Case 2:14-cv-02518-DDC-TJJ Document 55 Filed 12/08/14 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION

KAIL MARIE, et al., )

)
Plaintiffs, )
)
v. )
) Case No. 14-cv-2518
ROBERT MOSER, M.D., in his official capaci- )
ty as Secretary of the Kansas Department of )
Health and Environment, et al., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY

INJUNCTION ON MARRIAGE RECOGNITION CLAIMS

Introduction

On November 4, 2014, this Court entered a preliminary injunction which enjoined De-

fendants Moser, Hamilton, and Lumbreras “from enforcing or applying Article 15, § 16 of the

Kansas Constitution and K.S.A. § 23-2501 and any other Kansas statute, law, policy, or practice

that prohibits issuance of a marriage license to same-sex couples.” Memorandum and Order,

2014 U.S. Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014), Doc. 29, p. 38. In so ruling, the Court

concluded that “plaintiffs have shown a strong likelihood that they will succeed in establishing

that Article 15, § 16 of the Kansas Constitution and K.S.A. § 23-2501 violate their rights guaran-

teed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Unit-

ed States Constitution.” Id. at 33. Significantly, the Court noted that Plaintiffs’ Complaint alleg-

es “that Kansas’ laws banning same-sex marriage are ones that are unconstitutional on their face

(as opposed to a claim challenging the way that Kansas has applied those laws to them),” and

“[i]f plaintiffs succeed in establishing no circumstances exist under which Kansas could apply its
 Case 2:14-cv-02518-DDC-TJJ Document 55 Filed 12/08/14 Page 2 of 15

same-sex marriage ban permissibly, the Court may invalidate the laws in their entirety.” Id. at

13.

The Court further found that the other pertinent factors in the preliminary injunction cal-

culus weighed in favor of granting a preliminary injunction on Plaintiffs’ marriage license

claims. Id., pp. 35-36. Although the District Court stayed its injunction for one week so that the

Defendants could seek a stay from a higher court, both the Tenth Circuit and the United States

Supreme Court denied the Defendants’ requests for a further stay. See Moser v. Marie, 190 L.

Ed. 2d 385, 83 U.S.L.W. 3304, 2014 U.S. LEXIS 7651 (Nov. 12, 2014). Thus, on November 12,

2014, the District Court’s preliminary injunction went into effect, and the Kansas district court

clerks in Douglas, Sedgwick, and many other Counties around the State began issuing marriage

licenses to same-sex couples. Phil Anderson, “Two Topeka pastors welcome same-sex marriag-

es: Court rulings will open the door to same-sex marriages in Topeka,” Topeka Capital-Journal

(Nov. 13, 2014), available at [Link]

same-sex-marriages (last checked Dec. 4, 2014).

Despite those events, however, various State agencies are continuing to refuse to rec-

ognize same-sex marriages based on the provisions of Article 15, § 16 of the Kansas Consti-

tution and K.S.A. § 23-2501 and other statutes, laws, policies, and practices. Thus, on No-

vember 26, 2014, Plaintiffs filed a First Amended Complaint, in which they added additional

Plaintiffs and Defendants in order to bring the non-recognition issue before the Court. Now,

Plaintiffs seek a further order of the Court enjoining Defendants Jordan, Kaspar, and Mi-

chael, in their official capacities – as well as any officers, agents, servants, employees, attor-

neys, other persons who are in active concert or participation with them – from continuing to

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enforce Article 15, § 16 of the Kansas Constitution and K.S.A. § 23-2501 and other statutes,

laws, policies, and practices prohibiting recognition of same-sex couples’ marriages.

Facts

The Recognition Plaintiffs

1. The newly added Plaintiffs are three same-sex couples (hereafter collectively re-

ferred to as “the Recognition Plaintiffs”) – James E. Peters and Gary A. Mohrman, Carrie L.

Fowler and Sarah C. Braun, and Darci Jo Bohnenblust and Colleen Hickman – who have mar-

ried in Iowa, Illinois, and Kansas, respectively. See Declaration of James E. Peters, ¶ 3; Declara-

tion of Carrie L. Fowler, ¶ 3; and Declaration of Darci Jo Bohnenblust, ¶ 4.

The State Income Tax Filing Status Claim against Defendant Jordan

2. Defendant Nick Jordan is the Secretary of the Kansas Department of Revenue

(hereafter “KDOR”). Defendant Jordan’s duties include directing and supervising Kansas’s Di-

vision of Taxation for Individuals. The KDOR’s Division of Taxation for Individuals is respon-

sible for issuing regulations and guidance on issues pertaining to income taxation, including is-

sues related to the filing status of same-sex married couples who file Kansas income tax returns.

3. On October 4, 2013, the KDORissued Notice 13-18, entitled “Guidance for Same-

Sex Couples.” That document provides in relevant part that “Kansas only recognizes marriages

between one woman and one man. (See Article 15, Section 16, of the Kansas Constitution.) Kan-

sas Statutes Annotated (K.S.A. 79-32,115) provide that a husband and wife shall file a joint or

married filing separate return for income tax purposes. Individuals of the same sex cannot file a

Kansas income tax return using a tax status of married filing jointly or married filing separately.”

