stems from marriage's origins as a means to address the tendency of
opposite-sex relationships to produce unintended and unplanned offspring); id. at *46 (citing
Bruning). Indeed, the rationale of responsible procreation was included in the original House
Report for DOMA in 1996. See H.R. Rep. No. 104-664, at 30 (1996), reprinted in 1996
21
U.S.C.C.A.N. 2905, at 12-13. The Supreme Court necessarily rejected that argument as
insufficient to uphold the constitutionality of DOMA when it held that no legitimate purpose
could justify the inequality and stigma that DOMA imposed on same-sex couples and their
families. Windsor, 133 S. Ct. at 2696. See Kitchen, 755 F.3d at 1226 n.12 (noting that
responsible procreation argument was raised and rejected in Windsor); Latta, 2014 WL
4977682, at *4 n.9 (same).
Before Windsor, some courts accepted the same responsible procreation argument that
was accepted in Bruning, but after Windsor federal courts have almost unanimously concluded
that the responsible procreation rationale is illogical and irrational, recognizing that whether or
not same-sex couples are permitted to marry has no conceivable impact on the procreative and
child-rearing decisions of heterosexual couples. See Kitchen, 755 F.3d at 1223 ([I]it is wholly
illogical to believe that state recognition of the love and commitment between same-sex couples
will alter the most intimate and personal decisions of opposite-sex couples.); accord Bostic, 760
F.3d at 382-83; Latta, 2014 WL 4977682, at *6, 8; Baskin, 766 F.3d at 662-63, 665 (responsible
procreation argument is impossible to take seriously and fails even rational-basis review).
It is easy to see why the responsible procreation argument has been rejected by so
many courts. As an initial matter, marriage provides exactly the same incentives for
heterosexual couples to procreate responsibly whether or not same-sex couples are permitted to
marry. Marriage is incentivized for naturally procreative couples to precisely the same extent
regardless of whether same-sex couples (or other non-procreative couples) are included. Bishop
v. United States ex rel Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla.), affd sub nom., Bishop
v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 760 F.3d 1070 (2014); Kitchen, 961 F. Supp. 2d
at 1201; Varnum, 763 N.W.2d at 901-02; see also Windsor, 699 F.3d at 188; Golinski, 824 F.
22
Supp. 2d at 998-99. As the Tenth Circuit observed, [w]e cannot imagine a scenario under
which recognizing same-sex marriages would affect the decision of a member of an opposite-sex
couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a
child. Kitchen, 755 F.3d at 1224.
Similarly, the notion that only families headed by couples who can biologically procreate
togetherand, thus, accidentally procreateneed the protections of marriage makes no sense.
Because family is about raising children and not just about producing them, Baskin, 766 F.3d
at 663, the protections and stability of marriage are important throughout a childs life, not just at
the point of conception. [M]arriage not only brings a couple together at the initial moment of
union; it helps to keep them together . . . . Raising children is hard; marriage supports same-sex
couples in parenting their children, just as it does opposite-sex couples. Latta, 2014 WL
4977682, at *6.
The protections and stability that marriage affords families are important not only for
children whose conception was the unplanned result of their parents heterosexual intercourse,
but also for children who are conceived through assisted reproduction or are adopted into their
families. If the fact that a child's parents are married enhances the childs prospects for a happy
and successful life . . . this should be true whether the childs parents are natural or adoptive.
Baskin, 766 F.3d at 663. Nebraska does not have a legitimate interest in discriminating against
different classes of children based on their method of conception. Denying children resources
and stigmatizing their families on this basis is illogical and unjust. Latta, 2014 WL 4977682,
13
at *8 (quoting Plyler v. Doe, 457 U.S. 202, 220 (1982)).
13
The Bruning court also noted the States defense of the marriage amendment was also based
on the traditional notion that two committed heterosexual parents are the optimal partnership for
raising children, which modern-day homosexual parents understandably decry. Bruning, 455
23
Rather than promoting any child welfare interest, excluding same-sex couples from
marriage actually harm[s] the children of same-sex couples by stigmatizing their families and
robbing them of the stability, economic security, and togetherness that marriage fosters. Bostic,
760 F.3d at 383. See also Baskin, 766 F.3d at 662; Kitchen, 755 F.3d at 1226; Latta, 2014 WL
4977682, at *6. As the Supreme Court recognized in Windsor, denying recognition of marriages
of same-sex couples humiliates tens of thousands of children now being raised by same-sex
couples and makes it difficult for the children to understand the integrity and closeness of their
own family and its concord with other families in their community and in their daily lives.
Windsor, 133 U.S. at 2694.
Finally, an asserted interest in providing the support of marriage only to couples whose
unions may result in biological procreation does not rationally explain why Nebraska allows
different-sex couples to marry whether or not they can procreate. By singling out same-sex
couples and only same-sex couples for a purported natural procreation requirement, a defense
based on the responsible procreation rationale is so underinclusive that it leads the
inescapable conclusion that the disparate treatment rest[s] on an irrational prejudice. Bostic,
760 F.3d at 382 (quoting Cleburne, 473 U.S. at 450). This is not a matter of underinclusiveness
and overinclusiveness at the margins. The mismatch here is so extreme that the goal of
F.3d at 867. This notion has been rejected by every mainstream child welfare organization and
by all credible scientific research on the issue. See Bostic, 760 F.3d at 383 (summarizing
scientific consensus). It was also raised and necessarily rejected by the Supreme Court in
Windsor (see BLAGs Merits Brief, at *21). And it was rejected by virtually every federal court
to consider it post-Windsor, including even the Sixth Circuit panel in DeBoer that rejected a
constitutional challenge to similar marriage bans. See DeBoer, 2014 WL 5748990, at *10 (Gay
couples, no less than straight couples, are capable of raising children and providing stable
families for them.). In any event, even if the premise that same-sex couples are inferior parents
were correct, as numerous courts have recognized, preventing same-sex couples from marrying
does not rationally further this interest in optimal parenting because it does not stop them from
having children; it just harms the children they already have. Bostic, 760 F.3d at 383; Baskin,
766 F.3d at 662; Kitchen, 755 F.3d at 1226; Latta, 2014 WL 4977682, at *6.
24
encouraging responsible procreation simply is not a rational explanation for the line drawn by the
marriage ban. See Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 366 (2001)
(explaining that in Cleburne there was no rational basis because purported justifications for the
ordinance made no sense in light of how the city treated other groups similarly situated in
relevant respects); Eisenstadt, 405 U.S. at 449 (no rational basis where law was riddled with
exceptions for similarly situated groups). A degree of arbitrariness is inherent in government
regulation, but when there is no justification for governments treating a traditionally
discriminated-against group significantly worse than the dominant group in the society, doing so
denies equal protection of the laws. Baskin, 766 F.3d at 664-65.
For all these reasons, the responsible procreation rationale fails on its own terms as a
matter of logic. But even if the responsible procreation argument made logical sense, the
argument erroneously assumes that the sole purpose of marriage is to serve as an incentive
program to facilitate responsible procreation and childrearing. To the contrary, marriage is
more than a routine classification for purposes of certain statutory benefits, Windsor, 133 U.S.
at 2692, and many legal consequences attach to marriage that have nothing to do with
procreation or child-rearing. See Latta, 2014 WL 4977682, at *7. As the Supreme Court
explained in Turner v. Safley, 482 U.S. 78, 95-96 (1987), even when procreation is impossible,
marriages have many other attributes that are constitutionally protected. See also Griswold v.
Connecticut, 381 U.S. 479, 486 (1965) (Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred.). Just as it would demean a
married couple were it to be said marriage is simply about the right to have sexual intercourse, it
demeans married couplesespecially those who are childlessto say that marriage is simply
25
about the capacity to procreate. Latta, 2014 WL 4977682, at *7 (quoting Lawrence, 539 U.S. at
567).
c.
Nebraskas Marriage Ban Cannot Be Justified By a Purported

