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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 KALLSTROM-

)

SCHRECKENGOST and KATHLEEN )

KALLSTROM-SCHRECKENGOST,

)

MARJORIE PLUMB and TRACY WEITZ,)

and RANDALL CLARK and THOMAS )

MADDOX,

)

)

Plaintiffs,

)

)

v.

)

)

DAVE HEINEMAN in his official

)

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. COMPLAINT

INTRODUCTION 1. Plaintiffs are loving, committed same-sex couples who seek to marry in Nebraska or already are married, having wed in another state, but are treated as legal strangers in Nebraska. They bring this action pursuant to 42 USC §1983 seeking declaratory and injunctive relief for the violation of their rights under the Fourteenth Amendment to the United States Constitution caused by Nebraska‘s exclusion of same-sex couples from marrying and its prohibition against recognizing the marriages of same-sex couples validly entered into in other jurisdictions. Neb. Const. art. I, § 29.

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2. The plaintiff couples, like other committed couples, have cared for each other, supported each other, sacrificed for each other, and made plans for the future with each other. Some have endured great challenges and hardships together, such as serious illness. Some are raising children together. Like other couples who have made a lifetime commitment to each other, the plaintiff couples are spouses in every sense, except that Nebraska says they cannot marry and, if they have married in other states, their marriages are not honored here. 3. Nebraska‘s exclusion of same-sex couples from marriage adversely impacts the plaintiffs and other same-sex couples across the state in significant ways. It denies samesex couples and their families the numerous legal protections afforded to married couples. For example, when one partner or spouse dies, the survivor may face serious financial hardship, including the loss of her home, because she is denied the inheritance tax exemption and homestead protection provided to different-sex widows. Public employees with same-sex spouses and partners are denied spousal health insurance and pension benefits. And for lesbian and gay couples with children, the exclusion from marriage profoundly impacts their families by denying their children the security of having a legal relationship with both of their parents, depriving them of critical resources and leaving them vulnerable in the event their legal parent dies or becomes incapacitated. 4. In addition to significant tangible harms, Nebraska‘s exclusion of same-sex couples from marriage stigmatizes lesbian and gay couples and their children by denying them ―a dignity and status of immense import.‖ United States v. Windsor, 133 S.Ct. 2675, 2692 (2013). The exclusion ―tells [same-sex] couples, and all the world,‖ that their relationships are ―unworthy‖ of recognition. Id. at 2694. And it ―humilates the . . .
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children now being raised by same-sex couples‖ and ―makes 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.‖ Id. 5. Nebraska‘s exclusion of same-sex couples from marriage is unconstitutional. ―[N]o legitimate purpose overcomes [its] purpose and effect to disparage and to injure‖ lesbian and gay couples and their families. Id. at 2696. 6. Thirty-three states and Washington, D.C., have now ended their discriminatory exclusion of same-sex couples from the revered institution of marriage, many as a result of the growing judicial consensus that such discrimination cannot stand after the Supreme Court‘s decision in Windsor. Without intervention by the Court, lesbian and gay couples in Nebraska will continue to be denied the respect and critical protections that only marriage provides. 7. Accordingly, the plaintiffs seek declaratory and injunctive relief on the grounds that Nebraska‘s exclusion of same-sex couples from marriage and refusal to recognize the valid marriages of same-sex couples from other jurisdictions and defendants enforcement of the marriage exclusion violates the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
PLAINTIFFS Sally and Susan Waters 8. Sally and Susan Waters have been in a committed relationship for over 15 years. They had a religious wedding in 1998 at their church in Omaha and got married on September 19, 2008, in California, where they were living at the time.
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9. Sally, 58, and Susan, 53, were both born and raised in Nebraska, Sally in Omaha and Susan in Burwell. They moved to California in 2002 after adopting their first child, G.W. (now 13). They left Nebraska because they could not both be legally recognized parents of their 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. Sally and Susan feared that the lack of a legal tie to one of her parents put their daughter at risk in the event something happened to her legal parent, so they moved to a state where they were able to provide her with the security of two legal parents by doing a second parent adoption. 10. A few years later, Sally and Susan expanded their family, welcoming their second child, J.W., now 10, whom they jointly adopted out of foster care in California. 11. In 2010, Sally and Susan moved their family back to Nebraska. They missed their families and wanted to be closer to their aging parents. Their return to Nebraska was joyful and the family quickly got back into community life, including their church, North Side Christian Church, where they are active members. 12. Susan works at the University of Nebraska Omaha helping faculty use technology in the classroom. Sally is a leadership development consultant at Mutual of Omaha. 13. In 2011, Sally and Susan welcomed into their family a teenager, K.J., now 18, for whom they are legal guardians. 14. In January 2013, Sally was diagnosed with stage III breast cancer. She has undergone surgery, chemotherapy and radiation. The treatment took a toll on Sally physically and she had to stop working for several months as a result. Susan has been by Sally‘s side throughout the grueling treatment, taking leave from work to care for her and
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to manage their home and family during hospitalizations that resulted from Sally‘s poor response to chemotherapy. The loss of Sally‘s income took a significant toll on the family‘s finances, as did the medical bills. 15. By April 2014, Sally‘s cancer had spread to her spine and was diagnosed as stage IV metastatic breast cancer. She is under treatment again both to slow the tumor growth and to deal with the debilitating pain. She and Susan have been taking steps to get Sally‘s affairs in order, as her future is very uncertain. The fact that their marriage is not recognized in their home state adds to the already excruciating pain and stress of facing a terminal illness. While they have hired lawyers to draw up wills, powers of attorney, and living wills, Sally and Susan worry that if they don‘t have the documents readily at hand during a medical emergency, Susan will not be able to make medical decisions for Sally if that becomes necessary, get information about her condition from doctors, or even be by her side in the hospital. 16. Sally and Susan are also anxious about how Susan will manage to support the family after Sally passes away. They worry about the fact that Susan will have to pay an 18% inheritance tax on half of the property they share, including the home they 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, they don‘t know if Susan and the kids will be able to remain in their home. In addition, when Susan reaches retirement age, she will not be entitled to Sally‘s social security since her home state does not recognize their marriage. Furthermore, as beneficiary of Sally‘s 401k, but not recognized as her spouse, Susan will not be allowed to roll the money into her own IRA and will have to pay taxes on it right away.
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17. Because their marriage is not recognized under Nebraska law, when Sally passes away, her death certificate will not reflect her marriage to Susan and, instead, will list her marital status as ―single‖ and leave blank the space for surviving spouse. No widow should have to suffer this indignity in her time of grief. 18. Sally and Susan jointly file their federal income taxes as married filing jointly. They would like to file their 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 their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them. Nickolas Kramer and Jason Cadek 19. Nickolas Kramer and Jason Cadek have been in a committed relationship for over ten years. They were married on October 12, 2013 in Iowa. They live in Omaha, where Nick, 42, is a management consultant and Jason, 37, is a compliance auditor for a bank. Jason grew up in North Loup, Nebraska and has extended family there. 20. In 2011, Nick and Jason became 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 their marriage is not recognized in Nebraska, A.C.-K. could only be adopted by one of her two parents. As a result, Jason, who the child knows as ―Daddy‖, has no legal ties to her. 21. The lack of a legal parent-child relationship with Jason denies A.C.-K. important protections and economic resources and creates profound stress and insecurity for the family. For example, Nick and Jason worry about Jason not being able to make medical decisions for their daughter, or even be with her in the hospital, in the event of a medical
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emergency. If Jason were to pass away, A.C.-K. would be afforded none of the economic supports available to children who lose a parent such as social security survivor benefits. What most keeps Nick and Jason awake at night is the fear that their daughter might not be able to remain with Jason if anything were to happen to Nick. 22. Nick and Jason also worry about the psychological impact on their 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. They are hopeful that the law will change before that time comes. 23. Nick and Jason are fortunate that Jason‘s employer provides health insurance benefits for Nick and A.C.-K. despite the fact that they are not considered to be his family members under Nebraska law. However, because their marriage is not recognized by the State of Nebraska, they have to pay taxes on the coverage, which amounts to $5,650 in taxable income a year. If their marriage were recognized, the family health benefits would not be taxed. 24. Nick and Jason file their federal income taxes as married filing jointly. They would like to file their 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 their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them. Crystal Von Kampen and Carla Morris-Von Kampen 25. Crystal Von Kampen and Carla Morris-Von Kampen have been in a committed relationship for five years. They were married in Iowa on November 1, 2013. They live in Norfolk, where both have lived most of their lives.
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26. Carla, 40, works at a non-profit that helps families with children who have emotional and mental disabilities. Crystal, 35, served in the Navy for 8 years. She deployed to Iraq with the Marine Corps, where she was a Navy corpsman. She is now disabled as a result of post-traumatic stress. 27. Nebraska‘s refusal to recognize Crystal‘s marriage to Carla means that she cannot access various veterans‘ benefits that otherwise would be available to her and her family. Crystal applied for a Veterans‘ Administration home loan—a loan program for veterans to help purchase properties. The application was submitted under both Crystal and Carla‘s names since the loan was for their shared home. The state Veterans‘ Administration office informed Crystal that because their marriage isn‘t recognized in Nebraska, their loan will not qualify for VA financing as a veteran and spouse loan. As a result, they have had to pay an additional $11,000 for their home loan. 28. In addition, 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 Crystal and Carla‘s marriage 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. 29. Crystal and Carla file their federal income taxes as married filing jointly. They would like to file their 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 their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them.
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Gregory Tubach and William Roby 30. Gregory Tubach and William Roby have been in a committed relationship for 28 years. They live in Lincoln, where Greg, 49, is an editor at a publishing company, and Bil, 57, works at a state agency. 31. Greg was born and raised in Lincoln and Bil‘s family moved to Lincoln when he was a young child. 32. Greg and Bil have taken all the steps they can to replicate protections of marriage, such as hire an attorney to prepare wills, powers of attorney, and healthcare proxies (which cost them $500), but they understand that these documents can provide only a small fraction of the protections that marriage provides. 33. Greg and Bil would like to get married because they love and are committed to one another and they would like all of the protections, the security and the dignity that come with being married. They want to marry in Nebraska, as opposed to in another state, because Nebraska is their home. In addition, Nebraska is where their friends and most of their extended family lives and it‘s important to them for their loved ones to be present at their wedding. Jessica and Kathleen Kallstrom-Schreckengost 34. Jessica and Kathleen Kallstrom-Schreckengost of Omaha have been in a committed relationship since they met in college over ten years ago. They got married on May 12, 2010 in Massachusetts. Jessica, 33, is an attorney and Kathleen, 29, is a clinical psychologist. 35. Jessica and Kathleen recently returned to Nebraska, where Kathleen grew up, after living in New Jersey and New York for several years. Their decision to come to
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Nebraska was motivated in part by the desire to be near Kathleen‘s extended family after the birth of their son, S.K.S., now 9 months old. Jessica and Kathleen would like to have more children but worry about the fact that if they have a child while living in Nebraska, the child would only be able to have a legal parent-child relationship with one of them. 36. Jessica and Kathleen are concerned that the state‘s refusal to recognize their marriage sends the message to their son that his family is less deserving of respect and support than other families. 37. Jessica and Kathleen file their federal income taxes as married filing jointly. They would like to file their 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 the couple to incur greater fees from their accountant. And having to file as single and leave blank the space provided on their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them. Marjorie Plumb and Tracy Weitz 38. Marjorie Plumb and Tracy Weitz of Omaha have been in a committed relationship for over ten years. Marj, who is 55, and Tracy, 49, were married on August 20, 2008, in California, where they used to live. They moved to Nebraska in January 2014 because of a job opportunity for Tracey at a local foundation. Marj has her own business, a firm providing management consulting and executive coaching to non-profit organizations. 39. After living their lives as a married couple for over five years in a state that recognized their marriage and, thus, enjoying the security marriage provides, it was upsetting that the price of moving to Nebraska was to effectively become divorced against their wishes, at least for purposes of state law.
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40. The non-recognition of their marriage denies them the security of knowing that they 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 them should become incapacitated. It also denies them the peace of mind of knowing that when one of them dies, the survivor will be able to retain all of their shared property, including their jointly owned home, as opposed to being hit with an 18% inheritance tax. 41. Moreover, the stigma of having their marriage disrespected permeates their everyday activities. Every time they have to answer the simple question ―are you married?‖ such as at the doctor‘s office or when signing documents at the bank, and cannot give the simple answer ―yes‖, it‘s a reminder of their second-class status. 42. Marj and Tracy have hired attorneys to draw up wills and powers of attorney and have been told this will cost them about $1,000. But they understand that these documents will only provide a small fraction of the protections that come with marriage. 43. Marj and Tracy file their federal income taxes as married filing jointly. They would like to file their state income taxes the same way but are required to file Nebraska taxes as ―single.‖ This costs them approximately $400 more in accountant fees than if they could file jointly. In addition, having to file as ―single‖ and leave blank the space provided on their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them. Randall Clark and Thomas Maddox 44. Randall Clark and Thomas Maddox have been in a committed relationship for over thirty years. They were married on August 22, 2008, in La Jolla, California, where they live. Randy, who is 61, is a CPA and is the chief financial officer for a company
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based in Kansas City. Tom, 57, is a family physician who practices in San Diego and also teaches at a family medicine residency program. 45. Tom grew up in Lincoln and attended both undergraduate and medical school at the University of Nebraska. His extended family continues to live in Nebraska. 46. Tom and Randy own commercial properties in Nebraska. They therefore are required to pay taxes here. They file their federal income taxes as married filing jointly. In 2013 they attempted to file their 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, they may not file jointly and must file using the single filing status. Having to file as single in Nebraska adds to the burden of their tax preparation, requiring many additional hours of labor. Moreover, having to file as ―single‖ and leave blank the space provided on their tax returns for ―spouse,‖ denying the existence of their marriage, is demeaning and hurtful to them. 47. It is upsetting to Randy and Tom that whenever they come to Nebraska, they effectively become unmarried for the duration of their visit. They are concerned about not being recognized as spouses if medical issues were to arise or one of them were to pass away while in Nebraska.
_______________________ 48. Plaintiffs Susan and Sally Waters, Nick Kramer and Jason Cadek, Crystal Von Kampen and Catrina Morris-Von Kampen, Jessica and Kathleen KallstromSchreckengost, Marj Plumb and Tracey Weitz, and Randy Clark and Tom Maddox all were validly married under the laws of other states and their marriages would be recognized in Nebraska but for the fact that they are married to a person of the same sex.
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49. Plaintiffs Greg Tubach and Bil Roby are eligible to marry but for the fact that they wish to marry someone of the same sex. They are over the age of 18, fully competent, are not married to anyone else, are not within a prohibited degree of consanguinity of each other, and are willing and able to assume all of the obligations of marriage.