Attached as Exhibit 1, available on KDOR’s website at

[Link] (last checked Dec. 4, 2014). Notice 13-18

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further provides that married same-sex couples must, instead, complete and file a special work-

sheet when they have filed their federal income tax return as “married.” Id.

4. Plaintiffs Peters and Mohrman filed their 2013 federal income tax returns as “mar-

ried, filing separately.” Peters Decl., ¶ 10. Because of the KDOR’s refusal to allow married

same-sex couples to file state income tax returns as “married filing jointly” or “married filing

separately,” Plaintiffs Peters and Mohrman had to prepare both married federal tax returns for

federal filing purposes and single federal tax returns in order to prepare state single tax returns.

Id., ¶ 11. The preparation of those multiple tax returns caused Plaintiffs Peters and Mohrman to

expend additional time and resources that would not be required of different-sex couples. Id.

They will face this same problem early in 2015, when preparing their income tax returns for cal-

endar year 2014. Many same-sex married couples in Kansas will face this same problem early in

2015.

The Drivers’ License Name Change Claim against Defendants Jordan & Kaspar

5. On information and belief, in his official capacity as the Secretary of KDOR, De-

fendant Jordan has ultimate managerial responsibility for the Division of Vehicles, which is a

Division of KDOR and is responsible for issuing drivers’ licenses to eligible Kansas residents

and for reissuing drivers’ licenses to spouses who change their last names as part of the marriage

licensing process.

6. On information and belief, Defendant Lisa Kaspar is the Director of the KDOR’s

Division of Vehicles, and Defendant Kaspar’s duties include directing and supervising the em-

ployees and agents of the Division of Vehicles who are responsible for issuing drivers’ licenses

to eligible Kansas residents and for reissuing drivers’ licenses to spouses who change their last

names as part of the marriage licensing process.

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7. On her marriage license, as permitted by Illinois law, Plaintiff Carrie L. Fowler

changed her last name from Fowler to Braun. Fowler Decl., ¶ 5. Moreover, on their marriage

license, as permitted by Kansas law, Plaintiffs Bohnenblust and Hickman designated new legal

last names for themselves. Bohnenblust Decl., ¶ 6. Plaintiff Bohnenblust designated Pottroff

(her last name at birth) as her new last name, and Plaintiff Hickman designated Spain (her last

name at birth) as her new last name. Id.

8. After changing their names as part of the marriage licensing process, Plaintiffs

Fowler, Bohnenblust, and Hickman were able to change their last names on their records at the

Social Security Administration and to obtain new Social Security cards listing their new last

names. Fowler Decl., ¶ 6; Bohnenblust Decl., ¶ 7.

9. After their marriages, Plaintiffs Fowler, Bohnenblust, and Hickman went to drivers’

license offices operated under the supervision of the Kansas Division of Vehicles, to attempt to

obtain new driver's licenses in their new last names. Fowler Decl., ¶ 7; Bohnenblust Decl., ¶ 8.

Clerks working at those offices told Plaintiffs Fowler, Bohnenblust, and Hickman that, because

their marriages are not recognized in Kansas, the Division of Vehicles would not issue them new

drivers’ licenses in their new married last names. Id.

10. After district court clerks in Kansas began issuing marriage licenses to same-sex

couples, Plaintiff Fowler called the Division of Vehicles’ office in Lawrence to see if she would

be able to get a new license in her married name, but the staff person who answered the tele-

phone stated that, even though some district court clerks were issuing marriage licenses to same-

sex couples, the Division of Vehicles does not recognize same-sex marriages. Fowler Decl., ¶ 8.

Plaintiff Fowler then called the Division of Vehicles’ Driver’s Licensing telephone number in

Topeka, Kansas, and was told that the Division had been instructed to follow the Kansas Consti-

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tution and not to recognize same-sex marriages, including the marriage of Plaintiffs Fowler and

Braun. Id. The refusal to issue new driver's licenses has broader implications for same-sex mar-

ried couples, with respect to tracking and verifying their driving records and automobile insur-

ance coverage.

The State Employee Spousal Health Insurance Claim against Defendant Michael

11. On information and belief, Defendant Mike Michael is the Director of the Kansas

State Employee Health Plan (“KSEHP”), through which all state employees may obtain health

insurance for themselves, their spouses, and their other dependents, and in that position Defend-

ant Michael is responsible for implementing and administering the terms of the KSEHP and for

advising staff of various state employer institutions and agencies regarding the terms and bene-

fits of the KSEHP.