Interest in Federalism or Democratic Deliberation.
Nebraskas marriage ban cannot be defended on federalism grounds. Windsor

unequivocally affirmed that state laws restricting who may marry are subject to constitutional
limits and must respect the constitutional rights of persons. 133 S. Ct. at 2691 (citing Loving);
id. at 2692 (marriage laws may vary, subject to constitutional guarantees, from one State to the
next). As the Fourth Circuit explained, Windsor does not teach us that federalism principles
can justify depriving individuals of their constitutional rights; it reiterates Lovings admonition
that the states must exercise their authority without trampling constitutional guarantees. Bostic,
760 F.3d at 379. Our federalist structure is designed to secure[ ] to citizens the liberties that
derive from the diffusion of sovereign power rather than to limit fundamental freedoms.
Kitchen, 755 F.3d at 1229 (quoting New York v. United States, 505 U.S. 144, 181 (1992)).
Similarly, the fact that Nebraskas marriage ban was adopted by the voters does not
insulate it from constitutional review even under the deferential rational-basis standard. It is
plain that the electorate as a whole, whether by referendum or otherwise, could not order
[governmental] action violative of the Equal Protection Clause, and the [government] may not
avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the
body politic. Cleburne, 473 U.S. at 448 (citation omitted) (striking down ordinance under
rational-basis review). Indeed, the law struck down under rational-basis review in Romer v.
Evans was ratified by the voters as part of a statewide referendum. 517 U.S. at 624. A citizens
constitutional rights can hardly be infringed simply because a majority of the people choose that
it be. Lucas v. FortyFourth Gen. Assembly of Colo., 377 U.S. 713, 73637 (1964).
26
Nothing in Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014),
changes these basic constitutional principles. Scheutte was a case about affirmative action in
which a plurality of the Supreme Court concluded that state bans on use of affirmative action
should not be treated as constitutionally suspect under the Courts political process
jurisprudence simply because such laws have a racial focus. Id. at 1634. The Court reasoned
that although race was an undoubted subject of the ballot issue the decision to withhold
affirmative action does not result in any infliction of a specific injury. Id. at 1635-36. In
contrast, the Court reaffirmed the well-established principle that when hurt or injury is inflicted
on racial minorities by the encouragement or command of laws or other state action, the
Constitution requires redress by the courts. Id. at 1637. Indeed, the Court went out of its way
to emphasize that scores of other examples teach that individual liberty has constitutional
protection, and that liberty's full extent and meaning may remain yet to be discovered and
affirmed. Id. at 1636.
Nebraskas marriage ban does not simply have a sexual orientation focus. It inflicts
real and concrete injuries on same-sex couples and their families. Minorities trampled on by the
democratic process have recourse to the courts; the recourse is called constitutional law.
Baskin, 766 F.3d at 671.
ii.
Nebraskas Marriage Ban Is Unconstitutional Because Its Primary