DEFENDANTS Governor Dave Heineman 50. Defendant Dave Heineman is sued in his official capacity as the Governor of the State of Nebraska. The Governor is the chief executive officer of the State of Nebraska, and is charged with the responsibility to ensure the laws of the State of Nebraska, including the exclusion of same-sex couples from marriage, are enforced. Attorney General Jon Bruning 51. Defendant Jon Bruning is sued in his official capacity as the Attorney General of the State of Nebraska. The Attorney General is the chief legal officer for the State of Nebraska and is charged with enforcing the laws of the State of Nebraska, including the exclusion of same-sex couples from marriage. Kim Conroy, Tax Commissioner for the Nebraska Department of Revenue 52. Defendant Kim Conroy is sued in her official capacity as the Tax Commissioner for the State Department of Revenue. The Tax Commissioner is charged with the responsibility of regulating, assessing and collecting taxes. The Tax Commissioner enforces Nebraska‘s exclusion of same-sex couples from marriage in the context of tax collection.
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53. A revenue ruling signed by the Tax Commissioner provides that same-sex married couples may not file income taxes jointly because their marriages are not recognized under the Nebraska Constitution. Revenue Ruling 22-13-1, Individual Income Tax. The Department of Revenue‘s website contains a document called ―Frequently Asked Questions for Individuals in a Same-Sex Marriage,‖ which advises that in order to file Nebraska income tax returns, such individuals ―must complete a pro forma federal return (a ‗mocked up‘ return that is not actually filed with the IRS) using the single, or if qualified, head of household filing status‖ and use the numbers from the pro forma federal return to file a Nebraska return. Being required to file as single, as opposed to jointly, causes a dignitary harm to married same-sex couples and, for some, increases their tax liability. 54. In addition, the Department of Revenue‘s ―Frequently Asked Questions for Individuals in a Same-Sex Marriage‖ states that ―b[]ecause Nebraska does not recognize a same-sex marriage, employers may not exclude the value of an employer-provided health insurance plan for a same-sex spouse from an employee‘s income.‖ Thus, employees who receive such health insurance for their same-sex spouses must pay taxes on that benefit.
JURISDICTION AND VENUE 55. This court has original jurisdiction over this matter pursuant to 28 USC §1331 and §1343, as plaintiffs‘ Complaint raises questions under the Constitution of the United States.
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56. Venue is proper in this District pursuant to 28 USC §1391(b) as all defendants reside and have offices in this District and the State of Nebraska and a substantial portion of the events giving rise to this claim occurred in this District. 57. This Court has the authority to enter a declaratory judgment and to provide permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
FACTUAL BACKGROUND Nebraska’s prohibition of marriage for same-sex couples 58. Article I, § 29 of the Nebraska Constitution, enacted in 2000 by voter initiative, 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.‖ 59. As a result, marriage in Nebraska is legally available only to opposite-sex couples. Same-sex couples may not marry in Nebraska, and if they are married elsewhere, their marriages are not recognized in Nebraska. Moreover, the amendment invalidates and bars recognition of other forms of unions of same-sex couples such as civil union and domestic partnership. Same-sex and opposite-sex couples are similarly situated for purposes of marriage. 60. The Supreme Court has called marriage ―the most important relation in life,‖ Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an ―expression[] of emotional support and public commitment.‖ Turner v. Safley, 482 U.S. 78, 95 (1987). It is ―afar-reaching legal acknowledgement of the intimate relationship
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between two people. . . .‖ Windsor, 133 S.Ct. at 2692. This is as true for same-sex couples as it is for opposite-sex couples. 61. Same-sex couples such as the plaintiff couples are identical to opposite-sex couples in all of the characteristics relevant to marriage. 62. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, samesex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness. Like some opposite-sex couples, some same-sex couples like plaintiffs Sally and Susan Waters, Nick Cramer and Jason Cadek, and Jessica and Kathleen Kallstrom-Schreckengost are parents raising children together. 63. Same-sex couples seeking to marry are just as willing and able as opposite-sex couples to assume the obligations of marriage. 64. The plaintiff couples and other same-sex couples in Nebraska, if permitted to marry or have their marriages recognized, would benefit no less than opposite-sex couples from the many legal protections and the social recognition afforded to married couples. 65. There was a time when an individual‘s sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives but not vice versa and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical.
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The exclusion of same-sex couples from marriage causes substantial harm to families. 66. By preventing same-sex couples from marrying and refusing to recognize their marriages from other states, Nebraska law deprives them and their families of numerous legal protections that are available to opposite-sex couples by virtue of their marriages. By way of example only:
a. Opposite-sex spouses are entitled to pension benefits payable by the statewide public retirement system, while same-sex spouses and partners are not. Neb. Rev. Stat. § 42-1102.
b. Opposite-sex spouses may jointly adopt a child together, while same-sex spouses and partners may not. Neb. Rev. Stat. § 43101.
c. Opposite-sex spouses may adopt one another‘s children, while same-sex spouses and partners may not. In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002).
d. Opposite-sex spouses have the option of filing state tax income returns jointly. Neb. Rev. Stat. § 77-2732. Same-sex spouses and partners must file separately. Nebraska Department of Revenue Ruling 21-13-1.
e. Opposite-sex spouses are presumed to be each other‘s survivor for the purposes of custodial trusts, while same-sex spouses and partners are not. Neb. Rev. Stat. § 30-3507.
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f. Opposite-sex spouses may make health care and end of life decisions for each other in the absence of an advance directive, while same-sex spouses and partners may not.
g. Opposite-sex surviving spouses are the default decision-makers relating to the disposition of their spouse‘s remains, while same-sex surviving spouses or partners are not. Neb. Rev. Stat. § 30-2223.
h. Surviving opposite-sex spouses are permitted to inherit at a tax rate of 1% and have a homestead allowance to protect the value of the home (Neb. Rev. Stat. § 77-2004), while surviving samesex spouses or partners inherit at a tax rate of 18% with no homestead allowance. Neb. Rev. Stat. § 77-2006.
i. Opposite-sex spouses automatically inherit from one another as a matter of law even if there is no written will, while same-sex spouses and partners inherit nothing from each other if they die without a will. Neb. Rev. Stat. § 30-2302.
j. If an opposite-sex spouse attempts to leave less than 50% of his or her estate to the surviving spouse, the survivor has the right to inherit 50%; a surviving same-sex spouse or partner would not have this protection. Neb. Rev. Stat. § 30-2313.
k. An opposite-sex surviving spouse of an officer in the Nebraska State Patrol automatically receives a percentage of the annuity
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provided to such officers, while a same-sex surviving spouse or partner receives nothing. Neb. Rev. Stat. § 81-2026. l. An opposite-sex surviving spouse of a retired judge automatically receives 50% of the monthly benefit paid to retired judges, while a same-sex surviving spouse or partner receives nothing. Neb. Rev. Stat. § 24-707.01. m. An opposite-sex surviving spouse of a firefighter is entitled to the firefighter‘s pension, while a same-sex surviving spouse or partner is not. Neb. Rev. Stat. § 16-1029. n. An opposite-sex surviving spouse of a veteran who is paraplegic or a multiple amputee is exempt from property tax, while a same-sex surviving spouse or partner cannot receive the same exemption. Neb. Rev. Stat. § 77-3527. o. An opposite-sex surviving spouse is presumed to be a dependent for support of a deceased employee under the Workers Compensation law, while a same-sex surviving spouse or partner has no such presumption. Neb. Rev. Stat. § 48-124. p. An opposite-sex surviving spouse is entitled to continue coverage under his or her spouse‘s employee health benefits, while a same-sex surviving spouse or partner has no such coverage. Neb. Rev. Stat. § 44-1643.
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q. Opposite-sex spouses are not required to testify against their spouse in a criminal trial while a same-sex spouses and partners have no such privilege. Neb. Rev. Stat. § 27-505.
r. Opposite-sex spouses may take out sickness or accident insurance upon each other without written consent, while same-sex spouses and partners may not. Neb. Rev. Stat. § 44704.
s. Opposite-sex spouses upon dissolution of their relationship may petition the court for division of property and debts upon and alimony, while same-sex spouses and partners may not. Neb. Rev. Stat. § 42-365.
67. The exclusion of same-sex couples from marriage also denies plaintiffs and other same-sex couples in Nebraska eligibility for numerous federal protections afforded to married couples. Some of the federal protections for married couples are only available to couples if their marriages are legally recognized in the state in which they live. See, e.g., 43 U.S.C. § 416(h)(1)(A)(i) (marriage eligibility for social security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same for Family Medical Leave Act). Thus, even the married plaintiff couples cannot access such federal protections as long as Nebraska refuses to recognize their marriages. 68. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms ―mraried‖ and ―spouse‖ have universally
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understood meanings that command respect for a couple‘s relationship and the commitment they have made. The exclusion from the esteemed institution of marriage also demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by opposite-sex couples. Excluding same-sex couples from marriage is not rationally related to a legitimate government interest, let alone able to withstand heightened scrutiny. 69. The prohibition against marriage for same-sex couples in Nebraska—both the bar against marrying and the non-recognition of their marriages validly entered into in other states—is not rationally related to any legitimate government interest, let alone able to withstand heightened scrutiny. 70. Nebraska‘s ban on marriage for same-sex couples is not rationally related to any interest in procreation or promoting the well-being of children. Excluding same-sex couples from marriage bears no relation to any such interest because whether same-sex couples are permitted to marry does not rationally affect the procreative and child-rearing decisions of same-sex or opposite-sex couples. 71. Moreover, there is no legitimate basis for Nebraska to assert a preference for child-rearing by opposite-sex couples over same-sex couples. There is a consensus within the scientific community, based on over thirty years of research, that children raised by same-sex couples fare no differently than children raised by opposite-sex couples. This is recognized by every major professional organization dedicated to children‘s health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers and the Child Welfare League of America.
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72. Excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples by denying their families significant benefits and by branding their families as inferior and less deserving of respect and, thus, encouraging private bias and discrimination. The state‘s interest in the welfare of children of lesbian and gay parents is as great as its interest in the welfare of other children. 73. The marriage exclusion furthers no legitimate government interest; it serves only to disparage and injure same-sex couples. Indeed, the 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 ―homosxeuality is a sin and should not be sanctioned even by ‗quasi-marriage‘ unions such as domestic partnerships and civil unions.‖ This is not a legitimate basis for unequal treatment of same-sex couples under the law, as the Supreme Court has recognized. Windsor, 133 S.Ct. at 2693.
CLAIMS FOR RELIEF COUNT I:
Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. (42 U.S.C. § 1983)
74. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 75. The Fourteenth Amendment to the United States Constitution precludes any State from ―dperiv[ing] any person of life, liberty, or property, without due process of law[.]‖ U.S. Const. amend. XIV, § 1. Governmental interference with a fundamental right may
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be sustained only upon a showing that the legislation is closely tailored to serve an important governmental interest. 76. The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause. 77. Nebraska denies the plaintiff couples and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states. 78. Nebraska can demonstrate no important interest to justify denying the plaintiff couples this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all. 79. Nebraska‘s prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause. 80. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983) 81. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein.
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82. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that ―nostate shall . . . deny to any person within its jurisdiction the equal protection of the laws.‖ U.S. Const. amend. XIV, § 1. 83. By denying the plaintiff couples and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, Nebraska disadvantages lesbian and gay people on the basis of their sexual orientation. 84. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 85. Classifications based on sexual orientation demand heightened scrutiny. 86. Lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination in Nebraska and across the United States. 87. Sexual orientation bears no relation to an individual‘s ability to perform or contribute to society. 88. Sexual orientation is a core, defining trait that is so fundamental to one‘s identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. Efforts to change a person‘s sexual orientation through interventions by medical professionals have not been shown to be effective. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and many – including the American Psychological Association and the American Psychiatric Association – have adopted policy statements cautioning professionals and the public about these treatments.
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89. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process preventing this group from obtaining redress through legislative means. Lesbians and gay men lack statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half of the states, including Nebraska. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex and race classifications were declared to be suspect or quasi suspect. They have been targeted through the voter initiative process more than any other group. 90. Although classification based on sexual orientation should be reviewed under heightened scrutiny, Nebraska‘s exclusion of same-sex couples from marriage cannot survive under any level of constitutional scrutiny. It is not rationally related to any legitimate governmental interest. All it does it disparage and injure lesbian and gay couples and their children by denying them the protections and respect of marriage. 91. Nebraska‘s prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause. 92. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
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COUNT III: Discrimination on the Basis of Sex in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983) 93. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 94. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that ―nostate shall . . . deny to any person within its jurisdiction the equal protection of the laws.‖ U.S. Const. amend. XIV, § 1. 95. Nebraska‘s marriage amendment 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.‖ 96. By defining marriage in this way, Nebraska discriminates on the basis of sex. For example, plaintiff Greg Tubach is not permitted to marry plaintiff Bil Roby solely because they are both men. If Greg (or Bil) were a woman, the marriage would be allowed. The only reason the marriage is prohibited is the sex of the partners. 97. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage. 98. The defendants can demonstrate no exceedingly persuasive justification for this discrimination based on sex. 99. Nebraska law prohibiting marriage and recognition of marriage for same-sex couples thus violates the Equal Protection Clause.
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100. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter judgment: 101. Declaring that 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, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 102. Permanently enjoining defendants 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, and from denying same-sex spouses any incidents of marriage available to opposite-sex spouses; 103. Awarding the plaintiffs their costs, expenses and reasonable attorneys‘ fees pursuant to 42 USC §1988; and 104. Granting such other and further relief as deemed appropriate by the Court. 105. The declaratory and injunctive relief requested in this action is sought against each defendant; against each defendant‘s officers, employees, and agents; and against all persons acting in active concert or participation with any defendant, or under any defendant‘s supervision, direction, or control.
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s/SUSAN KOENIG, #16540 s/ANGELA DUNNE, #21938 Koenig│Dunne 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 (pro hac vice admission pending) ACLU Foundation 125 Broad St., 18th Floor New York, New York 10004 (212) 549-2627 lcooper@aclu.org jblock@aclu.org
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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 KALLSTROM-