12. The KSEHP provides participants with a booklet that explains the benefits and cov-

erage of the Plan. Peters Decl., ¶ 6. The booklet for the current Plan year is entitled “State Em-

ployee Benefits Guidebook – Plan Year 2015,” and it was issued in October 2014. Id. In a sec-

tion entitled “Other Eligible Individuals Under the SEHP,” the Guidebook explains that the

KSEHP provides dependent coverage for “[y]our lawful wife or husband, referred to as ‘spouse’

throughout the rest of this guidebook. (Same gender marriages are not recognized under Kansas

Law).” Peters’ Decl., ¶ 6 & Decl. Ex. 1(copy of page 9 of the Guidebook, attached to Peters

Decl.).

13. Plaintiffs Peters and Bohnenblust are employed by the state universities in Kansas

and are thus employees of the State of Kansas. Peters Decl., ¶ 5; Bohnenblust Decl., ¶ 9. As

state employees, Plaintiffs Peters and Bohnenblust are eligible for health insurance provided

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through the KSEHP, and they both participate in the KSEHP for their health insurance coverage.

Id.

14. In November 2014, Plaintiffs Peters and Bohnenblust went to the human resources

departments of their respective state employers and asked to add their spouses (Plaintiff

Mohrman and Plaintiff Hickman, respectively) to their health insurance coverage as “spouses.”

Peters Decl., ¶ 7; Bohnenblust Decl., ¶ 10.

15. The human resources representative told Plaintiff Peters that – pursuant to a di-

rective from Defendant Michael – Plaintiff Mohrman could not be added as a dependent spouse

because the State of Kansas does not recognize same-sex marriages. – The human resources rep-

resentative then declined the request of Plaintiff Peters to add his husband, Plaintiff Mohrman, as

a dependent spouse under the KSEHP. Peters Decl., ¶ 7.

16. On November 22, 2014, Plaintiff Bohnenblust sent an e-mail to the human re-

sources office at her employer, Kansas State University, in which she requested to add her wife,

Plaintiff Hickman, as a dependent on the KSEHP, the health insurance policy that covers Plain-

tiff Bohnenblust. Bohnenblust Decl., ¶ 10. In an e-mail dated November 24, 2014, a human re-

sources representative told Plaintiff Bohnenblust that she could not add her spouse as a depend-

ent on her health care benefits because Defendant Michael had advised Kansas State University

that “same gender couples will remain ineligible” for spousal health care benefits under the

KSEHP because Kansas law does not recognize same-sex marriages. Id. Plaintiff Bohnenblust

was thus unable to add her spouse, Plaintiff Hickman, as a dependent spouse under the KSEHP.

Id.

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Argument

The Recognition Plaintiffs now seek a preliminary injunction prohibting Defendants Jor-

dan, Kaspar, and Michael, in their official capacities– as well as any officers, agents, servants,

employees, attorneys, other persons who are in active concert or participation with any these De-

fendants – from continuing to enforce Article 15, § 16 of the Kansas Constitution and K.S.A. §

23-2501 and other statutes, laws, policies, and practices prohibiting same-sex couples from mar-

rying or denying recognition to their marriages and , requiring them to treat same-sex married

people the same as any other married persons including – by way of illustration and without limi-

tation – for purposes of filing individual state income tax returns, obtaining new driver's licenses

in names changed as a result of the marriage licensing process, and adding same-sex spouses to

state-employee health insurance coverage under the KSEHP.

A movant is entitled to a preliminary injunction if the movant can establish the following:

(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the mo-

vant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the

injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to

the public interest. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). For injunctions seek-

ing mandatory relief, the movant must make a “strong showing” with regard to the likelihood of

success on the merits and with regard to the balance of harms. Id. In light of binding precedent

from Kitchen and Bishop, Plaintiffs easily meet these requirements.

I. Plaintiffs Have Made a Strong Showing They Are Substantially Likely To Succeed On The
Merits.

As the Court concluded with regard to the refusal to issue marriage licenses to same-sex

couples, “plaintiffs have shown a strong likelihood that they will succeed in establishing that Ar-

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ticle 15, § 16 of the Kansas Constitution and K.S.A. § 23-2501 violate their rights guaranteed by

the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States

Constitution.” Id. at 33. The same is true with regard to the recognition claims.

Under binding Tenth Circuit precedent: “A state may not deny the issuance of a marriage

license to two persons, or refuse to recognize their marriage, based solely upon the sex of the

persons in the marriage union.” Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.) (emphasis

added), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014). In Kitchen the Tenth Circuit square-

ly held that the fundamental right to marry necessarily includes the right to have one’s marriage

recognized. Id. at 1213.

As this Court previously recognized, “Kansas’ same-sex marriage ban does not differ in

any meaningful respect from the Utah . . . laws the Tenth Circuit found unconstitutional,” and

“[b]ecause Tenth Circuit precedent is binding on this Court, Kitchen . . . dictate[s] the result

here.” Memorandum and Order, 2014 2014 U.S. Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014),

Doc. 29, p. 33. See United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10thCir. 1990) (“A dis-

trict court must follow the precedent of this circuit”); Phillips v. Moore, 164 F. Supp. 2d 1245,

1258 (D. Kan. 2001) (“The [district] court, of course, is bound by circuit precedent”) (citing

Spedalieri).