Purpose and Practical Effect Are to Make Same Sex Couples Unequal.
An additional reason the marriage ban is unconstitutional under any level of scrutiny is
that its primary purpose and practical effect are to make same-sex couples unequal. Windsor is
the latest in a long line of cases holding that statutes whose primary purpose and practical effect
is to impose inequality violate equal protection. See Windsor, 133 S. Ct. at 2693; Romer, 517
27
U.S. at 634-35; Cleburne, 473 U.S. at 446-47; U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534
(1973).
Windsor instructs that to determine whether laws have the primary purpose or practical
effect of imposing inequality, courts should examine [t]he history of [the] enactment and its
own text, Windsor, 133 S. Ct. at 2693, as well as the statutes operation in practice, id. at
2694. Based on its analysis of DOMAs history, text, and operation in practice, the Court
concluded that DOMA was unconstitutional because its avowed purpose and practical effect
was to impose a disadvantage, a separate status, and so a stigma upon married same-sex
14
couples and their families. Id. at 2693.
All of the facts leading the Supreme Court in Windsor to reach this conclusion about
DOMA apply to Nebraskas marriage amendment. First, the same historical background that
prompted the enactment of DOMA also prompted Nebraskas marriage amendment. Like
DOMA, the marriage ban was not enacted long ago at a time when many citizens had not even
considered the possibility that two persons of the same sex might aspire to occupy the same
status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S. Ct. at 2689.
The awareness of such aspirations on the part of same-sex couplesand the desire to thwart
themare precisely the reasons the ban was enacted in the first place. As noted in Windsor, the
14
The relevant inquiry is based on the legislative purpose of the enactment, not the motivations
of the individual legislators or voters. Cf. Bd. of Educ. of Westside Cmty. Schs. v. Mergens By
and Through Mergens, 496 U.S. 226, 249 (1990) (explaining in context of Establishment Clause
that what is relevant is the legislative purpose of the statute, not the possibly religious motives
of the legislators who enacted the law). Evidence that legislators were motivated by animus can
be relevant in answering that question, but imposing inequality is an impermissible purpose,
even when it is not motivated by malicious ill will. Garrett, 531 U.S. at 374 (Kennedy, J.,
concurring). Regardless the motivations of legislators or voters, laws based on the unstated
premise that some citizens are more equal than others, Zobel v. Williams, 457 U.S. 55, 71
(1982) (Brennan, J., concurring), cannot stand.
28
avowed purpose of DOMA was to defend the institution of traditional marriage against [t]he
effort to redefine marriage to extend to homosexual couples. Id. at 2693 (citing the House
Report). Similarly, Nebraskas official information on its marriage amendment informed voters
that supporters of the marriage amendment contend that [i]n the event that another state
legalizes same-sex marriages, Nebraska same-sex couples could get married there, return, and
want the union recognized in Nebraska, and the amendment limits marriage and its benefits to
married heterosexual couples. Nebraska Secretary of State, Information Pamphlet on Initiative
Measures Appearing on the 2000 General Election Ballot , available at
http://www.sos.ne.gov/elec/prev_elec/2000/pdf/info_pamphlet.pdf. (accessed November 25,
2014). A spokesperson for the Nebraska Coalition for the Protection of Marriage, which
sponsored the amendment, likewise argued that the amendment was necessary because of the
action in Vermont allowing civil unions. Pam Belluck, Nebraskans to Vote on Most Sweeping
Ban on Gay Unions, New York Times, Oct, 21, 2000, available at
http://www.nytimes.com/2000/10/21/us/nebraskans-to-vote-on-most-sweeping-ban-on-gayunions.html (accessed November 26, 2014).
15
15
A spokesperson for the proponents of the marriage amendment publicly stated that the
amendment was necessary to send a message to society about homosexuality that
heterosexuality and homosexuality are not morally equivalent and that homosexuality is a sin
and should not be sanctioned even by quasi-marriage unions such as domestic partnerships and
civil unions. Erin Joy, The 4-1-1 on Initiative 416, Mills Says I Do to DOMA, UNO
Gateway, October 27, 2000 (attached as Exh. 15); Leslie Reed, New Coalition Gets Behind
Same Sex Ban, Omaha World Herald, October 5, 2000 (attached as Exh. 16). The Supreme
Court pointed to similar sentiments expressed by supporters of DOMA as further evidencing its
purpose to impose inequality. Windsor, 133 S. Ct. at 2693 (referencing [t]he Houses
conclu[sion] that DOMA expresses both moral disapproval of homosexuality, and a moral
conviction that heterosexuality better comports with traditional (especially Judeo-Christian)
morality.).
29
Second, the marriage amendments text reflects the same legislative purpose of imposing
inequality that the Supreme Court found reflected in DOMA. The text of DOMA provided that
the word marriage means only a legal union between one man and one woman as husband and
wife, and the word spouse refers only to a person of the opposite-sex who is a husband or a
wife. 1 U.S.C. 10. The Supreme Court deemed this text to further demonstrate the laws
purpose to impose a separate, unequal status on same-sex couples. Windsor, 133 S. Ct. at 2683,
2693. The text of Nebraskas marriage amendment even more starkly reflects this purpose:
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The
uniting of two persons of the same sex in a civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized in Nebraska. Neb. Const. art. I, 29.
Finally, like the statute struck down in Windsor, the inescapable practical effect of
Nebraskas marriage ban is to impose a disadvantage, a separate status, and so a stigma upon
same-sex couples in the eyes of the state and the broader community. Windsor, 133 S. Ct at
2693. The marriage ban diminish[es] the stability and predictability of basic personal relations
of gay people and demeans the couple, whose moral and sexual choices the Constitution
protects. Id. at 2694. The Supreme Court has repeatedly emphasized that discrimination that
stigmatiz[es] members of the disfavored group as innately inferior and therefore as less worthy
participants, can cause serious injuries to those who are denied equal treatment solely because
of their membership in a disfavored group. Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)
(citation omitted).
As was the case for DOMA, the history and text of the amendment, as well as its
practical effect, show that imposing inequality on same-sex couples was not an incidental
effect of some broader public policy; it was its essence Windsor, 133 S. Ct at 2693. This
30
governmental declaration of inequality is precisely what Windsor prohibits the government from
doing.
*
For all these reasons, Plaintiffs are likely to prevail on the merits of their claims that
Nebraskas marriage ban is unconstitutional.
II.
Plaintiffs Will Be Irreparably Harmed Without a Preliminary Injunction