)

SCHRECKENGOST and KATHLEEN )

KALLSTROM-SCHRECKENGOST,

)

MARJORIE PLUMB and TRACY WEITZ, )

and RANDALL CLARK and THOMAS )

MADDOX,

)

)

Plaintiffs,

)

)

v.

)

)

DAVE HEINEMAN in his official

)

capacity as Governor of Nebraska, JON )

BRUNING in his official capacity as

)

Attorney General of Nebraska, KIM )

CONROY in her official capacity as Tax )

Commissioner of the Nebraska Department )

of Revenue, KERRY WINTERER in his )

official capacity as CEO of the Nebraska )

Department of Health and Human Services, )

and DAN NOLTE in his official capacity as )

the Lancaster County Clerk,

)

)

Defendants.

)

Civil Action No. 8:13-cv-00215 AMENDED COMPLAINT

INTRODUCTION 1. Plaintiffs are loving, committed same-sex couples who seek to marry in Nebraska or already are married, having wed in another state, but are treated as legal strangers in Nebraska. They bring this action pursuant to 42 USC §1983 seeking declaratory and injunctive relief for the violation of their rights under the Fourteenth Amendment to the United States Constitution caused by Nebraska’s exclusion of same-sex couples from

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marrying and its prohibition against recognizing the marriages of same-sex couples validly entered into in other jurisdictions. Neb. Const. art. I, § 29. 2. The plaintiff couples, like other committed couples, have cared for each other, supported each other, sacrificed for each other, and made plans for the future with each other. Some have endured great challenges and hardships together, such as serious illness. Some are raising children together. Like other couples who have made a lifetime commitment to each other, the plaintiff couples are spouses in every sense, except that Nebraska says they cannot marry and, if they have married in other states, their marriages are not honored here. 3. Nebraska’s exclusion of same-sex couples from marriage adversely impacts the plaintiffs and other same-sex couples across the state in significant ways. It denies samesex couples and their families the numerous legal protections afforded to married couples. For example, when one partner or spouse dies, the survivor may face serious financial hardship, including the loss of her home, because she is denied the inheritance tax exemption and homestead protection provided to different-sex widows. Public employees with same-sex spouses and partners are denied spousal health insurance and pension benefits. And for lesbian and gay couples with children, the exclusion from marriage profoundly impacts their families by denying their children the security of having a legal relationship with both of their parents, depriving them of critical resources and leaving them vulnerable in the event their legal parent dies or becomes incapacitated. 4. In addition to significant tangible harms, Nebraska’s exclusion of same-sex couples from marriage stigmatizes lesbian and gay couples and their children by denying them “a dignity and status of immense import.” United States v. Windsor, 133 S.Ct. 2675,
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2692 (2013). The exclusion “tells [same-sex] couples, and all the world,” that their relationships are “unworthy” of recognition. Id. at 2694. And it “humiliates the . . . children now being raised by same-sex couples” and “makes 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.” Id. 5. Nebraska’s exclusion of same-sex couples from marriage is unconstitutional. “[N]o legitimate purpose overcomes [its] purpose and effect to disparage and to injure” lesbian and gay couples and their families. Id. at 2696. 6. Thirty-five states and Washington, D.C., have now ended their discriminatory exclusion of same-sex couples from the revered institution of marriage, many as a result of the growing judicial consensus that such discrimination cannot stand after the Supreme Court’s decision in Windsor. Without intervention by the Court, lesbian and gay couples in Nebraska will continue to be denied the respect and critical protections that only marriage provides. 7. Accordingly, the plaintiffs seek declaratory and injunctive relief on the grounds that Nebraska’s exclusion of same-sex couples from marriage and refusal to recognize the valid marriages of same-sex couples from other jurisdictions and defendants enforcement of the marriage exclusion violates the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
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PLAINTIFFS Sally and Susan Waters 8. Sally and Susan Waters have been in a committed relationship for over 15 years. They had a religious wedding in 1998 at their church in Omaha and got married on September 19, 2008, in California, where they were living at the time. 9. Sally, 58, and Susan, 53, were both born and raised in Nebraska, Sally in Omaha and Susan in Burwell. They moved to California in 2002 after adopting their first child, G.W. (now 13). They left Nebraska because they could not both be legally recognized parents of their 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. Sally and Susan feared that the lack of a legal tie to one of her parents put their daughter at risk in the event something happened to her legal parent, so they moved to a state where they were able to provide her with the security of two legal parents by doing a second parent adoption. 10. A few years later, Sally and Susan expanded their family, welcoming their second child, J.W., now 10, whom they jointly adopted out of foster care in California. 11. In 2010, Sally and Susan moved their family back to Nebraska. They missed their families and wanted to be closer to their aging parents. Their return to Nebraska was joyful and the family quickly got back into community life, including their church, North Side Christian Church, where they are active members. 12. Susan works at the University of Nebraska Omaha helping faculty use technology in the classroom. Sally is a leadership development consultant at Mutual of Omaha.
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13. In 2011, Sally and Susan welcomed into their family a teenager, K.J., now 18, for whom they are legal guardians. 14. In January 2013, Sally was diagnosed with stage III breast cancer. She has undergone surgery, chemotherapy and radiation. The treatment took a toll on Sally physically and she had to stop working for several months as a result. Susan has been by Sally’s side throughout the grueling treatment, taking leave from work to care for her and to manage their home and family during hospitalizations that resulted from Sally’s poor response to chemotherapy. The loss of Sally’s income took a significant toll on the family’s finances, as did the medical bills. 15. By April 2014, Sally’s cancer had spread to her spine and was diagnosed as stage IV metastatic breast cancer. She is under treatment again both to slow the tumor growth and to deal with the debilitating pain. She and Susan have been taking steps to get Sally’s affairs in order, as her future is very uncertain. The fact that their marriage is not recognized in their home state adds to the already excruciating pain and stress of facing a terminal illness. While they have hired lawyers to draw up wills, powers of attorney, and living wills, Sally and Susan worry that if they don’t have the documents readily at hand during a medical emergency, Susan will not be able to make medical decisions for Sally if that becomes necessary, get information about her condition from doctors, or even be by her side in the hospital. 16. Sally and Susan are also anxious about how Susan will manage to support the family after Sally passes away. They worry about the fact that Susan will have to pay an 18% inheritance tax on half of the property they share, including the home they own together, because she won’t be entitled to the spousal rate of 1% and the homestead
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protection for widows. With that kind of tax bill, they don’t know if Susan and the kids will be able to remain in their home. In addition, when Susan reaches retirement age, she will not be entitled to Sally’s social security since her home state does not recognize their marriage. Furthermore, as beneficiary of Sally’s 401k, but not recognized as her spouse, Susan will not be allowed to roll the money into her own IRA and will have to pay taxes on it right away. 17. Because their marriage is not recognized under Nebraska law, when Sally passes away, her death certificate will not reflect her marriage to Susan and, instead, will list her marital status as “single” and leave blank the space for surviving spouse. No widow should have to suffer this indignity in her time of grief. 18. Sally and Susan jointly file their federal income taxes as married filing jointly. They would like to file their 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 their tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. Nickolas Kramer and Jason Cadek 19. Nickolas Kramer and Jason Cadek have been in a committed relationship for over ten years. They were married on October 12, 2013 in Iowa. They live in Omaha, where Nick, 42, is a management consultant and Jason, 37, is a compliance auditor for a bank. Jason grew up in North Loup, Nebraska and has extended family there. 20. In 2011, Nick and Jason became 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 their marriage is not recognized in Nebraska, A.C.-K. could only be
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adopted by one of her two parents. As a result, Jason, who the child knows as “Daddy”, has no legal ties to her. 21. The lack of a legal parent-child relationship with Jason denies A.C.-K. important protections and economic resources and creates profound stress and insecurity for the family. For example, Nick and Jason worry about Jason not being able to make medical decisions for their daughter, or even be with her in the hospital, in the event of a medical emergency. If Jason were to pass away, A.C.-K. would be afforded none of the economic supports available to children who lose a parent such as social security survivor benefits. What most keeps Nick and Jason awake at night is the fear that their daughter might not be able to remain with Jason if anything were to happen to Nick. 22. Nick and Jason also worry about the psychological impact on their 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. They are hopeful that the law will change before that time comes. 23. Nick and Jason are fortunate that Jason’s employer provides health insurance benefits for Nick and A.C.-K. despite the fact that they are not considered to be his family members under Nebraska law. However, because their marriage is not recognized by the State of Nebraska, they have to pay taxes on the coverage, which amounts to $5,650 in taxable income a year. If their marriage were recognized, the family health benefits would not be taxed. 24. Nick and Jason file their federal income taxes as married filing jointly. They would like to file their 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 their
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tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. Crystal Von Kampen and Carla Morris-Von Kampen 25. Crystal Von Kampen and Carla Morris-Von Kampen have been in a committed relationship for five years. They were married in Iowa on November 1, 2013. They live in Norfolk, where both have lived most of their lives. 26. Carla, 40, works at a non-profit that helps families with children who have emotional and mental disabilities. Crystal, 35, served in the Navy for 8 years. She deployed to Iraq with the Marine Corps, where she was a Navy corpsman. She is now disabled as a result of post-traumatic stress. 27. Nebraska’s refusal to recognize Crystal’s marriage to Carla means that she cannot access various veterans’ benefits that otherwise would be available to her and her family. Crystal applied for a Veterans’ Administration home loan—a loan program for veterans to help purchase properties. The application was submitted under both Crystal and Carla’s names since the loan was for their shared home. The state Veterans’ Administration office informed Crystal that because their marriage isn’t recognized in Nebraska, their loan will not qualify for VA financing as a veteran and spouse loan. As a result, they have had to pay an additional $11,000 for their home loan. 28. In addition, 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 Crystal and Carla’s marriage is not recognized in Nebraska. The denial was upheld on
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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. 29. Crystal and Carla file their federal income taxes as married filing jointly. They would like to file their 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 their tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. Gregory Tubach and William Roby 30. Gregory Tubach and William Roby have been in a committed relationship for 28 years. They live in Lincoln, where Greg, 49, is an editor at a publishing company, and Bil, 57, works at a state agency. 31. Greg was born and raised in Lincoln and Bil’s family moved to Lincoln when he was a young child. 32. Greg and Bil have taken all the steps they can to replicate protections of marriage, such as hire an attorney to prepare wills, powers of attorney, and healthcare proxies (which cost them $500), but they understand that these documents can provide only a small fraction of the protections that marriage provides. 33. Greg and Bil would like to get married because they love and are committed to one another and they would like all of the protections, the security and the dignity that come with being married. They want to marry in Nebraska, as opposed to in another state, because Nebraska is their home. In addition, Nebraska is where their friends and most of their extended family lives and it’s important to them for their loved ones to be present at their wedding.
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Jessica and Kathleen Kallstrom-Schreckengost 34. Jessica and Kathleen Kallstrom-Schreckengost of Omaha have been in a committed relationship since they met in college over ten years ago. They got married on May 12, 2010 in Massachusetts. Jessica, 33, is an attorney and Kathleen, 29, is a clinical psychologist. 35. Jessica and Kathleen recently returned to Nebraska, where Kathleen grew up, after living in New Jersey and New York for several years. Their decision to come to Nebraska was motivated in part by the desire to be near Kathleen’s extended family after the birth of their son, S.K.S., now 9 months old. Jessica and Kathleen would like to have more children but worry about the fact that if they have a child while living in Nebraska, the child would only be able to have a legal parent-child relationship with one of them. 36. Jessica and Kathleen are concerned that the state’s refusal to recognize their marriage sends the message to their son that his family is less deserving of respect and support than other families. 37. Jessica and Kathleen file their federal income taxes as married filing jointly. They would like to file their 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 the couple to incur greater fees from their accountant. And having to file as single and leave blank the space provided on their tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. Marjorie Plumb and Tracy Weitz 38. Marjorie Plumb and Tracy Weitz of Omaha have been in a committed relationship for over ten years. Marj, who is 55, and Tracy, 49, were married on August 20, 2008, in
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California, where they used to live. They moved to Nebraska in January 2014 because of a job opportunity for Tracey at a local foundation. Marj has her own business, a firm providing management consulting and executive coaching to non-profit organizations. 39. After living their lives as a married couple for over five years in a state that recognized their marriage and, thus, enjoying the security marriage provides, it was upsetting that the price of moving to Nebraska was to effectively become divorced against their wishes, at least for purposes of state law. 40. The non-recognition of their marriage denies them the security of knowing that they 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 them should become incapacitated. It also denies them the peace of mind of knowing that when one of them dies, the survivor will be able to retain all of their shared property, including their jointly owned home, as opposed to being hit with an 18% inheritance tax. 41. Moreover, the stigma of having their marriage disrespected permeates their everyday activities. Every time they have to answer the simple question “are you married?” such as at the doctor’s office or when signing documents at the bank, and cannot give the simple answer “yes”, it’s a reminder of their second-class status. 42. Marj and Tracy have hired attorneys to draw up wills and powers of attorney and have been told this will cost them about $1,000. But they understand that these documents will only provide a small fraction of the protections that come with marriage. 43. Marj and Tracy file their federal income taxes as married filing jointly. They would like to file their state income taxes the same way but are required to file Nebraska taxes as “single.” This costs them approximately $400 more in accountant fees than if
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they could file jointly. In addition, having to file as “single” and leave blank the space provided on their tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. Randall Clark and Thomas Maddox 44. Randall Clark and Thomas Maddox have been in a committed relationship for over thirty years. They were married on August 22, 2008, in La Jolla, California, where they live. Randy, who is 61, is a CPA and is the chief financial officer for a company based in Kansas City. Tom, 57, is a family physician who practices in San Diego and also teaches at a family medicine residency program. 45. Tom grew up in Lincoln and attended both undergraduate and medical school at the University of Nebraska. His extended family continues to live in Nebraska. 46. Tom and Randy own commercial properties in Nebraska. They therefore are required to pay taxes here. They file their federal income taxes as married filing jointly. In 2013 they attempted to file their 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, they may not file jointly and must file using the single filing status. Having to file as single in Nebraska adds to the burden of their tax preparation, requiring many additional hours of labor. Moreover, having to file as “single” and leave blank the space provided on their tax returns for “spouse,” denying the existence of their marriage, is demeaning and hurtful to them. 47. It is upsetting to Randy and Tom that whenever they come to Nebraska, they effectively become unmarried for the duration of their visit. They are concerned about
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not being recognized as spouses if medical issues were to arise or one of them were to pass away while in Nebraska. 48. Plaintiffs Susan and Sally Waters, Nick Kramer and Jason Cadek, Crystal Von Kampen and Catrina Morris-Von Kampen, Jessica and Kathleen KallstromSchreckengost, Marj Plumb and Tracey Weitz, and Randy Clark and Tom Maddox all were validly married under the laws of other states and their marriages would be recognized in Nebraska but for the fact that they are married to a person of the same sex. 49. Plaintiffs Greg Tubach and Bil Roby are eligible to marry but for the fact that they wish to marry someone of the same sex. They are over the age of 18, fully competent, are not married to anyone else, are not within a prohibited degree of consanguinity of each other, and are willing and able to assume all of the obligations of marriage.