Moreover, as this Court noted in its earlier decision, Plaintiffs have made a strong show-

ing that the challenged provisions are not merely unconstitutional as applied to them, but uncon-

stitutional in all their applications:

The Court construes plaintiffs’ Complaint to allege that Kansas' laws banning
same-sex marriage are ones that are unconstitutional on their face (as opposed to a
claim challenging the way that Kansas has applied those laws to them). A claim is
a facial challenge when “it is not limited to plaintiffs’ particular case, but chal-
lenges application of the law more broadly.” John Doe No. 1 v. Reed, 561 U.S.
186, 194, 130 [Link]. 2811, 177 [Link].2d 493 (2010). If plaintiffs succeed in estab-
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lishing no circumstances exist under which Kansas could apply its same-sex mar-
riage ban permissibly, the Court may invalidate the laws in their entirety, includ-
ing their application to male, same-sex couples. Doe v. City of Albuquerque, 667
F.3d 1111, 1127 (10th Cir.2012) (“[A] successful facial attack means the statute is
wholly invalid and cannot be applied to anyone.”) (quoting Ezell v. City of Chica-
go, 651 F.3d 684, 698–99 (7th Cir.2011))

Memorandum and Order, 2014 2014 U.S. Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014), Doc. 29,

pp. 12-13.

II. Plaintiffs Will Suffer Irreparable Harm If A Preliminary Injunction Does Not Issue.

There is no question that Plaintiffs suffer irreparable harm every day that Kansas’s un-

constitutional marriage recognition bans remain in force. 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, 670 F.3d at 1131 (“Furthermore, when an alleged con-

stitutional right is involved, most courts hold that no further showing of irreparable injury is nec-

essary.”) (citation omitted); Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (“[W]hen re-

viewing 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.”); Quinly v. City of Prairie

Village, 446 [Link].2d 1233, 1237-38 (D. Kan. 2006) (same).

Kansas’s treatment of Recognition Plaintiffs’ relationships as lesser than the relationships

of opposite-sex couples whose marriages are recognized stigmatizes and demeans the marriages

of the Recognition Plaintiffs and all other married same-sex couples in Kansas, causes them anx-

iety and stress, and harms their dignity as individuals and as couples. As recognized by the

Tenth Circuit, laws that treat same-sex couples as lesser than opposite-sex couples for purposes

of marriage recognition “impose[] a disadvantage, a separate status, and so a stigma upon all

who enter into same-sex marriages.” Kitchen, 755 F.3d at 1207 (quoting Windsor, 133 S. Ct. at

10
 Case 2:14-cv-02518-DDC-TJJ Document 55 Filed 12/08/14 Page 11 of 15

2963). Laws that discriminate against same-sex couples undermine “both the public and private

significance” of same-sex couples’ relationships by telling those couples, and all the world, that

their marriages are unworthy of recognition. Kitchen, 755 F.3d at 1207 (quoting Windsor, 133 S.

Ct. at 2964). Such laws “‘humiliate[] . . . children now being raised by same-sex couples’ by

making ‘it even more 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.’”

Kitchen, 755 F.3d at 1207 (quoting Windsor, 133 S. Ct. at 2964). With the passage of each day,

these harms accumulate.

The harms to Plaintiffs’ dignity that result from being deprived of state recognition of this

most important relation should be considered particularly irreparable because monetary damages

cannot adequately compensate for such harms. See Awad, 670 F.3d at 1131; Prairie Band of

Potawatomi Indians v. Pierce, 253 F.3d 1234, 1251 (10th Cir. 2001). “[D]iscrimination itself, by

perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored

group as ‘innately inferior’ and therefore as less worthy participants in the political community,

can cause serious non-economic injuries to those persons who are personally denied equal treat-

ment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S.

728, 739-740 (1984);

Moreover, even financial harms caused by the exclusion of same-sex spouses from

KSEHP are irreparable because the Eleventh Amendment protects Kansas and any State officials

in their official capacity from liability for damages. See Edelman v. Jordan, 415 U.S. 651

(1974). The legal protection to Plaintiffs and other families of Kansas State employees is an in-

junction to prevent further harm from accruing.

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III. The Harm To Plaintiffs Substantially Outweighs Any Harm To The Defendants.

As this Court held regarding the marriage license issue, “Tenth Circuit precedent requires

the Court to conclude that the balance of harm analysis favors injunctive relief.” Doc. 29, p. 36.

The same is true with regard to the marriage recognition claims.

IV. Injunctive Relief Is In The Public Interest.

In its decision on the marriage license issue, this Court concluded that “the public interest

favors protecting plaintiffs’ constitutional rights by enjoining Kansas’ plainly unconstitutional

provisions.” Doc. 29, p. 36. The Kansas ban on recognition of same-sex marriages performed in

Kansas and elsewhere is plainly unconstitutional. Thus, injunctive relief to block enforcement of

the recognition bans would serve the public interest.