There is no question that Plaintiffs suffer irreparable harm every day that Nebraskas un-
constitutional marriage ban remains in force. The Eighth Circuit has instructed that a showing
that a challenged law interferes with the exercise of constitutional rights . . . supports a finding
of irreparable injury. Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d
861, 867 (8th Cir.1977). Indeed, deprivation of constitutional rights for even minimal periods
of time, unquestionably constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976);
see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (Furthermore, when an alleged
constitutional right is involved, most courts hold that no further showing of irreparable injury is
necessary.) (citation omitted); Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) ([W]hen
reviewing a motion for preliminary injunction, if it is found that a constitutional right is being
threatened or impaired, a finding of irreparable injury is mandated.).
As discussed more fully above, the Plaintiffs are experiencing real, immediate and
irreparable harm from the States refusal to let them marry or recognize their marriages. Until an
injunction is issued, Sally and Susan Waters will continue to face Sallys stage IV cancer with
the added burden and stress of knowing that when Sally passes, Susan will be denied important
financial protections afforded to widows to help prevent them from losing their homes and
otherwise struggling financially upon the death of a spouse. Exh. 1 (Sally Waters Dec.), pars.
31
11-18; Exh. 2 (Susan Waters Dec.), par. 4. And they will continue to live with the knowledge
that when Sally dies, the last official record of her lifeher death certificatewill say their
marriage did not exist, making an already painful and difficult time even more upsetting for
Susan. Exh. 1 (Sally Waters Dec.), par. 19; Exh. 2 (Susan Waters Dec.), par. 5. Until an
injunction is issued, Nick Kramer and Jason Cadeks daughter will be denied the security of
having a legal relationship with both of her parents and her dads will continue to experience the
stress that results from that. Exh. 3 (Kramer Dec.), pars. 5-8. Until an injunction is issued,
Crystal Von Kampen and her family will be denied veterans benefits that would improve their
standard of living and alleviate the financial stress they are under. Exh. 5 (Von Kampen Dec.),
pars. 6-10.
In addition to these tangible harms, until an injunction is issued, the Plaintiffs will
continue to experience the stigma of the States denigration of their relationships and families.
Exh. 1 (Susan Waters Dec.), pars. 20, 22; Exh. 3 (Kramer Dec.), pars. 9, 11; Exh. 5 (Von
Kampen Dec.), pars. 12, 13; Exh. 9 (J. Kllstrm-Schreckengost Dec.), pars. 7, 9; Exh. 11
(Plumb Dec.), pars. 9, 10; Exh. 13 (Clark Dec.), pars. 6-8. As the Supreme Court recognized in
Windsor, the denial of marriage to same-sex couples tells those couples, and all the world, that
their relationships are second-tier. Id. at 2694. And the Plaintiffs children will continue to
receive the harmful message that their families are not true families like other families. Exh. 1
(Susan Waters Dec.), par. 21; Exh. 3 (Kramer Dec.), par. 8; Exh. 9 (J. Kllstrom-Schreckengost
Dec.), par. 8. The marriage ban humiliates these children and makes it difficult for them to
understand the integrity and closeness of their own family and its concord with other families in
their daily lives. Windsor, at 2694.
32
III.
Injunctive Relief Is in the Public Interest and the Harm to Plaintiffs Outweighs Any
Harm to Defendants.
[I]t is always in the public interest to prevent the violation of a partys constitutional
rights. Awad, 670 F.3d at 1131-32. While the public has an interest in the will of the voters
being carried out . . . the public has a more profound and long-term interest in upholding an
individuals constitutional rights. Id. at 1132; accord Phelps-Roper v. Nixon, 545 F.3d 685, 688
(8th Cir. 2008) ([T]he public is served by the preservation of constitutional rights.), overruled
on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012).
Similarly, because constitutional rights are at stake, the balance of harms tips decidedly
in favor of Plaintiffs. It is well established that when a law is likely unconstitutional, the
interests of those the government represents, such as voters do not outweigh a plaintiffs interest
in having its constitutional rights protected. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1145 (10th Cir. 2013) (en banc) (plurality) (quoting Awad, 670 F.3d at 1131), affd, 134 S.
Ct. 2751 (2014). Thus, if the moving party establishes a likelihood of success on the merits, the
balance of harms normally favors granting preliminary injunctive relief because the public
interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably
unconstitutional. ACLU of Ill. v. Alvarez, 679 F.3d 583, 58990 (7th Cir. 2012).
Before October 6, 2014, when the Supreme Court denied petitions for certiorari in cases
from the Fourth, Seventh, and Tenth Circuits striking down state marriage bans, some courts had
denied preliminary relief or stayed enforcement of injunctions to prevent confusion that would
ostensibly result if a state were forced to allow same-sex couples to marry pursuant to a lower
court judgment that was subsequently reversed on appeal. See, e.g., Kitchen, 755 F.3d at 1230
(staying mandate pending disposition of petition for certiorari). But the Supreme Courts
decision on October 6 to deny certiorari and allow the lower courts judgments in four states to
33
go into effect (and ultimately lead to marriage bans being invalidated in 11 states) demonstrates
that such stays are no longer warranted. If the Supreme Court merely wanted to delay review
until a circuit split arises, the Supreme Court could have simply held the petitions and not
taken any action on them until it was prepared to grant certiorari in a case raising this issue.
Instead, the Supreme Court denied review outright, sending a strong signal that any remaining
doubt about the Supreme Courts ultimate resolution of the legal issue does not justify continuing
to deny same-sex couples the freedom to marry. Indeed, the Supreme Court itself has denied
every application for a stay pending appeal or petition for certiorari in a marriage case since its
October 6 denials of certiorari, including after the DeBoer decision from the Sixth Circuit
created a circuit split. Otter v. Latta, 135 S.Ct. 245 (2014) (denying Idahos application for stay
pending a petition for certiorari); Parnell v. Hamby, 14A413, 135 S. Ct. 399 (2014) (denying
Alaskas application for a stay pending appeal); Moser v. Marie, 14A503, --- S. Ct. ---, 2014 WL
5847590 (U.S. Nov. 12, 2014) (denying Kansass application of a stay pending appeal); Wilson
v. Condon, No. 14A533, --- S. Ct.---, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying
application for stay pending appeal in South Carolina marriage case).
CONCLUSION
For all these reasons, a preliminary injunction should issue.
WHEREFORE, Plaintiffs respectfully ask this Court to issue a preliminary injunction
immediately:
i)
enjoining defendants and their agents from enforcing Neb. Const. art. I, section
29 and any other sources of state law that a) exclude same-sex couples from
marrying, and/or b) refuse recognition of the marriages of same-sex couples
that were validly entered into in other jurisdictions;
34
ii)
enjoining defendants and their agents from denying same-sex spouses any
incidents of marriage that are available to different-sex spouses.
iii)
mandating defendant CEO of the Nebraska Department of Health and Human

Services to i) amend the marriage worksheet that the Department provides to
county clerks, which currently provides a space for groom and a space for
bride, to allow couples to apply for a marriage license regardless of gender,
and ii) accept records of marriages regardless of the genders of the spouses; and
iv)
enjoining defendant Clerk of Lancaster County from denying marriage licenses

to same-sex couples who otherwise meet the requirements to marry under
Nebraska law.
Dated this ____ day of December, 2014.

(402) 346-1132
941 O Street #706
Lincoln NE 68508
402-476-8091
Leslie Cooper
Joshua Block
ACLU Foundation
(212) 549-2627
35
lcooper@aclu.org
jblock@aclu.org
of December, 2014.
_/s/ Angela Dunne_____________________
36

SUSAN WATERS and SALLY WATERS, )
)
CADEK, CRYSTAL VON KAMPEN and )
)
)
ROBY, JESSICA KALLSTROM)
SCHRECKENGOST and KATHLEEN
)
)
MARJORIE PLUMB and TRACY WEITZ,)
)
MADDOX,
)
)
Plaintiffs,
)
)
v.
)
)
)
)
)
Attorney General of Nebraska, and KIM
)
)
)
)
And DAN NOLTE in his official capacity as )
)
)
Defendants.
)
CIVIL ACTION NO. 8:14-cv-00356
PLAINTIFFS INDEX OF EVIDENCE IN SUPPORT OF THEIR MOTION FOR

COMES NOW, Plaintiffs, and move this court pursuant to NECivR7.1(a)(2), submits the
following evidence in support of their Motion for Preliminary Injunction and Brief in Support.
Attachment
Description
Exhibit A
Declaration of Susan Waters
Exhibit B
Declaration of Sally Waters
Exhibit C
Declaration of Nickolas Kramer
Exhibit D
Declaration of Jason Cadek
Exhibit E
Declaration of Crystal Von Kampen
Exhibit F
Declaration of Carla Morris-Von Kampen
Exhibit G
Declaration of Gregory Tubach
Exhibit H
Declaration of William Roby
Exhibit I
Declaration of Jessica Kallstrom-Schreckengost
Exhibit J
Declaration of Kathleen Kallstrom-Schreckengost
Exhibit K
Declaration of Marjorie Plumb
Exhibit L
Declaration of Tracy Weitz
Exhibit M
Declaration of Randall Clark
Exhibit N
Declaration of Thomas Maddox
December 2, 2014
Respectfully submitted,
(402) 346-1132
941 O Street #706
Lincoln NE 68508
402-476-8091
Leslie Cooper
Joshua Block
ACLU Foundation
(212) 549-2627
lcooper@aclu.org
jblock@aclu.org
of December, 2014.
_/s/ Angela Dunne_____________________