DEFENDANTS Governor Dave Heineman 50. Defendant Dave Heineman is sued in his official capacity as the Governor of the State of Nebraska. The Governor is the chief executive officer of the State of Nebraska, and is charged with the responsibility to ensure the laws of the State of Nebraska, including the exclusion of same-sex couples from marriage, are enforced. Attorney General Jon Bruning 51. Defendant Jon Bruning is sued in his official capacity as the Attorney General of the State of Nebraska. The Attorney General is the chief legal officer for the State of Nebraska and is charged with enforcing the laws of the State of Nebraska, including the exclusion of same-sex couples from marriage.
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Kim Conroy, Tax Commissioner for the Nebraska Department of Revenue 52. Defendant Kim Conroy is sued in her official capacity as the Tax Commissioner for the State Department of Revenue. The Tax Commissioner is charged with the responsibility of regulating, assessing and collecting taxes. The Tax Commissioner enforces Nebraska’s exclusion of same-sex couples from marriage in the context of tax collection. 53. A revenue ruling signed by the Tax Commissioner provides that same-sex married couples may not file income taxes jointly because their marriages are not recognized under the Nebraska Constitution. Revenue Ruling 22-13-1, Individual Income Tax. The Department of Revenue’s website contains a document called “Frequently Asked Questions for Individuals in a Same-Sex Marriage,” which advises that in order to file Nebraska income tax returns, such individuals “must complete a pro forma federal return (a ‘mocked up’ return that is not actually filed with the IRS) using the single, or if qualified, head of household filing status” and use the numbers from the pro forma federal return to file a Nebraska return. Being required to file as single, as opposed to jointly, causes a dignitary harm to married same-sex couples and, for some, increases their tax liability. 54. In addition, the Department of Revenue’s “Frequently Asked Questions for Individuals in a Same-Sex Marriage” states that “[b]ecause Nebraska does not recognize a same-sex marriage, employers may not exclude the value of an employer-provided health insurance plan for a same-sex spouse from an employee’s income.” Thus, employees who receive such health insurance for their same-sex spouses must pay taxes on that benefit.
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Kerry Winterer, CEO of the Nebraska Department of Health and Human Services 55. Defendant Kerry Winterer is sued in his official capacity as the CEO of the Nebraska Department of Health and Human Services (HHS). Within HHS is the Office of Vital Records, which maintains vital records, including marriage licenses. HHS is responsible for preparing the “marriage worksheet” for marriage license applicants used by county clerks across Nebraska, which presently prohibits persons of the same sex from obtaining a marriage license by requiring both a “Bride” and a “Groom.” Moreover, upon information and belief, because Nebraska does not permit same-sex couples to marry, HHS will not accept or maintain records of marriages of same-sex couples. Dan Nolte, Lancaster County Clerk 56. Defendant Dan Nolte is sued in his official capacity as the Lancaster County Clerk. In Nebraska, county clerks, including the Lancaster County Clerk, are responsible for issuing marriage licenses. They are required to issue marriage licenses in accordance with state law, which forbids marriage by same-sex couples. Thus, the Lancaster County Clerk enforces Nebraska’s exclusion of same-sex couples from marriage by limiting marriage licenses to opposite-sex couples
JURISDICTION AND VENUE 57. This court has original jurisdiction over this matter pursuant to 28 USC §1331 and §1343, as plaintiffs’ Complaint raises questions under the Constitution of the United States. 58. Venue is proper in this District pursuant to 28 USC §1391(b) as all defendants reside and have offices in this District and the State of Nebraska and a substantial portion of the events giving rise to this claim occurred in this District.
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59. This Court has the authority to enter a declaratory judgment and to provide permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
FACTUAL BACKGROUND Nebraska’s prohibition of marriage for same-sex couples 60. Article I, § 29 of the Nebraska Constitution, enacted in 2000 by voter initiative, 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.” 61. As a result, marriage in Nebraska is legally available only to opposite-sex couples. Same-sex couples may not marry in Nebraska, and if they are married elsewhere, their marriages are not recognized in Nebraska. Moreover, the amendment invalidates and bars recognition of other forms of unions of same-sex couples such as civil union and domestic partnership. Same-sex and opposite-sex couples are similarly situated for purposes of marriage. 62. The Supreme Court has called marriage “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an “expression[] of emotional support and public commitment.” Turner v. Safley, 482 U.S. 78, 95 (1987). It is “a far-reaching legal acknowledgement of the intimate relationship between two people. . . .” Windsor, 133 S.Ct. at 2692. This is as true for same-sex couples as it is for opposite-sex couples.
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63. Same-sex couples such as the plaintiff couples are identical to opposite-sex couples in all of the characteristics relevant to marriage. 64. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, samesex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness. Like some opposite-sex couples, some same-sex couples like plaintiffs Sally and Susan Waters, Nick Cramer and Jason Cadek, and Jessica and Kathleen Kallstrom-Schreckengost are parents raising children together. 65. Same-sex couples seeking to marry are just as willing and able as opposite-sex couples to assume the obligations of marriage. 66. The plaintiff couples and other same-sex couples in Nebraska, if permitted to marry or have their marriages recognized, would benefit no less than opposite-sex couples from the many legal protections and the social recognition afforded to married couples. 67. There was a time when an individual’s sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives but not vice versa and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical. The exclusion of same-sex couples from marriage causes substantial harm to families. 68. By preventing same-sex couples from marrying and refusing to recognize their marriages from other states, Nebraska law deprives them and their families of numerous
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legal protections that are available to opposite-sex couples by virtue of their marriages. By way of example only:
a. Opposite-sex spouses are entitled to pension benefits payable by the statewide public retirement system, while same-sex spouses and partners are not. Neb. Rev. Stat. § 42-1102.
b. Opposite-sex spouses may jointly adopt a child together, while same-sex spouses and partners may not. Neb. Rev. Stat. § 43101.
c. Opposite-sex spouses may adopt one another’s children, while same-sex spouses and partners may not. In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002).
d. Opposite-sex spouses have the option of filing state tax income returns jointly. Neb. Rev. Stat. § 77-2732. Same-sex spouses and partners must file separately. Nebraska Department of Revenue Ruling 21-13-1.
e. Opposite-sex spouses are presumed to be each other’s survivor for the purposes of custodial trusts, while same-sex spouses and partners are not. Neb. Rev. Stat. § 30-3507.
f. Opposite-sex spouses may make health care and end of life decisions for each other in the absence of an advance directive, while same-sex spouses and partners may not.
g. Opposite-sex surviving spouses are the default decision-makers relating to the disposition of their spouse’s remains, while
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same-sex surviving spouses or partners are not. Neb. Rev. Stat. § 30-2223. h. Surviving opposite-sex spouses are permitted to inherit at a tax rate of 1% and have a homestead allowance to protect the value of the home (Neb. Rev. Stat. § 77-2004), while surviving samesex spouses or partners inherit at a tax rate of 18% with no homestead allowance. Neb. Rev. Stat. § 77-2006. i. Opposite-sex spouses automatically inherit from one another as a matter of law even if there is no written will, while same-sex spouses and partners inherit nothing from each other if they die without a will. Neb. Rev. Stat. § 30-2302. j. If an opposite-sex spouse attempts to leave less than 50% of his or her estate to the surviving spouse, the survivor has the right to inherit 50%; a surviving same-sex spouse or partner would not have this protection. Neb. Rev. Stat. § 30-2313. k. An opposite-sex surviving spouse of an officer in the Nebraska State Patrol automatically receives a percentage of the annuity provided to such officers, while a same-sex surviving spouse or partner receives nothing. Neb. Rev. Stat. § 81-2026. l. An opposite-sex surviving spouse of a retired judge automatically receives 50% of the monthly benefit paid to retired judges, while a same-sex surviving spouse or partner receives nothing. Neb. Rev. Stat. § 24-707.01.
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m. An opposite-sex surviving spouse of a firefighter is entitled to the firefighter’s pension, while a same-sex surviving spouse or partner is not. Neb. Rev. Stat. § 16-1029.
n. An opposite-sex surviving spouse of a veteran who is paraplegic or a multiple amputee is exempt from property tax, while a same-sex surviving spouse or partner cannot receive the same exemption. Neb. Rev. Stat. § 77-3527.
o. An opposite-sex surviving spouse is presumed to be a dependent for support of a deceased employee under the Workers Compensation law, while a same-sex surviving spouse or partner has no such presumption. Neb. Rev. Stat. § 48-124.
p. An opposite-sex surviving spouse is entitled to continue coverage under his or her spouse’s employee health benefits, while a same-sex surviving spouse or partner has no such coverage. Neb. Rev. Stat. § 44-1643.
q. Opposite-sex spouses are not required to testify against their spouse in a criminal trial while a same-sex spouses and partners have no such privilege. Neb. Rev. Stat. § 27-505.
r. Opposite-sex spouses may take out sickness or accident insurance upon each other without written consent, while same-sex spouses and partners may not. Neb. Rev. Stat. § 44704.
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s. Opposite-sex spouses upon dissolution of their relationship may petition the court for division of property and debts upon and alimony, while same-sex spouses and partners may not. Neb. Rev. Stat. § 42-365.
69. The exclusion of same-sex couples from marriage also denies plaintiffs and other same-sex couples in Nebraska eligibility for numerous federal protections afforded to married couples. Some of the federal protections for married couples are only available to couples if their marriages are legally recognized in the state in which they live. See, e.g., 43 U.S.C. § 416(h)(1)(A)(i) (marriage eligibility for social security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same for Family Medical Leave Act). Thus, even the married plaintiff couples cannot access such federal protections as long as Nebraska refuses to recognize their marriages. 70. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms “married” and “spouse” have universally understood meanings that command respect for a couple’s relationship and the commitment they have made. The exclusion from the esteemed institution of marriage also demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by opposite-sex couples. Excluding same-sex couples from marriage is not rationally related to a legitimate government interest, let alone able to withstand heightened scrutiny.
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71. The prohibition against marriage for same-sex couples in Nebraska—both the bar against marrying and the non-recognition of their marriages validly entered into in other states—is not rationally related to any legitimate government interest, let alone able to withstand heightened scrutiny. 72. Nebraska’s ban on marriage for same-sex couples is not rationally related to any interest in procreation or promoting the well-being of children. Excluding same-sex couples from marriage bears no relation to any such interest because whether same-sex couples are permitted to marry does not rationally affect the procreative and child-rearing decisions of same-sex or opposite-sex couples. 73. Moreover, there is no legitimate basis for Nebraska to assert a preference for child-rearing by opposite-sex couples over same-sex couples. There is a consensus within the scientific community, based on over thirty years of research, that children raised by same-sex couples fare no differently than children raised by opposite-sex couples. This is recognized by every major professional organization dedicated to children’s health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers and the Child Welfare League of America. 74. Excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples by denying their families significant benefits and by branding their families as inferior and less deserving of respect and, thus, encouraging private bias and discrimination. The state’s interest in the welfare of children of lesbian and gay parents is as great as its interest in the welfare of other children.
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75. The marriage exclusion furthers no legitimate government interest; it serves only to disparage and injure same-sex couples. Indeed, the 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.” This is not a legitimate basis for unequal treatment of same-sex couples under the law, as the Supreme Court has recognized. Windsor, 133 S.Ct. at 2693.
CLAIMS FOR RELIEF COUNT I:
Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. (42 U.S.C. § 1983)
76. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 77. The Fourteenth Amendment to the United States Constitution precludes any State from “depriv[ing] any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. Governmental interference with a fundamental right may be sustained only upon a showing that the legislation is closely tailored to serve an important governmental interest. 78. The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause.
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79. Nebraska denies the plaintiff couples and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states. 80. Nebraska can demonstrate no important interest to justify denying the plaintiff couples this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all. 81. Nebraska’s prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause. 82. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983) 83. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 84. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 85. By denying the plaintiff couples and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, Nebraska disadvantages lesbian and gay people on the basis of their sexual orientation.
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86. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 87. Classifications based on sexual orientation demand heightened scrutiny. 88. Lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination in Nebraska and across the United States. 89. Sexual orientation bears no relation to an individual’s ability to perform or contribute to society. 90. Sexual orientation is a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. Efforts to change a person’s sexual orientation through interventions by medical professionals have not been shown to be effective. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and many – including the American Psychological Association and the American Psychiatric Association – have adopted policy statements cautioning professionals and the public about these treatments. 91. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process preventing this group from obtaining redress through legislative means. Lesbians and gay men lack statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half of the states, including Nebraska. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex
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and race classifications were declared to be suspect or quasi suspect. They have been targeted through the voter initiative process more than any other group. 92. Although classification based on sexual orientation should be reviewed under heightened scrutiny, Nebraska’s exclusion of same-sex couples from marriage cannot survive under any level of constitutional scrutiny. It is not rationally related to any legitimate governmental interest. All it does it disparage and injure lesbian and gay couples and their children by denying them the protections and respect of marriage. 93. Nebraska’s prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause. 94. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT III: Discrimination on the Basis of Sex in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983) 95. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 96. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
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97. Nebraska’s marriage amendment 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.” 98. By defining marriage in this way, Nebraska discriminates on the basis of sex. For example, plaintiff Greg Tubach is not permitted to marry plaintiff Bil Roby solely because they are both men. If Greg (or Bil) were a woman, the marriage would be allowed. The only reason the marriage is prohibited is the sex of the partners. 99. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage. 100. The defendants can demonstrate no exceedingly persuasive justification for this discrimination based on sex. 101. Nebraska law prohibiting marriage and recognition of marriage for same-sex couples thus violates the Equal Protection Clause. 102. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter judgment: 103. Declaring that 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, violate the Due
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Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 104. Permanently 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; 105. Permanently enjoining all defendants and their agents from denying same-sex spouses any incidents of marriage available to opposite-sex spouses; 106. 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; 107. Permanently enjoining defendant Lancaster County Clerk from denying marriage licenses to same-sex couples who otherwise meet the requirements to marry under Nebraska law; 108. Awarding the plaintiffs their costs, expenses and reasonable attorneys’ fees pursuant to 42 USC §1988; and 109. Granting such other and further relief as deemed appropriate by the Court. 110. The declaratory and injunctive relief requested in this action is sought against each defendant; against each defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with any defendant, or under any defendant’s supervision, direction, or control.
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s/SUSAN KOENIG, #16540 s/ANGELA DUNNE, #21938 Koenig│Dunne 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 (pro hac vice admission pending) ACLU Foundation 125 Broad St., 18th Floor New York, New York 10004 (212) 549-2627 lcooper@aclu.org jblock@aclu.org
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 8:14-cv-00356-JFB-TDT Doc # 54 Filed: 03/02/15 Page 1 of 34 - Page ID # 680