Injunctive relief is particularly necessary to dispel any confusion caused by the actions of

Kansas officials in attempting to limit the effect of this Court’s earlier ruling. For example, even

though the Tenth Circuit held that none of the plaintiffs in Bishop had standing to challenge Ok-

lahoma’s recognition ban, Oklahoma officials now recognize as valid same-sex marriages per-

formed in Oklahoma and elsewhere in light of the Tenth Circuit precedent in Kitchen. See eCap-

itol & Shawn Ashley, State Begins Offering Benefits To Same-Sex Couples, KGOU (Oct. 9,

2014), available online at [Link]

Oklahoma’s approach stands in sharp contrast to the refusal of Kansas’ government officials to

apply this Court’s earlier ruling in the recognition context. See “Kansas Agencies Not Recogniz-

ing Gay Marriages Yet,” Lawrence Journal-World (Nov. 20, 2014), available on-line at

[Link]

yet/.

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It is in the public interest for the Court to make clear that Kansas State officials must

cease enforcing the State’s marriage bans in any and all contexts.

CONCLUSION

Plaintiffs are overwhelmingly likely to succeed on the merits of their constitutional

claims and are suffering significant and irreparable harm every day that Kansas refuses to recog-

nize the marriages of same-sex married couples. The balance of equities strongly favors an in-

junction, and an injunction is in the public interest. Accordingly, Plaintiffs respectfully request

that the Court issue a preliminary injunction:

(1) enjoining Defendants Nick Jordan, Lisa Kaspar, and Mike Michael, in their official capacities

– as well as all officers, agents, servants, employees, attorneys, other persons who are in active

concert or participation with them – from enforcing article 15, section 16 of the Kansas Constitu-

tion, Kansas Statutes Annotated §§ 23-2501 and 23-2508, and any other sources of state law to

refuse recognition of the marriages of same-sex couples whether performed in Kansas or else-

where, and (2) requiring Defendants Nick Jordan, Lisa Kaspar, and Mike Michael, in their offi-

cial capacities – as well as all officers, agents, servants, employees, attorneys, other persons who

are in active concert or participation with them – to treat same-sex married people the same as

any other married persons including:

(a) requiring Defendant Jordan, in his official capacity – and all officers, agents, servants,

employees, attorneys, other persons who are in active concert or participation with him

– to recognize marriages validly entered into in Kansas and elsewhere by same-sex

couples for purposes of filing individual state income tax returns in a “married” status;

(b) requiring Defendants Jordan and Kasper in their official capacities – and all officers,

agents, servants, employees, attorneys, other persons who are in active concert or par-

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 Case 2:14-cv-02518-DDC-TJJ Document 55 Filed 12/08/14 Page 14 of 15

ticipation with them – to recognize marriages validly entered into in Kansas and else-

where by same-sex couples for purposes of issuing new drivers’ licenses to married

same-sex spouses who change their names as part of the marriage licensure process;

and

(c) requiring Defendant Michael in his official capacity – and all officers, agents, servants,

employees, attorneys, other persons who are in active concert or participation with him

– to recognize marriages validly entered into in Kansas and elsewhere by same-sex

couples for purposes of allowing employees covered by the Kansas State Employees

Health Plan (“KSEHP”) to add their same-sex spouses as dependents covered by the

KSEHP.

Plaintiffs request such injunction remain in effect until entry of final judgment in this ac-

tion.

Respectfully submitted,

/s/ Stephen Douglas Bonney

Stephen Douglas Bonney, KS Bar No. 12322
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
Tel. (816) 994-3311 Fax: (816) 756-0136
dbonney@[Link]

Mark P. Johnson, KS Bar #22289

Dentons US, LLP
4520 Main Street, Suite 1100
Kansas City, MO 64111
816/460-2400
816/531-7545 (fax)
[Link]@[Link]

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 Case 2:14-cv-02518-DDC-TJJ Document 55 Filed 12/08/14 Page 15 of 15

Joshua A. Block [admitted pro hac vice]

ACLU FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2593
jblock@[Link]

ATTORNEYS FOR PLAINTIFFS

Certificate of Service

I certify that, on December 8, 2014, the foregoing document was served on counsel for
Defendants Moser, Hamilton, and Lumbreras by e-mail through the Court’s ECF system, and
First Class Mail, postage prepaid, on the following:

Nick Jordan, Secretary of Dept. of Revenue

Docking State Office Building
915 S.W. Harrison Street, 2nd Floor
Topeka, KS 66612

Lisa Kaspar, Director

Dept. of Revenue, Division of Vehicles
915 S.W. Harrison Street
Topeka, KS 66612

Mike Michael, Director

State Employee Health Plan
Curtis State Office Building
1000 S.W. Jackson
Topeka, Kansas 66612

/s/ Stephen Douglas Bonney

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 Case 2:14-cv-02518-DDC-TJJ Document 55-1 Filed 12/08/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION

KAIL MARIE, et al., )

)
Plaintiffs, )
)
v. )
) Case No. 14-cv-2518
ROBERT MOSER, M.D., in his official )
capacity as Secretary of the Kansas Department )
of Health and Environment, et al., )
)
Defendants. )

DECLARATION OF CARRIE L. FOWLER (BRAUN)

1. I, Carrie L. Fowler (Braun), am one of the Plaintiffs in this action. I have

personal knowledge of the matters stated in this Declaration and could and would competently

testify to these facts.