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
)
capacity as Governor of Nebraska,
)
JON BRUNING in his official
)
capacity as Attorney General of Nebraska, )
and KIM CONROY in her official capacity )
as Tax Commissioner of the Nebraska
)
Department of Revenue,
)
)
Defendants.
)
CASE No. 8:14cv00356
DECLARATION OF
SUSAN WATERS
I, Susan Waters, declare as follows:

1.
I am 53 years old and a resident of Omaha, Nebraska. I work at the University

of Nebraska Omaha helping faculty use technology in the classroom.
2.
I submit this declaration in support of Plaintiffs' Motion for a Preliminary

Injunction.
3.
I have reviewed the Declaration of Sally Waters in support of Plaintiffs'

Motion for Preliminary Injunction. That declaration is accurate and I agree
with Sally's statements in that declaration.
4.
On top of the incredible stress of worrying about whether the medication she
is taking will help extend her life as it sickens her, I have the added stress of
worrying about how I will manage to financially support our family after Sally
passes way because I will not be afforded the financial protections provided to
widows and widowers under Nebraska law.
5.
The thought of receiving a death certificate for Sally that states that she was
"single" and leaves blank the space for surviving spouse, and having our
children have to see that, makes me feel sick to my stomach. To have an
official document like that say that our marriage had no bearing in this world
will make a painful and difficult time even more upsetting.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct.
Dated this -/-- day of
'D..tJ ( <!
1 ,_
LYv'

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
DECLARATION OF
SALLY WATERS
)
)
)
)
)
)
)
)
)
Defendants.
v.
I, Sally Waters, declare as follows:
l.
I am 58 years old and a resident of Omaha, Nebraska. I work as a leadership

development consultant at Mutual of Omaha.
2.

Injunction.
3.
I have been in a committed relationship with Susan Waters for over 15 years.
4.
Susan and I had a religious wedding in 1998 at our church in Omaha, North
Side Christian Church.
5.
Susan and I got married on September 19, 2008, in California, where we were
living at the time.
6.
Susan and I would like our marriage to be recognized in Nebraska.
7.
Susan and I were both born and raised in Nebraska but moved to California in
2002 after adopting our first child, G.W. (now 13). We left Nebraska because
we could not both be legally recognized parents of our daughter here. That is
because Nebraska law limits joint and second parent adoption to married
couples but bars same-sex couples from marrying or having their marriages
recognized. We feared that the lack of a legal tie to one of her parents put
G.W. at risk in the event something happened to her legal parent. So we
moved to a state where we were able to provide her with the security of two
legal parents by doing a second parent adoption.
8.
A few years after moving to California, Susan and I welcomed a second child,
J.W., now 10, whom we jointly adopted out of foster care in California.
9.
In 2010, Susan and I moved our family back to Nebraska. We missed our
families and wanted to be closer to our aging parents.
10.
In 2011, Susan welcomed into our family a teenager, K.J., now 18, for whom
we are legal guardians.
11.
In January 2013, I was diagnosed with stage III breast cancer. I have
undergone surgery, chemotherapy and radiation. The treatment took a toll on
me physically and I had to stop working for several months as a result.
12.
Susan has been by my side throughout the grueling treatment, taking leave
from work to care for me and to manage our home and family during
hospitalizations that resulted from my poor response to chemotherapy.
13.
The loss of my income took a significant toll on our family's finances, as did
the medical bills.
14.
By April 2014, my cancer had spread to my spine and was diagnosed as stage
IV metastatic breast cancer. I am under treatment again both to slow the
tumor growth and to deal with the debilitating pain. Susan and I have been
taking steps to get my affairs in order, as my future is very uncertain.
15.
The fact that our marriage is not recognized in our home state adds to the
already excruciating pain and stress of facing stage IV cancer.
16.
We hired lawyers to draw up wills, powers of attorney, and living wills, but
worry that if we don't have the documents readily at hand during a medical
emergency, Susan will not be able to make medical decisions for me if that
becomes necessary, get information about my condition from doctors, or even
be by my side in the hospital.
17.
Susan and I are also anxious about how Susan will manage to support the
family after I pass away. We worry about the fact that Susan will have to pay
an 18% inheritance tax on half of the property we share, including the home
we own together, because she won't be entitled to the spousal rate of 1% and
the homestead protection for widows. With that kind of tax bill, we don't
know if Susan and the kids will be able to remain in our home.
18.
In addition, when Susan reaches retirement age, she will not be entitled to my
social security since Nebraska does not recognize our marriage. And as
beneficiary of my 40 I k, but not recognized as my spouse, Susan will not be
allowed to roll the money into her own IRA and will have to pay taxes on it
right away.
t 9.
It causes me great distress to know that because our marriage is not

recognized under Nebraska law, when I die, my death certificate will not
reflect my marriage to Susan and, instead, will list my marital status as " single"
and leave blank the space for surviving spouse. Susan and I have made a life
together for 15 years and we are married. It' s tremendously upsetting to me
that the final official document of my life will say that our marriage didn't
exist. It's also horrifying to me to imagine Susan, in her time of grief, having
to receive a death certificate that leaves blank the space for surviving
spouse- the space where her name should appear. I worry that will cause her
great anguish.
20.
The fact that our marriage isn't recognized is stigmatizing and demeaning to
us as a family.
21.
Susan and I are concerned that the state's refusal to recognize our marriage
sends a damaging message to our children about the value and status of their
family.
22.
Susan and I jointly file our federal income taxes as married filing jointly. We
would like to file our state income taxes the same way but are required to file
Nebraska taxes as "single". Having to file as "single" and leave blank the
space provided on our tax returns for "spouse", denying the existence of our
marriage, is demeaning and hurtful to us.
Dated this 30 day of
/\/~~-0._, 2014.