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRIS-VON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROM-SCHRECKENGOST, KATHLEEN KALLSTROMSCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, THOMAS MADDOX,
Plaintiffs,
v.
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; LEONARD J. SLOUP, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; JOSEPH ACIERNO, in his official capacity as Acting CEO of the Nebraska Department of Health and Human Services; and DAN NOLTE, in his official capacity as the Lancaster County Clerk;
Defendants.

8:14CV356 MEMORANDUM AND ORDER

This matter is before the court on the plaintiffs' motion for a preliminary injunction, Filing No. 10. This is an action for violation of civil rights brought pursuant to 42 U.S.C. § 1983. The plaintiffs seek declaratory and injunctive relief for violation of rights protected by the Fourteenth Amendment by virtue of Nebraska’s exclusion of same-sex couples from marrying and its prohibition against recognizing the marriages of samesex couples validly entered into in other jurisdictions under Neb. Const. art. I, § 29 (hereinafter, "Section 29" or "the Amendment").

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I. BACKGROUND The court heard oral argument on the motion on February 19, 2015. The parties offered affidavits in support of their respective positions. See Filing No. 10, Index of Evid., Exs. A to N; Filing No. 44, Index of Evid., Exs. 1-3. There are no substantive objections to the affidavits for purposes of this motion.1 In response to questioning by the court, the parties requested and were granted leave to submit additional materials. The court has received and reviewed those materials. See Filing No. 51 and Filing No. 52. The plaintiffs challenge the constitutionality of Section 29 of the Constitution of the State of Nebraska. The challenged amendment provides "[o]nly 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 samesex relationship shall not be valid or recognized in Nebraska." Neb. Const. art. I, § 29. The plaintiffs are same-sex couples who seek to marry in Nebraska or to have their marriages from other states recognized in Nebraska. They assert claims for deprivation of their fundamental right to marry and allege discrimination on the basis of sexual orientation and gender in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The defendants (hereinafter referred to, collectively, as "the State") are Nebraska officials charged with enforcing the State's marriage laws.
A. Facts
1 The State objects to the post-hearing declaration of counsel Angela Dunne on the basis of speculation and lack of personal knowledge. See Filing No. 52. The court finds the motion should be overruled and the evidence will be considered to the extent it is relevant.
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The evidence establishes that plaintiffs Sally and Susan Waters, ages 58 and 53, have been in a committed relationship for over fifteen years. They were married in a religious ceremony in Nebraska in 1998, and were married in 2008 in California. They have two adopted children, ages 13 and 10. The children were adopted in California. They have also been legal guardians of a teenager, now 18, since 2011.
Sally Waters was diagnosed with Stage III breast cancer in 2013. She was diagnosed with Stage IV metastatic breast cancer in April 2014. The cancer has spread to her spine and it was disclosed at the hearing that her doctors have recently discovered another tumor. Susan Waters carries health insurance for the entire family through her employer. The portion of the employer-paid premium for Sally is taxed as income to Susan. Neither of them has survivor benefits.
Susan and Sally Waters have shown that it causes them great distress to know their marriage is not recognized under Nebraska law. They are particularly distressed by the fact that when Sally Waters passes away, the status on her death certificate will state "single." The fact that their marriage is not recognized is stigmatizing and demeaning to the Waterses and their children. Further they have shown that when Sally Waters passes away, Susan will not collect benefits as a widow since their marriage is not recognized in Nebraska. Neither will she be entitled to collect Social Security retirement benefits as Sally Waters's spouse. Also, Susan Waters will be unable to roll Sally Waters's 401K benefits into her own IRA, rather, she will be required to pay taxes on the benefits. In addition, the Waterses have shown that they are required to file Nebraska taxes as "single," as opposed to “married,” costing them higher taxes and tax-preparation fees.
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They seek the ability to make medical decisions on each other's behalf. They have shown that they will suffer immediate and irreparable financial harm when Sally Waters passes away because Susan Waters will be required to pay 18% inheritance tax on Sally Waters's share of property they jointly own rather than the spousal rate of 1%. Further, she will not be entitled to a widow's homestead exemption. They have also shown that the State's nonrecognition of their marriage is hurtful and demeaning to them and to their children.
Plaintiffs Nickolas Kramer and Jason Cadek, ages 42 and 37, have been in a committed relationship for ten years. They were married in 2013 in Iowa. They are the parents of a three-year-old girl that Nickolas Kramer adopted in a single parent adoption in Nebraska. They have shown that the lack of a legal parent-child relationship between the child and Jason Cadek denies their daughter important protections and resources and causes them profound stress and insecurity. They have to file taxes in Nebraska as “single,” causing expense. Jason Cadek carries health insurance on the entire family. However, the employer-paid portion of the premium to cover Nickolas is imputed as taxable income. Neither of them has survivor benefits.
Plaintiffs Carla Morris-Von Kampen and Crystal Von Kampen, ages 40 and 35, have been in a committed relationship for five years. They were married in 2013 in Iowa. Crystal Von Kampen retired from the United States Navy after serving eight years. She suffers from PTSD. She has shown she was not allowed to get a Veterans Administration ("VA") veteran and spouse loan because her marriage to Carla MorrisVon Kampen is not recognized in Nebraska, costing them $11,000.00 more on their loan. Crystal Von Kampen has also shown that Carla Morris-Von Kampen's daughter
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from a previous marriage is unable to take advantage of a tuition waiver granted to stepchildren of disabled veterans because the marriage is not recognized in Nebraska, resulting in increased costs of $5600.00. They also have to file Nebraska taxes as “single,” causing them expense. Crystal carries health insurance for the entire family through Military TriCare benefits. Although Crystal Von Kampen has a survivor benefit through the VA, she does not know whether this will follow federal or state rules.
Plaintiffs Jessica Kallstrom-Schreckengost and Kathleen KallstromSchreckengost, ages 33 and 29, have been in a committed relationship for ten years and were married in 2010 in Massachusetts. They have a nine-month-old son, who was born in New York. They want more children but they worry about the fact that only one partner would be the child's legal parent. They also file taxes as “single,” causing them expense. Neither of them has survivor benefits. They purchased health insurance for their family through the Healthcare Marketplace. They have shown that denying the existence of their marriage is hurtful and demeaning to them and to their child.
Plaintiffs William Roby and Gregory Tubach, ages 49 and 57, have been in a committed relationship for twenty-eight years. They live in Lincoln, Nebraska, and want to get married in Nebraska since it is their home and their friends and extended family live in Nebraska. They have taken steps to replicate the protections of marriage such as preparing wills, powers of attorney, and healthcare directives, which has caused them significant expense, but find that the execution of such documents provides only a fraction of the protections that marriage would provide. In addition, they desire to obtain the security and dignity that comes with being married.
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Marjorie Plumb and Tracy Weitz, ages 55 and 49, have been in a committed relationship for over ten years. They were married in 2008 in California. They have shown they will not be recognized as spouses by medical providers regarding decisionmaking and access to medical records. They are denied the peace of mind of knowing that when one of them dies, the other will be able to retain all of their shared property, including their jointly owned home, as opposed to having to pay 18% Nebraska inheritance tax. They have hired attorneys to draw up wills and powers of attorney at an expense of about $1,000.00, but are aware that the documents provide only a fraction of the protections that come with marriage. They have to file Nebraska taxes as "single." They have also shown that the nonrecognition of their marriage is demeaning and hurtful and tha they feel like second-class citizens. They have purchased health insurance through the Healthcare Marketplace. Neither of them has survivor benefits.
Plaintiffs Randall Clark and Thomas Maddox are 57 and 61 years old. They have been in a committed relationship for over thirty years. They were married in 2008 in California and they presently live there. They grew up and were educated in Nebraska. They own commercial property in Nebraska and are required to file Nebraska taxes as “single.” Having to file as “single” in Nebraska adds to the burden of their tax preparation. They would like their marriage recognized in Nebraska. It upsets them when they visit Nebraska and effectively are regarded as unmarried for the duration of the visit. They are concerned that they would not be regarded as spouses if they were to become ill or die while visiting.
Plaintiffs Susan and Sally Waters; Nickolas Kramer and Jason Cadek; Crystal Von Kampen and Carla Morris-Von Kampen; Jessica and Kathleen Kallstrom-
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Schreckengost; Marjorie Plumb and Tracy Weitz; and Randall Clark and Tom Maddox were all were validly married under the laws of other states and their marriages would be recognized in Nebraska but for the fact that they are married to a person of the same gender. Plaintiffs Gregory Tubach and William Roby are eligible to marry but for the fact that they wish to marry someone of the same sex. They are over the age of 18, fully competent, not married to anyone else, not within a prohibited degree of consanguinity of each other, and are willing and able to assume all of the obligations of marriage.
The State submits evidence, legislative history submitted in Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006), to show that Nebraskans wanted to ensure that public policy regarding marriage in Nebraska was determined by Nebraskans rather than by another state under the Full Faith and Credit Clause. See Filing No. 44, Index of Evid., Ex. 3, Affidavit of David T. Bydalek. It contends the purpose was not to impose stigma or disadvantage on same-sex couples.
The State also submits the Affidavit of Catherine Pakaluk, Ph.D., in which she states she reviewed the findings of several peer-reviewed studies and endorses their conclusions.2 Id., Ex. 1, Affidavit of Catherine Pakaluk, Ph.D. ("Pakaluk Aff.") at 2-3.
2 The referenced studies essentially conclude that outcomes between children raised by samesex couples and children raised by opposite-sex couples differ in several respects. See Loren Marks, "Same-Sex Parenting and Children's Outcomes: A Closer Examination of the American Psychological Association's Brief on Lesbian and Gay Parenting," 41 Social Science Research 735 (2012); Mark Regnerus, ''How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study," 41 Social Science Research 752 (July 2012); Mark Regnerus, "Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures study with Additional Analysis," 41 Social Science Research 1367 (November 2012); Walter R. Schumm, "Methodological Decisions and the Evaluation of Possible Effects of Different Family Structures on Children: The New Family Structures Survey (NFSS)," 41 Social Science Research 1357 (November 2012); Douglas W. Allen, Joseph Price,
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Dr. Pakaluk also professes the opinion that "there is not a consensus within the
scientific community that children raised by same-sex couples fare no differently than
children raised by opposite-sex couples." Id. at 3. Further, the State submits the
Affidavit of Joseph M. Acierno to show that the marriage worksheet, which is required
for couples applying for a marriage license under Nebraska law, is devoid of any
requirement that an applicant disclose their sexual orientation. Id., Ex. 2.
B. The Parties' Arguments
The plaintiffs move for a preliminary injunction, arguing that they are
experiencing real, immediate, and irreparable harm from the State’s refusal to let them
marry or to recognize their marriages from other states. They contend it is likely they
will succeed on the merits of their claims in light of recent Supreme Court and Circuit
Court precedent on the issue. See United States v. Windsor, 133 S. Ct. 2675 (2013)
(invalidating federal Defense of Marriage Act ("DOMA")); Baskin v. Bogan, 766 F.3d
648 (7th Cir. 2014) (invalidating Indiana and Wisconsin same-sex marriage bans);
Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, 135 S. Ct. 308 (2014)
(invalidating Virginia same-sex marriage ban); Kitchen v. Herbert, 755 F.3d 1193 (10th
and Catherine Pakaluk, "Nontraditional Families and Childhood Progress through School: A Comment on Rosenfeld," 50 Demography 955 (June 2013); Walter R. Schumm, "Comparative Relationship Stability of Lesbian Mother and Heterosexual Mother Families: A Review of Evidence," 46 Marriage and Family Review 499 (2010); Douglas W. Allen, "High School Graduation Rates Among Children of Same-Sex Households," 11 Review of Economics of the Household 635 (December 2013); see Filing No. 44-1, Index of Evid., Pakaluk Aff., attachments.
Several of those studies and testimony by the authors of those studies were found largely "unbelievable and not worthy of consideration" and characterized as expressing a "fringe viewpoint that is rejected by the vast majority of [the studies' authors'] colleagues across a variety of social science fields" by the District Court in the case later reversed by the Sixth Circuit Court of Appeals and now pending before the Supreme Court. DeBoer v. Snyder, 973 F. Supp. 2d 757, 768 (E.D. Mich.), rev'd, 772 F.3d 388 (6th Cir. 2014), cert. granted sub nom. Obergefell v. Hodges, 135 S. Ct. 1039 (2015); see also DeBoer v. Snyder, 973 F. Supp. 2d at 767 (Daughtrey, J., dissenting) (noting the studies were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors).
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Cir.) (invalidating Utah same-sex marriage ban), cert. denied, 135 S. Ct. 265 (2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (2014) (invalidating Oklahoma same-sex marriage ban); Latta v. Otter, 771 F.3d 456 (9th Cir.), stay denied, 135 S. Ct. 345 (2014) (invalidating Nevada and Idaho same-sex marriage bans); but see DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (upholding Michigan statute and constitutional amendment prohibiting same sex marriage), cert. granted sub nom. Obergell v. Hodges, No. 14-556, 2015 WL 213646 (Jan. 16, 2015). The plaintiffs argue the Amendment cannot withstand constitutional muster under either strict scrutiny for deprivation of a fundamental liberty interest protected by the Due Process Clause, or under heightened scrutiny under the Equal Protection Clause for discrimination on the basis of their sexual orientation or gender. Further, they argue the harm they will suffer outweighs any harm to the State and they contend that injunctive relief is in the public interest.
In opposition to the motion, the State argues that the plaintiffs are not likely to succeed on the merits of their claims. It first argues that the plaintiffs' claims are foreclosed by Supreme Court and Eighth Circuit precedent.3 It also argues that there is no fundamental right to same-sex marriage and contends that Nebraska's marriage laws are subject to, and easily satisfy, rational basis review. The State argues it has a legitimate interest in “steer[ing] naturally procreative relationships into enduring unions
3 The State cites Windsor, 133 S. Ct. at 2691 (noting the traditional authority of the states to regulate domestic relations matters), Baker v. Nelson, 409 U.S. 810 (1972), and Citizens for Equal Prot. v. Bruning, 455 F.3d at 867 for this proposition.
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and link[ing] children to both of their biological parents.”4 See Filing No. 43, Defendants' Brief at 30; see Filing No. 44, Index of Evid., Ex. 1, Affidavit of Catherin Pakaluk at 3 (reviewing attached peer-reviewed studies and stating “there is not a consensus with the scientific community that children raised by same-sex couples fare no differently than children raised by opposite-sex couples”) (emphasis in original). In addition, the State argues that the challenged marriage laws are not subject to heightened scrutiny because "man-woman couples and same-sex couples are not similarly situated with regard to the State’s interest in connecting children to both biological parents." Id. at 33. Also, it argues that the Amendment does not impermissibly discriminate on the basis of gender because the prohibition applies with equal force to same-sex couples of both genders. Id. at 24.
The State also argues that the balance of harms and the public interest favor a denial of injunctive relief. It contends it will be harmed by the inability to enforce its dulyenacted laws and argues the public has an overriding interest in having stable marriage laws. It also contends that any grant of injunctive relief has the potential to create confusion in local government, and will risk throwing established administrative processes into turmoil.
At the hearing, the State orally moved for a stay of any injunction that might issue to allow it to file an appeal.
4 In this connection, it argues "[o]nly sexual relationships between a man and a woman advance the State’s interest because only those relationships naturally produce children and are able to provide those children with both of their biological parents." Filing No. 43, Defendant's Brief at 32.
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II. LAW A. Injunctive Relief
The issuance of a preliminary injunction depends upon a “flexible” consideration of the probability that the moving party will succeed on the merits of the claim, the threat of irreparable harm to the moving party, balancing that harm with any injury an injunction would inflict on other interested parties; and the effect on the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). Evaluating the likelihood of success on the merits calls for a predictive judgment about how a court is likely to rule. See, e.g., Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012). Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, district courts must make a threshold finding that a party is likely to prevail on the merits. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). In such cases, it is only after finding that a party is likely to prevail on the merits that a district court should weigh the other Dataphase factors. Id. at 732.
"’The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’" Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)). A plaintiff must demonstrate "that remedies available at law, such as monetary damages, are inadequate to compensate for that injury." eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The question of irreparable injury is sometimes tied to the merits of a constitutional claim. See, e.g. Kroupa v. Neilsen, 731 F.3d 813, 820 (8th Cir. 2013) (noting in a deprivation of procedural due process case
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that damage to one's reputation is a harm that cannot be remedied by a later award of money damages, the threat of reputational harm may form the basis for preliminary injunctive relief). If a party can establish a sufficient likelihood of success on the merits of a constitutional claim, "the party will also have established irreparable harm as the result of the deprivation." See Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.")5
A showing of irreparable harm does not automatically mandate a ruling in the plaintiff’s favor; the court must proceed to balance the harm to the defendant in granting the injunction. Hill v. Xyquad, Inc., 939 F.2d 627, 630-31 (8th Cir. 1991). The state has an interest in ensuring its legitimate laws are followed. New Motor Vehicle Bd. Of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (staying injunction). However, the protection of constitutionally protected rights necessarily serves the public interest. Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (“[I]t is always in the public interest to protect constitutional rights.”), overruled on other grounds by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012).
5 In Windsor, the Supreme Court identified several harms flowing from DOMA's same-sex marriage ban: "humiliation of tens of thousands of children now being raised by same-sex couples," "financial harm to children by raising the cost of health care for families by taxing health benefits provided by employers to their workers' same sex spouses," and "denying or reducing benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security." Windsor, 133 S. Ct. at 2694-96; see also Latta, 771 F.3d at 476 (finding "Idaho and Nevada's marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states.").
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B. Constitutional Claims 1. Constitutional Standards
"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons." Windsor, 133 S. Ct. at 2691. All fundamental rights comprised within the term liberty are protected by the federal constitution from invasion by the States. Planned Parenthood v. Casey, 505 U.S. 833, 846-47 (1992). The doctrine of substantive due process extends protections to fundamental rights in addition to the specific freedoms protected by the bill of rights. Washington v. Glucksberg, 521 U.S. 702, 720 (1997); see also Casey, 505 U.S. at 848. A law that burdens a fundamental right is subject to strict scrutiny. Casey, 505 U.S. at 848. Strict scrutiny requires the state law serve a compelling state interest and the means used must be narrowly tailored to achieve that end. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
The Supreme Court has held that the right to marry is a fundamental liberty.6 Griswold, 381 U.S. at 479; Maynard v. Hill, 125 U.S. 190, 205 (1888); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Loving v. Virginia, 388 U.S. 1, 12 (1967). It has held that the fundamental right to marry cannot be restricted on the criteria of race, incarceration, or failing to pay child support. Loving, 388 U.S. 1 (race), Turner v. Safley, 482 U.S. 78, 95-97 (1987) (incarceration); Zablocki v. Redhail, 434 U.S. 374, 382 (1978) (failing to pay child support). The right to marry is separate from the right to procreate. See Glucksberg, 521 U.S. at 720; M.L.B. v. S.L.J., 519 U.S. 102, 116
6 Counsel for the State conceded at oral argument that there is a fundamental right to marriage only if defined as "between a man and a woman."
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(1996); Griswold, 381 U.S. at 485-86 (rejecting the view that marriage is only about procreation); Turner, 482 U.S. at 95-96 (describing many other purposes of marriage).
In the context of challenges to similar same-sex marriage bans, the Fourth and Tenth Circuits have held that same-sex marriage is subject to the same constitutional protections as the traditional right to marry.7 See Kitchen, 755 F.3d at 1218; Bostic, 760 F.3d at 377. Those courts applied strict scrutiny to determine whether the marriage laws at issue violated rights to substantive due process and equal protection. See Kitchen, 755 F.3d at 1209-11; Bostic, 760 F.3d at 376. In the course of their analysis, the courts rejected the states' reliance on various justifications for the same-sex marriage bans, including a purported interest in fostering biological reproduction, encouraging optimal childrearing, maintaining gendered parenting styles, maintaining control of the definition of marriage, adhering to the tradition of opposite-sex marriage, protecting the institution of marriage, and encouraging responsible procreation. See Kitchen, 755 F.3d at 1222; Bostic, 760 F.3d at 378.
7 Numerous district courts have also held that same-sex marriage is a fundamental right. See Rosenbrahn v. Daugaard, No. 14CV4081, 2015 WL 144567 (D.S.D. Jan. 12, 2015), appeal docketed, No. 15-1186 (8th Cir. Jan. 28, 2015); Campaign for S. Equal. v. Bryant, No. 3:14CV818, 2014 WL 6680570 at *11 (S.D. Miss. Nov. 25, 2014) (concluding that there is no new fundamental right at issue, rather the question "is whether gay and lesbian people, like any other group of people, have the freedom of choice to marry”); Jernigan v. Crane, No. 4:13CV410 KGB, 2014 WL 6685391 at *16–*17 (E.D. Ark. Nov. 25, 2014), appeal docketed, No. 15-1022 (8th Cir. Jan. 7, 2015); Lawson v. Kelly, No. 14CV622, 2014 WL 5810215 at *6–*8 (W.D. Mo. Nov. 7, 2014), appeal docketed, No. 14-3779 (8th Cir. Dec. 12, 2014); Brenner v. Scott, 999 F. Supp. 2d 1278, 1288–89 (N.D. Fla. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410, 423–24 (M.D. Pa. 2014); De Leon v. Perry, 975 F. Supp. 2d 632, 658–59 (W.D. Tex. 2014). But see Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 922 & n. 13 (E.D. La. 2014); Love v. Beshear, 989 F. Supp. 2d 536, 544 (W.D. Ky. 2014).
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Under the Due Process Clause, a state's legislative enactments are entitled to deference unless they infringe fundamental rights or proceed along suspect lines. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (stating that "equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices," and a "classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”). The modern tiers of scrutiny—rational basis, intermediate scrutiny, and strict scrutiny—are a framework to help courts determine when classifications have the requisite fair and substantial relation to the object of the legislation. See Reed v. Reed, 404 U.S. 71, 76 (1971) (holding unconstitutional a statutory preference for males over females in administering a decedent's estate). Underlying equal protection jurisprudence is the central notion that a classification must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial connection to the object of the legislation so that all persons similarly circumstanced are treated alike. Id. So-called rational basis review applies to classifications based on distinguishing characteristics that the state has the authority to implement where the classification is not viewed as inherently suspect. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