2. I currently live in McLouth, Kansas, which is in Jefferson County. I live there

with my wife and co-plaintiff, Sarah C. Braun, with whom I have been in a committed, loving

relationship for more than two years.

3. Sarah and I obtained a marriage license in Cook County, Illinois, and married each

other in a ceremony performed in Chicago, Illinois, on June 7, 2014.

4. Except for the fact that Sarah and I are both women, we meet all of the

qualifications to have our marriage recognized in Kansas.

5. On our marriage license, as permitted by Illinois law, I changed my last name

from Fowler to Braun.

 Case 2:14-cv-02518-DDC-TJJ Document 55-1 Filed 12/08/14 Page 2 of 2

6. After getting married in Illinois on June 7, 2014, I was able to change my last

name from Fowler to Braun on my records at the Social Security Administration and to obtain a

new Social Security card listing my last name as Braun.

7. In July 2014, Sarah and I went to the Division of Vehicles’ drivers’ license office

in Lawrence, Kansas, to attempt to obtain a new driver’s license for me in my married name of

Braun. After waiting for over an hour, a clerk told us that our marriage was not recognized and

that the Division of Vehicles would not issue me a new license in my married name.

8. After district court clerks in Kansas began issuing marriage licenses to same-sex

couples, I called the Division of Vehicles office in Lawrence to see if I would be able to get a

new license in my married name, but the staff person who answered the telephone stated that,

even though some district court clerks were issuing marriage licenses to same-sex couples, the

Division of Vehicles still does not recognize same-sex marriages. I then called the telephone

number for the Division of Vehicles’ Driver’s Licensing office in Topeka, Kansas, and was told

that the Division of Vehicles had been instructed to follow the Kansas Constitution and not to

recognize same-sex marriages, including my marriage to Plaintiff Braun.

I declare under penalty of perjury that the foregoing statements, including all statements

in this Declaration, are true and correct.

Executed on December 4, 2014. /s/ Carrie L. Fowler (Braun)____

Carrie L. Fowler (Braun)

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 Case 2:14-cv-02518-DDC-TJJ Document 55-2 Filed 12/08/14 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION

KAIL MARIE, et al., )

)
Plaintiffs, )
)
v. )
) Case No. 14-cv-2518
ROBERT MOSER, M.D., in his official )
capacity as Secretary of the Kansas Department )
of Health and Environment, et al., )
)
Defendants. )

DECLARATION OF DARCI JO BOHNENBLUST

1. I, Darci Jo Bohnenblust, am one of the Plaintiffs in this action. I have personal

knowledge of the matters stated in this Declaration and could and would competently testify to

these facts.

2. I currently live in the City of Riley, Kansas, which is in Riley County. I live there

with my wife and co-plaintiff, Joleen M. Hickman, with whom I have been in a committed,

loving relationship for more than nineteen years.

3. On October 9, 2014, Joleen and I applied for a marriage license from the Riley

County District Court, but that application was denied in an Administrative Order signed by

Chief Judge Meryl D. Wilson.

4. On November 13, 2014, Joleen and I obtained a marriage license from the Riley

County District Court and married each other the same day in a ceremony performed in Riley

County, Kansas. We married one day after the District Court’s preliminary injunction in this case

went into effect.

 Case 2:14-cv-02518-DDC-TJJ Document 55-2 Filed 12/08/14 Page 2 of 3

5. Except for the fact that Joleen and I are both women, we meet all of the

qualifications for having our marriage recognized in Kansas.

6. On our marriage license, as permitted by Kansas law, I changed my last name

from Bohnenblust to Pottroff (my last name at birth), and Joleen changed her last name from

Hickman to Spain (her last name at birth).

7. After getting married on November 13, 2014, Joleen and I were able to change

our last names on our records at the Social Security Administration and to obtain new Social

Security cards with our new last names.

8. After getting married, Joleen and I went to a local office of the Kansas Division of

Vehicles, a division of the Kansas Department of Revenue, presented a certified copy of our

marriage license issued by the Riley County District Court, and requested that the Kansas

Division of Vehicles issue new drivers’ licenses to each of us in our new last names as shown on

the certified copy of our marriage license. The Kansas Division of Vehicles refused to issue us

new drivers’ licenses because, according to the clerk with whom we interacted, the State of

Kansas does not recognize same-sex marriages.

9. I am employed by Kansas State University in Manhattan, Kansas. Among other

employee benefits that come with my job, I am eligible for health insurance provided through the

Kansas State Employees Health Plan (“KSEHP”). I am a participant in the KSEHP, which

provides for dependent coverage including coverage of a “spouse.” But the Plan specifically

excludes same-sex spouses from eligibility for dependent spousal health insurance benefits.