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
)
)
)
)
)
)
Defendants.
)
DECLARATION OF
NICKOLAS KRAMER
I, Nickolas Kramer, declare as follows:

1.
I am 42 years old and a resident of Omaha, Nebraska. I work as a

management consultant.
2.
I submit this declaration in support of Plaintiffs Motion for a Preliminary

Injunction.
3.
I have been in a committed relationship with Jason Cadek for over ten years.
We were married on October 12, 2013 in Iowa.
4.
Jason and I would like our marriage to be recognized in Nebraska.
5.
In 2011, Jason and I became the proud parents of a baby girl A.C.-K. who is
now 3 years old. But because Nebraska law only allows joint or second
parent adoption for married couples and our marriage is not recognized in
Nebraska, A.C.-K. could only be adopted by one of us. As a result, our
daughter has no legal ties to Jason, who she knows as Daddy.
6.
The lack of a legal parent-child relationship between A.C.-K. and Jason denies
our daughter important protections and economic resources and creates
profound stress and insecurity for our family.
7.
Jason and I worry about him not being able to make medical decisions for
A.C.-K., or even be with her in the hospital, in the event of a medical
emergency. If Jason were to pass away, our daughter would be afforded none
of the economic supports available to children who lose a parent such as
social security survivor benefits. What most keeps Jason and me awake at
night is the fear that our daughter might not be able to remain with Jason if
anything were to happen to me.
8.
Jason and I also worry about the psychological impact on our daughter when
she is old enough to understand that Jason is not her legal parent and that in
the eyes of the state, her family is not considered a real family worthy of legal
recognition. We are hopeful that the law will change before that time comes.
9.
The fact that our marriage isnt recognized is stigmatizing and demeaning to
us as a family.
10.
Jason and I are fortunate that Jasons employer provides health insurance
benefits for me and our daughter despite the fact that we are not considered to
be his family members under Nebraska law. However, because our marriage
is not recognized by the State of Nebraska, we have to pay taxes on the
coverage, which amounts to $5650 in taxable income a year. If our marriage
were recognized, the family health benefits would not be taxed.
11.
Jason and I file our federal income taxes as married filing jointly. We would
like to file our state income taxes the same way, but are required to file
Nebraska taxes as single. Having to file as single and leave blank the
space provided on our tax returns for spouse, denying the existence of our
December
Dated this ____ day of __________________,
2014.
____________________________________
Nickolas Kramer

MADDOX,
Plaintiffs,
v.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATION OF
JASONCADEK

capacity as Attorney General of Nebraska,
)
)
)
Defendants.
)
I, Jason Cadek, declare as follows:
1.
I am 37 years old and a resident of Omaha, Nebraska. I work as a compliance

auditor for a bank.
2.

Injunction.
3.
I have reviewed the Declaration of Nickolas Kramer in support of Plaintiffs'

with Nick' s statements in that declaration.
D
1
Dated this
\t
day of
(k,e'-{~
, 2014.

MADDOX,
Plaintiffs,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
v.
)
)
)
)
)
)
)
Defendants.
)
DECLARATION OF
CRYSTAL VON KAMPEN
I, Crystal Von Kampen, declare as follows:

1.
I am 35 years old and live in Norfolk, Nebraska.
2.

Injunction.
3.
I have been in a committed relationship with Carla Morris-Von Kampen for

five years. We were married in Iowa on November 1, 2013 .
4.
Carla and I would like our marriage to be recognized in Nebraska.
5.
I served in the Navy for 8 years. During my service, I deployed to Iraq with
the Marine Corps, where I was a Navy corpsman. As a result, I am now
disabled due to post-traumatic stress.
6.
Nebraska's refusal to recognize my marriage to Carla means that I cannot

access various veterans' benefits that otherwise would be available to my
family.
7.
I applied for a Veterans' Administration home loan-a loan program for

veterans to help purchase properties. The application was submitted under
both Carla and my names since the loan was for our shared home. The state
Veterans ' Administration office informed me that because our marriage isn't
recognized in Nebraska, our loan will not qualify for VA financing as a
veteran and spouse loan. As a result, we have had to pay an additional
$11 ,000 for our home loan.
8.
Because my marriage to Carla is not recognized in my home state, I'm not

receiving the extra compensation afforded to disabled veterans if they are
married, which would amount to $270 a month.
9.
Carla' s daughter from a prior marriage, who is a college junior, applied for a
waiver of tuition available to step-children of disabled veterans. The director
of the Nebraska Department of Veterans Affairs denied her application
because my marriage to Carla is not recognized in Nebraska. The denial was
upheld on appeal by the Veterans Advisory Commission. The denial of this
benefit means that Carla's daughter has to pay approximately $5,600 per year
more in tuition.
I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and
correct.
Dated this )..q day of /JO Viv:, 8~"f2~
'2014.
Crystal Von Kampen

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
)
)
)
)
)
)
)
Defendants.
DECLARATION OF
CARLA MORRIS-VON KAMPEN
I, Carla Morris-Von Kampen, declare as follows:

1.
I am 40 years old and a resident of Norfolk, Nebraska. I work at a non-profit

that helps families with children who have emotional and mental disabilities.
2.

Injunction.
3.
I have reviewed the Declaration of Crystal Von Kampen in support of

Plaintiffs' Motion for Preliminary Injunction. That declaration is accurate and
I agree with Crystal' s statements in that declaration.
F
1
-----~--
I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and
correct.
day of ~ f6VPA"'~u, 2014.
Dated this
z_q
---: /~,If,...:;/
... ii
..
......
Carla Morris-Von Kampen

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
\' .
DA VE HEINEMAN in his official

capacity as Attorney General ofNebraska,
and KIM CONROY in her official capacity
Defendants.
)
)
)
)
)
)
)
DECLARATION OF
GREGORY TUBACH
)
)
)
)
)
I, Gregory Tubach, declare as follows:

1.
I am 49 years old and a resident of Lincoln, Nebraska. I work as an editor at a

publishing company.
2.

Injunction.
3.
I have been in a committed relationship with William ("Bil") Roby for 28

years.
4.
Bil and I have taken all the steps we can to replicate protections of marriage,
such as hire an attorney to prepare wills, powers of attorney, and healthcare
proxies (which cost us $500), but we understand that these documents can
proYide only a small fraction of the protections that marriage provides.
5.
Bil and I would like to get married because we love and are committed to one
another and we would like all of the protections, the security and the dignity
that come with being married.
6.
Bil and I want to marry in Nebraska, as opposed to in another state, because

Nebraska is our home. In addition, Nebraska is where our friend s and most of
our extended family live.
7.
The fact that Bil and I can't marry in Nebraska is stigmatizing and demeaning
to us.
Dated this
)'/day of r~..t?
(fl
m be.C
, 2014.
Gregory .' ubaeUv
f .1
\.}

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
)
\'.
)
)
)
)
)
)
)
Defendants.
)
DECLARATION OF
WILLIAM ROBY
I, William Roby, declare as follows:

1.
I am 57 years old and a resident of Lincoln, Nebraska. I work at a state

agency.
2.

Injunction.
3.
I have reviewed the Declaration of Gregory Tubach in support of Plaintiffs'

with Greg's statements in that declaration.
. .I _ d ay of
D at ed t h is_
'
/
..,.-;:_:>.. (.. t>?-../.>l
'2014.
1'
/'
,.J
' I 1-------- -
/ /;/f
/ _"..- , . -......
. . ---


GREGORY TUBA CH and WILLIAM
MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
v.
)
)
)
)
)
)
)
)
Defendants.
)
DECLARATION OF
JESSICA KALLSTROMSCHRECKENGOST
I, Jessica Kallstrom-Schreckengost, declare as follows:

1.
I am 33 years old and a resident of Omaha, Nebraska. I am a lawyer.
2.

Injunction.
3.
I have been in a committed relationship with Kathleen KallstromSchreckengost since we met in college over ten years ago. Kathleen and I got
married on May 12, 2010, in Massachusetts.
I
1
4.
Kathleen and I would like our marriage to be recognized in Nebraska.
5.
Kathleen and I recently returned to Nebraska, where Kathleen grew up, after
living in New Jersey and New York several years. Our decision to come to
Nebraska was motivated in part by our desire to be near Kathleen's extended
family after the birth of their son, S.K.S., now 9 months old. S.K.S. was born
in New York.
6.
Kathleen and I are planning to have another child and worry about the fact
that if that child is born before the law changes, he or she will be denied the
protection of having two legal parents.
7.
The fact that our marriage isn't recognized is stigmatizing and demeaning to
our family.
8.
Kathleen and I are concerned that the state's refusal to recognize our marriage
sends the message to our son that his family is less deserving of respect and
support than other families.
9.
Kathleen and I file our federal income taxes as married filing jointly. We
would like to file our state income taxes the same way but are required to file
Nebraska taxes as "single". Having to file state taxes as "single" while filing
federal taxes as married couple will cause us to incur greater fees from our
accountant. And having to file as single and leave blank the space provided
on our tax returns for "spouse", denying the existence of our marriage, is
demeaning and hurtful to us.
Dated this
~'tf)_- day ofJJJ~___ ,2014.


GREGORY TUBA CH and WILLIAM
MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
)
v.
)
)
)
)

Defendants.
DECLARATION OF
KATHLEEN KALLSTROMSCHRECKENGOST
)
)
)
)
I, Kathleen Kallstrom-Schreckengost, declare as follows:

1.
I am 29 years old and a resident of Omaha, Nebraska. I am a clinical

psychologist.
2.

Injunction.
3.
I have reviewed the Declaration of Jessica Kallstrom-Schreckengost in support

of Plaintiffs' Motion for Preliminary Injunction. That declaration is accurate
and I agree with Jessica's statements in that declaration.
J
1
.}N\
Dated this
IJ::JO
day of
NSN~
, 2014.
x~~~~
Kathleen Kallstrom-Sebree~

SUSAN WATERS and SALLY WATERS. )
)
CADEK, CRYSTAL VON KAMPEN and )
)
)
ROBY. JESSICA KALLSTROM)
SCHRECKENGOST and KATHLEEN
)
)
MARJORIE PLUMB and TRACY WEITZ,)
)
MADDOX,
)
Plaintiffs,
V.
)
)
)
)
)
)
)
)
)
CASE No. 8: 14cv00356
DECLARATION OF
MARJORIE PLUMB
DA VE HEINEMAN in his official

capacity as Governor of Nebraska.
capacity as Attorney General ofNebraska.
)
)
Defendants.
)
)
I, Marjorie Plumb, declare as follows:

1. I am 55 years old and reside in Omaha, Nebraska. I have my own business, a
firm providing management consulting and executive coaching to non-profit
organizations.
2. I submit this declaration in support of Plaintiffs Motion for a Preliminary
Injunction.
3. I have been in a committed relationship with Tracy Weitz for over ten years. We
were married on August 20. 2008, in California. where they used to live.
4. Tracy and I moved to Nebraska in January 2014, because of a job opportunity for
Tracy.
5. After Jiving our lives as a married couple for over five years in a state that
recognized our man'iage and, thus, enjoying the security marriage provides, it was
upsetting that the price of moving to Nebraska was to effectively become
divorced against our wishes, at least for purposes of state law.
6. Tracy and I would like our marriage to be recognized in Nebraska.
7. The non-recognition of our marriage denies Tracy and me the security of knowing
that we will be recognized as spouses by medical providers for purposes of
accessing information about one another's care and making medical decisions in
the event either of us should become incapacitated. It also denies us the peace of
mind of knowing that when one of us dies, the survivor wi 11 be able to retain all of
our shared prope1ty, including our jointly owned home, as opposed to being hit
with an 18% inheritance tax.
8. Tracy and I have hired attorneys to draw up wills and powers of attorney and have
been told this will cost us about $1.000. But we understand that these documents
will only provide a small fraction of the protections that come with marriage.
9. The stigma of having our maniage disrespected permeates our every-day
activities. Every time we have to answer the simple question "are you married?"
such as at the doctor's office or when signing docwnents at the bank, and caimot
give the simple answer "yes", it' s a reminder of our second-class status.
10. Tracy and I file our federal income taxes as married filing jointly. We would like
to file their state income taxes the same way but are required to file Nebraska
taxes as 'single''. This costs us approximately $400 more in accountant fees than
if we could file jointly. In addition, having to file as "single" and leave blank the
space provided on our tax returns for "spouse", denying the existence of owmarriage, is demeaning and hurtful to us.
Dated this z..'1 day of
f!o v e!Y\ ber
, 2014.

FOR THE DISTRICT OF "JEBRASKA
SUSAN WATERS and SALLY WATERS.
CADEK. CRYSTAL VON KAi'vfPEN and
CARLA MORRIS-VOi'. KAMPE:'.'l.
GREGORY TLBACH and WILLIAM
ROBY. JESSICA KALLSTROMSCI IRECKENGOST and KATHLEEN
)
)
)
)
)
CASE No 8:14cv00156
KALLSTROM-SCHRECKENGOST.
)
MARJORIE PLUMB and TRACY WEITZ, )
MADDOX.
Plaintiffs.
\
DAVE HETNCMAN in his official

JON BRU1\ING in his official
capacit) as Attorm;y General of Nebraska.
and KIM CONROY in her official capacit)
Department of Revenue.
Defendants.
)
)
)
)
)
DECLAR.ATION or
TRACY WEITZ
)
)
)
)
)
)
)
)
)
I, Tracy Weit1, declare as follows:

I.
I am 49 years old and reside in Omaha, Nebraska. J work for a local
foundation .
..,
1 submit this declaration in support of Plaintiffs Motion for a Preliminfil)

Injunction.
3.
J have reviewed the Declaration of Marjorie Plumb in support of Plaintiffs
Motion for Preliminary Injunction. That declaration is accurate and r agree

with Marj's statements in that declaration.
Dated this
fl day of_N'---_O_lf..._____, 2014.