10. On November 22, 2014, I sent an e-mail to Human Resources at Kansas State

University requesting to add my spouse, Plaintiff Hickman, as a dependent on the health

insurance policy that covers me. In an e-mail dated November 24, 2013, a Human Resources

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 Case 2:14-cv-02518-DDC-TJJ Document 55-2 Filed 12/08/14 Page 3 of 3

representative told me that she could not add my spouse as a dependent on my health care

benefits because Defendant Michael had advised Kansas State University that “same gender

couples will remain ineligible” for spousal health care benefits under the KSEHP because

Kansas law does not recognize same-sex marriages. For that reason, I was unable to add my

wife, Plaintiff Hickman, as a dependent spouse under the KSEHP.

I declare under penalty of perjury that the foregoing statements, including all statements

in this Declaration, are true and correct.

Executed on December 5, 2014. /s/ Darci Jo Bohnenblust ________

Darci Jo Bohnenblust

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 Case 2:14-cv-02518-DDC-TJJ Document 55-3 Filed 12/08/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION

KAIL MARIE, et al., )

)
Plaintiffs, )
)
v. )
) Case No. 14-cv-2518
ROBERT MOSER, M.D., in his official )
capacity as Secretary of the Kansas Department )
of Health and Environment, et al., )
)
Defendants. )

DECLARATION OF JAMES E. PETERS

1. I, James E. Peters, am one of the Plaintiffs in this action. I have personal

knowledge of the matters stated in this Declaration and could and would competently testify to

these facts.

2. I currently live in Lawrence, Kansas, which is in Douglas County. I live there

with my husband and co-plaintiff, Gary A. Mohrman, with whom I have been in a committed,

loving relationship for thirty-four years.

3. Gary Mohrman and I obtained a marriage license in Dubuque County, Iowa, and

married each other in a ceremony performed in Dubuque, Iowa, on July 31, 2010.

4. Except for the fact that Gary and I are both men, we meet all of the qualifications

to have our marriage recognized in Kansas.

5. I am currently employed by the University of Kansas in Lawrence, Kansas, as the

Director of the Osher Lifelong Learning Institute. Among other employee benefits that come

with my job, I am eligible for health insurance provided through the Kansas State Employee

Health Plan (“KSEHP”). I am a participant in the KSEHP.

 Case 2:14-cv-02518-DDC-TJJ Document 55-3 Filed 12/08/14 Page 2 of 4

6. The KSEHP provides participants with a booklet that explains the benefits and

coverage of the Plan. The booklet for the current Plan year is entitled “State Employee Benefits

Guidebook – Plan Year 2015,” and it was issued in October 2014. In a section entitled “Other

Eligible Individuals Under the SEHP,” the Guidebook explains that the KSEHP provides for

dependent coverage for “[y]our lawful wife or husband, referred to as ‘spouse’ throughout the

rest of this guidebook. (Same gender marriages are not recognized under Kansas Law).” I have

attached a copy of page 9 of the Guidebook to this Declaration and have marked it as Exhibit1.

7. On November 16, 2014, I went to Human Resources at the University of Kansas

and completed paperwork to add my husband, Plaintiff Mohrman, as a dependent spouse through

KSEHP. The Human Resources representative told me that – pursuant to a directive from

Defendant Michael – Plaintiff Mohrman could not be added as a dependent spouse because the

State of Kansas does not recognize same-sex marriages. For that reason, I was unable to add my

husband, Plaintiff Mohrman, as a dependent spouse under KSEHP.

8. The Kansas Department of Revenue (“KDOR”) refused to allow same-sex

couples who married in other states to file their state individual income tax returns for tax year

2013 as “married.”

9. The Internal Revenue Service permits married same-sex couples to file their

federal individual income tax returns as “married” if they were married in a state in which same-

sex marriage is legal even if they live in a state – like Kansas – that refuses to recognize such

marriages.

10. Plaintiff Mohrman and I filed our 2013 federal income tax returns as “married,

filing separately.”

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11. Because of the KDOR’s refusal to allow married same-sex couples to file state

income tax returns as “married filing jointly” or “married filing separately,” Plaintiff Mohrman

and I had to prepare both married federal tax returns for federal filing purposes and single federal

tax returns in order to prepare state single tax returns. The preparation of those multiple tax

returns caused us to expend additional time and resources that would not be required of different-

sex couples.

I declare under penalty of perjury that the foregoing statements, including all statements

in this Declaration, are true and correct.

Executed on December 4, 2014. /s/ James E. Peters________

James E. Peters

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OTHER ELIGIBLE INDIVIDUALS UNDER THE SEHP

In addition to covering yourself, you may also elect coverage for other eligible individuals of your family. These
eligible individuals include:

1. Your lawful wife or husband, referred to as “spouse” throughout the rest of this guidebook (Same
gender marriages are not recognized under Kansas Law).

2. Any of your eligible dependent child(ren) also referred to as “dependent(s)” throughout the rest of
this guidebook.

If you divorce, coverage for your former spouse and stepchild(ren) ends on the last day of the month of the
date your divorce is filed. If the date of your divorce is the first day of the month, coverage for your former
spouse and stepchild(ren) ends on the first day of that month.