~(=:::=?
Tracy Weitz
Randy Clark
Nov 2914 02:49p
8:14-cv-00356-JFB-TDT
8584560925
p.3
Doc # 10-15 Filed: 12/02/14 Page 1 of 2 - Page ID # 153

MADDOX,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
V.
)
)
)
)
JON BRUNING 1n his official
)
)
)
Defendants.
)
DECLARATION OF
RANDALL CLARK
l , Randall Clark, declare as follows:

1.
I am 61 years old and a resident of La Jolla, California. I am a CPA and chief

financial officer for a company based in Kansas City.
2.
Injunction.
.
3.
I have been in a committed relationship with Thomas Maddox for over thirty
years. We were married on August 22, 2008, in La Jolla, California.
4.
We have ties to Nebraska. Tom grew up in Lincoln and attended both

undergraduate and medical school at the University of Nebraska, and his
- -- -- -
Randy Clark
8:14-cv-00356-JFB-TDT
Nov 29 14 02:49p
8584560925
p.4
extended family continues to live in Nebraska. In addition, Tom and I own

commercial properties in Nebraska.
5.
Tom and I would like our marriage to be recognized in Nebraska.
6.
Because Tom and I ov.n properties in Nebraska, we are required to pay taxes
here. We file our federal income taxes as married filingjointJy. In 2013 we
attempted to file our Nebraska state income tax the same way, but received a
letter from the Nebraska Department of Revenue advising that because the
Nebraska Constitution does not recognize same-sex marriage, we may not file
jointly and must file using the single filing status. Having to file as single in
Nebraska adds to the burden of our tax preparation, requiring many additional
hours of labor. Moreover, having to file as single and leave blank the space
provided on our tax returns for "spouse", denying the existence of our
7.
It is upsetting to Tom and me that whenever we come to Nebraska we

effectively become unmarried for the duration of our visit. We are concerned
about not being recognized as spouses if medical issues were to arise or one of
us were to pass away while in Nebraska.
8.
The fact that our marriage isn't recognized in Nebraska is stigmatizing and
demeaning to us.
the foregoing is true and correct. Dated
this.2..7 It.. day of rJ O.;.R./vY\- ~ , 2014.
Randy Clark
Nov 29 14 02:49p
8:14-cv-00356-JFB-TDT
8584560925
p.1
IN THE UNJTED STATES DISTRJCT COURT


GREGORY TUB..<\CH and WILLIAM
.tv1ARJORIE PLUMB and TRACY WEITZ,
MADDOX,
Plaintiffs,
v.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATIOl\ OF
THOMAS MADDOX
)
)
)
capacity as Governor ofN ebraska,
)
)
)
)
Defendants.
)
DAVE HEINEMA)J" in his official
I, Thomas Maddox, declare as follows:

1. I am 57 years old and reside in La Jolla, California. I am a family physician. I
practice in San Diego and also teach at a family medicine residency program.
2. I submit this declaration in support of Plaintiffs' Motion for a Preliminary
Injunction.
3. I have reviewed the Declaration of Randall Clark in support of P laintiffs' Motion
for Preliminary Injunction. That declaration is accurate and I agree with Randy' s
statements in that declaration.
p.2
8584560925
Randy Clark
8:14-cv-00356-JFB-TDT
Nov 29 14 02:49p
Dated this &fa'Y of
-f1 ~ ~, 2014.
~
Maddox~
Thomas

Motion For Preliminary Injunction

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Motion For Preliminary Injunction

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8:14-cv-00356-JFB-TDT Doc # 10 Filed: 12/02/14 Page 1 of 3 - Page ID # 80

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 8:13-cv-00215

8:14-cv-00356-JFB-TDT Doc # 10 Filed: 12/02/14 Page 2 of 3 - Page ID # 81

8:14-cv-00356-JFB-TDT Doc # 10 Filed: 12/02/14 Page 3 of 3 - Page ID # 82

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 1 of 36 - Page ID # 83

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 8:13-cv-00215

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 2 of 36 - Page ID # 84

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 3 of 36 - Page ID # 85

permitted to marry here.

Declaration of Gregory Tubach (Tubach Dec.), attached as Exh. 7 to Motion, pars. 3, 5;

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 4 of 36 - Page ID # 86

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 5 of 36 - Page ID # 87

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 6 of 36 - Page ID # 88

Plaintiffs Are Likely to Prevail on the Merits

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 7 of 36 - Page ID # 89

A. Nebraskas Marriage Ban Is Subject to Strict Scrutiny Because It Violates

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 8 of 36 - Page ID # 90

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 9 of 36 - Page ID # 91

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 10 of 36 - Page ID # 92

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 11 of 36 - Page ID # 93

Windsor requires that heightened scrutiny be applied to equal protection claims

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 12 of 36 - Page ID # 94

Windsors rejection of rational-basis review abrogates the Eighth Circuits earlier

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 13 of 36 - Page ID # 95

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 14 of 36 - Page ID # 96

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 15 of 36 - Page ID # 97

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 16 of 36 - Page ID # 98

There is no requirement that a characteristic be immutable in a literal sense in order to trigger

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 17 of 36 - Page ID # 99

still no express federal ban on sexual-orientation discrimination in employment, housing, or

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 18 of 36 - Page ID # 100

heightened scrutiny to Arkansass marriage ban because it discriminates based on sex).

Bruning did not considerbecause it was not asked to considerwhether there is a

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 19 of 36 - Page ID # 101

Excluding same-sex couples from marriage does not rationally further

Tradition Is Not an Independent and Legitimate Interest to

Nebraskas marriage ban cannot be justified by an interest in preserving tradition

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 20 of 36 - Page ID # 102

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 21 of 36 - Page ID # 103

people in past generations were irrational or bigoted. As Justice Kennedy explained in

Nebraskas Marriage Ban Is Not Rationally Related to a State Interest

Nebraskas marriage ban cannot be justified by an interest in encouraging responsible

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 22 of 36 - Page ID # 104

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 23 of 36 - Page ID # 105

at *8 (quoting Plyler v. Doe, 457 U.S. 202, 220 (1982)).

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 24 of 36 - Page ID # 106

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 25 of 36 - Page ID # 107

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 26 of 36 - Page ID # 108

Nebraskas Marriage Ban Cannot Be Justified By a Purported

Nebraskas marriage ban cannot be defended on federalism grounds. Windsor

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 27 of 36 - Page ID # 109

Nebraskas Marriage Ban Is Unconstitutional Because Its Primary

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 28 of 36 - Page ID # 110

couples and their families. Id. at 2693.

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 29 of 36 - Page ID # 111

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 30 of 36 - Page ID # 112

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 31 of 36 - Page ID # 113

Plaintiffs Will Be Irreparably Harmed Without a Preliminary Injunction

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 32 of 36 - Page ID # 114

8:14-cv-00356-JFB-TDT Doc # 10-1 Filed: 12/02/14 Page 33 of 36 - Page ID # 115