Other Eligible Individuals Important Information:

A. If you are eligible to enroll as a primary member in the SEHP, you are not eligible to be enrolled
as spouse or dependent of another primary member in the SEHP.

B. An eligible dependent that is enrolled by one primary member is not eligible to be enrolled as a
dependent by another primary member.

C. “Other eligible individual” excludes any individual who is not a citizen or national of the United
States, unless the individual is a resident of the United States or a country contiguous to the
United States, is a member of a primary member’s household, and resides with the primary
member for more than six months of the calendar year. The dependent shall be considered to
reside with the primary member even when the dependent is temporarily absent due to special
circumstances, including illness, education, business, vacation, and military service.

D. “Permanent and total disability” means that an individual is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or has lasted or can be expected to last for a continuous period of
at least 12 months. An individual shall not be considered to have permanent and total disability
unless the individual furnishes proof of the permanent and total disability in the form and
manner, and at the times, the SEHP may require.

E. The word "child" means:

1) Your natural son or daughter
2) Your lawfully adopted son or daughter. Lawfully adopted will include those instances
in which a primary member has filed a petition for adoption with the court, has a
placement agreement for adoption or has been granted legal custody.
3) Your stepchild. If the natural or adoptive parent of the stepchild is divorced from you,
the child no longer qualifies as your stepchild, and is no longer eligible for coverage.
4) A child of whom you as the primary member has legal custody. Legal custody ends
once the child reaches the age of 18.
5) Your grandchild, if at least one of the following conditions is met:
I. You have legal custody of your grandchild or have lawfully adopted your
grandchild
II. The grandchild lives in the your home and is the child of your covered eligible
dependent child and you provide more than 50% of the support of your
grandchild; or
III. The grandchild is the child of your covered eligible dependent child and is
considered to reside with you even when your grandchild or your eligible
dependent child is temporarily absent due to special circumstances including

State Employee Health Plan

State Employee Benefits Guidebook – Plan Year 2015 (New - 10/14)
Page 9
Peters Declaration, Exhibit 1
 Case 2:14-cv-02518-DDC-TJJ Document 55-4 Filed 12/08/14 Page 1 of 2

Policy & Research Phone: 785-296-3081

915 SW Harrison St FAX: 785-296-7928
Topeka KS 66612-1588 [Link]
Nick Jordan, Secretary Department of Revenue Sam Brownback, Governor
Richard Cram, Director

NOTICE 13-18

GUIDANCE FOR SAME-SEX COUPLES

(October 4, 2013)

Federal Tax Treatment

For federal tax purposes, Rev. Rul. 2013-17 provides that the Internal Revenue Service
(IRS) will recognize a marriage of same-sex individuals that was validly entered into in a state
whose laws authorize such a union. This applies even if the couple is domiciled in a state that
does not recognize the validity of same-sex marriages.

As a result, for tax year 2013 and going forward, same-sex spouses generally must file their
federal income tax returns using a filing status of married filing jointly or married filing
separately.

Kansas Income Tax Treatment

Kansas only recognizes marriages between one woman and one man. (See Article 15,
Section 16, of the Kansas Constitution.) Kansas Statutes Annotated (K.S.A. 79-32,115) provide
that a husband and wife shall file a joint or married filing separate return for income tax
purposes. Individuals of the same sex cannot file a Kansas income tax return using a tax status
of married filing jointly or married filing separately.

In the case of same-sex individuals who are considered married for federal income tax
purposes:

 As has been the practice since the initiation of the Kansas income tax, each individual
must file a separate Kansas income tax return on Form K-40, using the filing status of
single or, if qualified, head of household.

 Same-sex individuals who file a joint federal income tax return must complete a
worksheet that will be available at [Link] to show the amount of income
as reported on the joint federal return that is allocable to each individual, and
determines the federal adjusted gross income to be used by each individual for
Kansas tax purposes.

The above guidance applies to returns filed for tax year 2013 and going forward.

Plaintiffs' Exhibit 1
 Case 2:14-cv-02518-DDC-TJJ Document 55-4 Filed 12/08/14 Page 2 of 2

Although Rev. Rul. 2013-17 provides that under certain circumstances amended returns for
prior tax years may be filed for federal tax purposes to change the filing status to married filing
jointly or married filing separately, no such amended returns may be filed for Kansas to change
the filing status.

Returns can be filed electronically through [Link], or, if it is available, through

commercial tax preparation software. Returns can be filed on paper, although the Department of
Revenue prefers that returns be filed electronically.

Taxpayer Assistance

Additional copies of this notice, forms or publications are available from our web site,
[Link]. If you have questions about income tax, please contact:

Taxpayer Assistance Center

Kansas Department of Revenue
915 SW Harrison St., 1st Floor
Topeka, KS 66612-1588
Phone: 785-368-8222
Hearing Impaired TTY: 785-296-6461
Fax: 785-291-3614

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Plaintiffs' Exhibit 1