At the other end of the spectrum are classifications that are subject to strict scrutiny. Id. (regarding a classification by race, alienage, or national origin). Those classifications are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and
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antipathy. Id. (noting it would be utterly irrational to limit the franchise on the basis of height, weight or skin color). Like laws that burden fundamental rights, enactments that involve those classifications must be narrowly tailored to achieve a compelling state interest. Parents Involved in Comm. Schs. v. Seattle School Dist. No. 1, 551 U.S. 701, 720 (2007).
Classifications that are sometimes relevant considerations to be taken into account by legislators but generally prove no sensible ground for differentiation are subject to intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 531 (1996) ("VMI"); Cleburne, 473 U.S. at 440-41 (“[l]egislative classifications based on gender also call for a heightened standard of review"); Craig v. Boren, 429 U.S. 190, 197 (1976) (“[S]tatutory classifications that distinguish between males and females are ‘subject to scrutiny under the Equal Protection Clause.’”). To withstand constitutional challenge, "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” VMI, 518 U.S. at 531. Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. Id. at 532 (recounting this country's "long and unfortunate history of sex discrimination"). Laws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals' gender are sex discriminatory and must be subjected to intermediate scrutiny. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131 (1994) (regarding gender-based peremptory challenges, stating "we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate
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invidious, archaic, and overbroad stereotypes about the relative abilities of men and women."); see also Latta 771 F.3d at 484 (Berzon, J., concurring).
A statute or constitutional provision that mandates that women may only marry men and men may only marry women facially classifies on the basis of gender. Latta, 771 F.3d at 480 (Berzon, J., concurring) (noting that "[a] law that facially dictates that a man may do X while a woman may not, or vice versa, constitutes, without more, a gender classification"); Dothard v. Rawlinson, 433 U.S. 321, 332 (1977) (stating that a prison regulation that requires correctional officers to be the same sex as the inmates “explicitly discriminates . . . on the basis of . . . sex.”).8
The “equal application” of these laws to men and women as a class does not remove them from intermediate scrutiny. Latta 771 F.3d at 484; see also Loving, 388 U.S. at 8 (rejecting the argument that anti-miscegenation statutes did not discriminate based on race because the statutes applied equally to African Americans and Caucasians); Johnson v. California, 543 U.S. 499, 506 (2005) (holding California’s racially “neutral” practice of segregating inmates by race to avoid racial violence was a race classification triggering strict scrutiny notwithstanding the fact that the prison did not single out one race for differential treatment); Dothard, 433 U.S. at 332 (noting it made no difference whether women alone were affected or whether men were similarly
8 District courts in the Eighth Circuit agree that gender-based eligibility requirements for marriage constitute sex discrimination that triggers heightened scrutiny. Lawson, 2014 WL 5810215 at *8 (“The State's permission to marry depends on the genders of the participants, so the restriction is a genderbased classification.”); Rosenbrahn, No. 14-cv-4081, 2014 WL 6386903 at *10 (D. S. D. Nov. 14, 2014)(order on motion to dismiss) (stating "[b]ecause South Dakota's law, for example, prohibits a man from marrying a man but does not prohibit that man from marrying a woman, the complaint has stated a plausible claim for relief" for gender discrimination); Jernigan, 2014 WL 6685391 at *23-*24 (finding plaintiffs were treated differently on the basis of their gender).
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limited to the same proscription).9 It makes "no difference to the existence of a sexbased classification whether the challenged law imposes gender homogeneity . . . or gender heterogeneity" because "[e]ither way, the classification is one that limits the affected individuals' opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction." Latta, 771 F.3d at 484
(Berzon, J., concurring). Gender classifications that rest on impermissible stereotypes also violate the
Equal Protection Clause. J.E.B., 511 U.S. at 139 n. 11. “[G]ender-based classifications . . . may be reflective of ‘archaic and overbroad’ generalizations about gender, or based on ‘outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.’” Id. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–07 (1975)); see VMI, 518 U.S. at 533 (explaining that justifications which “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” are inadequate to survive heightened scrutiny); Caban v. Mohammed, 441 U.S. 380, 389 (1979) (rejecting the claim that “any universal difference between maternal and paternal relations at every phase of a child's development”
9 See also Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n. 4 (N.D. Cal. 2012) (explaining that a law prohibiting a woman from marrying a woman restricts on the basis of gender because the prohibition would not apply if either were a man), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013); In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (“the denial of benefits at issue here was sex-based and can be understood as a violation of the . . . prohibition of sex discrimination.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (California's same-sex marriage prohibition restricted choices of marital partner based on gender), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality opinion) (a same-sex marriage ban, “on its face, discriminates based on sex”); Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents “a straightforward case of sex discrimination” because it “establish[es] a classification based on sex”).
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justified sex-based distinctions in adoption laws); Latta, 771 F.3d at 486 (Berzon, J., concurring). "Laws that rest on nothing more than the baggage of sexual stereotypes, i.e., that presume 'the father has the "primary responsibility to provide a home and its essentials," while the mother is the "center of home and family life" ' have been declared constitutionally invalid time after time." Latta, 771 F.3d at 486 (quoting Califano v. Westcott, 443 U.S. 76, 89 (1979)); see Stanton v. Stanton, 421 U.S. 7, 10 (1975) (holding a gender distinction in the age of majority could not survive an equal protection challenge under any test).
In the same-sex marriage context, the Seventh Circuit's Baskin decision and the Ninth Circuit's Latta opinion are firmly rooted in a gender-based equal protection analysis. See Baskin, 766 F.3d at 654 (stating "[d]iscrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority, most familiarly skin color and gender, and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.”); Latta, 771 F.3d at 469 (holding that laws that treat people differently based on sexual orientation are unconstitutional). In Latta, the Ninth Circuit rejected the states' argument that children should be raised by both a male parent and a female parent as "a categorically inadequate justification for discrimination." Latta, 771 F.3d at 469 (also finding it “wholly illogical” to think that same-sex marriage would affect opposite-sex couples' choices with regard to procreation.) It further rejected the state's reliance on considerations of federalism, the argument that allowing same-sex couples to marry would be a threat to religious liberty, and the argument that the marriage ban was
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justified by the state's interest in protecting “the traditional institution of marriage." Id. at 474-75 (noting "[m]odern marriage regimes, however, have evolved considerably; within 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."). In Baskin, the Seventh Circuit rejected the rationale that same-sex couples and their children do not need marriage because same-sex couples cannot produce children, whether intended or unintended as an argument “so full of holes that it cannot be taken seriously.” Baskin, 766 F.3d at 654 (noting that the states' solution to the valid and important problem of unwanted children was not tailored to the problem because denying marital rights to same-sex couples reduces the incentive of such couples to adopt unwanted children). Both the Seventh and Ninth Circuits rejected the purported rationale that states should "go slow" in extending to same-sex couples the right to marry. Latta, 771 F.3d at 474 n. 16; Baskin, 766 F.3d at 668-69; see also DeBoer, 772 F.3d at 434-35 (Daughtrey, J., dissenting)(rejecting "let the people decide" argument and stating "under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite.").
The Seventh Circuit found prohibitions on same-sex adoption particularly troubling. Baskin, 766 F.3d at 671 (noting it was the most arbitrary feature of Wisconsin's treatment of same-sex couples). The refusal to allow same-sex couples to adopt "harms the children, by telling them they don't have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent." Baskin, 766 F.2d at 671; see, e.g., Weber v. Aetna Cas. &
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Sur. Co., 406 U.S. 164, 175 (1972) (invalidating workers’ compensation law that disadvantaged children of unwed parents for “unjust[ly]” penalizing children); see also Latta, 771 F.3d at 474 (“to allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional.")
An asserted preference for opposite sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation. Latta, 771 F.3d at 474 (stating that denying children resources and stigmatizing their families on the basis of procreative channeling is illogical and unjust.) see also Bostic, 760 F.3d at 383 (the most credible scientific researchers agree on the parenting abilities of gay men and lesbians and the positive outcomes for their children).
2. Baker/Bruning In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), aff'd, 409 U.S. 810 (1972), the Minnesota Supreme Court interpreted Minnesota law to require marriage to be between couples of opposite genders. See id. The Minnesota Supreme Court rejected constitutional challenges to its marriage laws and held that such an interpretation did not unconstitutionally deny the plaintiffs the fundamental right to marry, deprive the plaintiffs of liberty or property without due process, or violate the plaintiffs' Equal Protection rights. Id. On appeal, in a one-sentence order, the Supreme Court dismissed "for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810 (1972). Though a summary disposition by the United States Supreme Court is a decision on the merits and has precedential value, the precedential value is not as great as a full-
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fledged opinion because “a summary affirmance is an affirmance of the judgment only, [so] the rationale of the affirmance may not be gleaned solely from the opinion below.” Mandel v. Bradley, 432 U.S. 173, 176, (1977); see, e.g., Hicks v. Miranda, 422 U.S. 332, 344–45 (1975). The Supreme Court affirms only the judgment, and not necessarily the reasoning employed by the lower court. See Mandel, 432 U.S. at 176; Edelman v. Jordan, 415 U.S. 651, 671 (1974) (stating “summary affirmances obviously are of precedential value . . . [but] equally obviously, they are not of the same precedential value as would be an opinion of [the Supreme Court] treating the question on the merits.”).
Doctrinal developments since the Baker case indicate the Supreme Court's summary ruling in Baker is no longer reliable or binding. See Turner, 482 U.S. at 94-95; Zablocki, 434 U.S. at 382 (both discussing the right to marry); Lawrence v. Texas, 539 U.S. 558, 574-76 (2003); Romer v. Evans, 517 U.S. 620, 624 (1996) (addressing laws that draw distinctions between homosexual and heterosexual conduct or homosexuals and heterosexuals as a class). A significant majority of circuit courts have so held. See, e.g., Latta, 771 F.3d at 467 (“As any observer of the Supreme Court cannot help but realize, [same-sex marriage cases] present not only substantial but pressing federal questions”); Baskin, 766 F.3d at 660 (“Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned" and is "no longer authoritative.”); Bostic, 760 F.3d at 373–75 (“[i]n light of the Supreme Court's apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary
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dismissal in that case, we decline to view Baker as binding precedent”); Kitchen,
755 F.3d at 1208 (“Although reasonable judges may disagree on the merits of
the same-sex marriage question, we think it is clear that doctrinal developments
foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial.”)10 Notably, the Supreme Court did not see Baker as an
impediment to its consideration of DOMA in Windsor. Windsor, 133 S. Ct. at
2691-95 (invalidating DOMA without mention of Baker). The lower court decision
affirmed by the Supreme Court in Windsor addressed the Baker preclusion issue,
explaining:
When Baker was decided in 1971, ‘intermediate scrutiny’ was not yet in the Court’s vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet ruled that ‘a classification of [homosexuals] undertaken for its own sake’ actually lacked a rational basis. And, in 1971, the government could lawfully ‘demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.
Windsor v. United States, 699 F.3d 169, 179 (2d Cir. 2012), aff'd, 133 S. Ct. 2675
(2013). Also, the Supreme Court has addressed federal questions involved in the
traditionally state-governed domestic relations arena when infringement of constitutional
rights is at issue. See, e.g., Loving, 388 U.S. at 11; M.L.B. v. S.L.J., 519 U.S. at 124
(involving right to appeal in forma pauperis a termination of parental rights); Lassiter v.
10 District courts are in agreement. See, e.g., Brenner, 999 F. Supp. 2d at 1291 (“intervening doctrinal developments . . . have sapped Baker's precedential force.”); Love, 989 F. Supp. 2d at 541–42; Whitewood, 992 F. Supp. 2d at 419 (finding Baker no longer controlling “due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court.”); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1133 n. 1 (D. Or. 2014) (“[T]he Court's summary order in Baker yields no lasting precedential effect in 2014.”); De Leon, 975 F. Supp. 2d at 647 (“[S]ubsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question.”); McGee v. Cole, 993 F. Supp. 2d 639, 650 (S.D. W. Va. 2014) (“Doctrinal developments since Baker, however, do justify a finding that Baker is nonbinding.”).
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Department of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (involving right to counsel at parental rights termination hearings); and Santosky v. Kramer, 455 U.S. 745, 769 (1982) (holding “clear and convincing” proof standard is constitutionally required in parental termination proceedings).
The Eighth Circuit Court of Appeals addressed the constitutionality of the same amendment at issue in this case in Citizens for Equal Prot. v. Bruning, 455 F.3d at 86470. The plaintiffs therein attacked the constitutional amendment as a violation of their right to access to the political process. Bruning, 455 F.3d at 865 ("Appellees do not assert a right to marriage or same-sex unions. Rather, they seek a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection."); see Rosenbrahn, 2014 WL 6386903, *5-*6 (finding Bruning holding confined to the issue of whether Nebraska's same-sex marriage ban violated a fundamental right to equal access to the political process and did not address the fundamental right to marriage). The Eighth Circuit rejected the argument that strict scrutiny should be applied to the Amendment finding that homosexuals are not a suspect classification. Id. at 866–67 (explaining that "[i]f sexual orientation, like race, were a ‘suspect classification’ for purposes of the Equal Protection Clause, then [the plaintiffs'] focus on the political burden erected by a constitutional amendment would find support” in several Supreme Court cases.). In Bruning, the Eighth Circuit clearly expressed its belief that laws prohibiting same-sex marriage would pass rational
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basis review, but did not consider whether laws prohibiting same-sex marriage would pass intermediate scrutiny as a gender-based classification.11 Id. at 867–68.
C. Nebraska Law
By virtue of the application of Section 29, same-sex couples are not permitted to
adopt children in Nebraska. See Neb. Rev. Stat. § 43-101(1); 43-120; In re adoption of
Luke, 640 N.W.2d 374, 377 (Neb. 2002) (holding a woman could not adopt her
unmarried same-sex partner's child because under the state's adoption statutes, the
second parent was not a step-parent since the parties were not, and could not be,
married). Under federal law, a person's eligibility for spousal Social Security benefits is
determined with reference to the law of the state where the applicant resided at the time of the application or at the time of his or her death. 42 U.S.C. § 416(h)(1)(A)(i);12 20 C.F.R. § 404.345,13 Similarly, the availability of benefits secured by the Family Medical
11 In addition, the Eighth Circuit's position on rational basis review may be considerably weakened by Windsor. See Latta, 771 F.3d at 468 (finding "'Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review'" (quoting SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 474 (9th Cir. 2014))).
12 That statute provides An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died. 42 U.S.C. § 416(h)(1)(A)(i). 13 The regulation states To decide your relationship as the insureds wife or husband, we look to the laws of the State where the insured had a permanent home when you applied for wife's or husband's benefits. To decide your relationship as the insured's widow or widower, we look to the
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Leave Act (FMLA) are determined with reference to the state of a couple's domicile. 29 C.F.R. §§ 825.102, 825.122 (b) (defining “spouse” for purposes of FMLA leave as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized”). 14 Alternative measures under state law that can arguably be taken to protect same-sex couples in committed relationships do not approximate the privileges and responsibilities that inure to persons who can be married under the law. See, e.g., Neb. Rev. Stat. § 30-2606 (entitling a parent to appoint by will a guardian of an unmarried minor, subject to consideration of the minor's wishes after age 14, and subject to court supervision); Neb. Rev. Stat. § 30-2604 (providing a parent or guardian of a minor or incapacitated person by proper execution of a power of attorney may, for a period not to exceed six months, delegate to another person any of his or her powers regarding the care, custody, or property of the minor child or ward, except his or her power to consent to marriage or adoption of the minor or ward).
III. DISCUSSION As a threshold matter, for the reasons stated by other courts cited supra at 2125, the court finds that consideration of this issue is not foreclosed by the Supreme
laws of the State where the insured had a permanent home when he or she died . . . If you and the insured were validly married under state law at the time [of the application or the death], the relationship requirement will be met. 20 C.F.R. § 404.345. 14 The Department of Labor proposes to change the definition of spouse to "the other person to whom an individual is married as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State." See Family and Medical Leave Act - Proposed Rules, 79 Fed. Reg. 36445-01 (proposed June 27, 2014).
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Court's Baker case or the Eighth Circuit's Bruning decision. Baker is no longer binding
precedent and Bruning is not controlling with respect to the issues of whether there is a
fundamental liberty interest in same-sex marriage, or whether laws restricting same-sex
marriage draw impermissible distinctions based on gender.
The court finds the plaintiffs have demonstrated they will likely prevail on the
merits of their claim. The court is persuaded that the Supreme Court will ultimately
endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.15 Under existing precedent,
Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because
the challenged amendment proceeds "along suspect lines," as either gender-based or
gender-stereotype-based discrimination. See Baskin, 766 F. 3d at 654-55; Latta, 771
F.3d at 479-90 (Berzon, J., concurring) (stating Idaho and Nevada same-sex marriage
15 This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)
Also, the Supreme Court itself has telegraphed its leanings. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")
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prohibitions fail as classifications based on gender as well as on sexual orientation because they do not survive the level of scrutiny applicable to such classifications). The court finds it unnecessary, in light of this conclusion, to address the issue of whether the fundamental right to marry extends to same-sex relationships.16
Whether couched in terms of equal protection or due process jurisprudence, the State of Nebraska's purported rationales for its wholesale prohibition of same-sex marriage and refusal to recognize same-sex relationships valid in other states do not withstand constitutional scrutiny. The Amendment explicitly creates a classification based on gender because a person's eligibility to marry, or to have his or her marriage recognized, is based on the gender of the individuals seeking to marry. It facially discriminates based on gender and is subject to an intermediate level of scrutiny. The state must show an important governmental objective and the challenged classification must be substantially related to achievement of those objectives—it must demonstrate an exceedingly persuasive justification for its gender-based action.
The State's contention that the question of whether to restrict marriage to opposite-sex couples should be left to the democratic process is unavailing. The Amendment is not somehow insulated from review because it was enacted by a significant majority. "Minorities trampled on by the democratic process have recourse to
16 "Like all fundamental rights claims, this one turns on how we describe the right." Latta, 771 F.3d at 479 (Reinhardt, J., concurring) (stating he "would also hold that the fundamental right to marriage is properly understood as including the right to marry an individual of one's choice," which would apply to same-sex marriage just as it does to opposite-sex marriage and writing separately to express his view that the same-sex marriage bans implicate substantive due process rights); but see Baskin, 766 F.3d at 656-57 (avoiding the fundamental right issue and confining its attention to the equal protection). In this court's opinion, the fundamental issue in this case is equal protection.
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the courts; the recourse is called constitutional law." Baskin, 766 F.3d at 671. Further, federalism concerns neither justify the ban nor preclude review. Though the Supreme Court in Windsor discussed the states' traditional authority over domestic relations matters, the Court made it clear that this authority is subject to constitutional limits. Windsor, 133 S. Ct. at 2691-92 (stating “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons”) and noting (marriage laws “may vary, subject to constitutional guarantees, from one State to the next” and "[t]he States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits”) (emphasis added).
The rationales presented by the State have uniformly been rejected by courts addressing the issue. See supra at 14-15, 19-21. The State relies essentially on variously phrased arguments that reveal a clear preference for opposite-sex parenting and express an interest in promoting biological reproduction. These arguments are rooted in archaic and overbroad stereotypes about gender roles. The State's supposed purpose in channeling children into stable relationships is not served by a same-sex marriage ban. It is both underinclusive in that it allows heterosexual people to have and rear children in unstable or abusive situations and at the same time prevents committed and stable same-sex couples from adopting and providing loving homes to children.17
17 Addressing the argument that Indiana's same-sex marriage ban was "about successfully raising children,” in the context of what has come to be known as the “irresponsible procreation” theory— that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for “unintended offspring” by channeling their biological procreators into the bonds of matrimony—Judge Posner stated
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Marriage is about more than procreation. The ostensible "procreative" purpose does not hold up in light of the situations presented by infertile, intentionally childless, or elderly couples, all of whom are allowed the benefits and responsibilities of a statesanctioned marital relationship. Even if the State's purported justifications could be seen as important interests, a same-sex marriage ban is simply not substantially related to those interests.
The court agrees with Judge Posner's statement in Baskin that "these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children." Baskin v. Bogan, 766 F.3d at 654 (7th Cir.) cert. denied, 135 S. Ct. 316 (2014). The State essentially pays lip service to marriage as an institution conceived for the purpose of providing a stable family unit, but it ignores the damage done to children by denial of the right to marry to numerous same-sex households.
To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational—it is constitutionally repugnant.
Indiana's government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. Baskin, 771 F.3d at 662.
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The State's emphasis on a biological connection creates a further discriminatory classification—drawing a distinction between biological and adopted children.
In view of the overwhelming majority of decisions on the issue that align with the plaintiffs' position, the court finds it likely the plaintiffs will ultimately prevail in their challenge to the constitutionality of Section 29. Having found that the plaintiffs have shown they are likely to succeed on the merits, the court will consider the other Dataphase factors.
The plaintiffs have shown they will suffer irreparable harm if the State is not enjoined from enforcing the Amendment. This harm goes beyond the inchoate injury of suffering the deprivation of a constitutional right. The plaintiffs, especially plaintiffs Sally and Susan Waters, have shown they will suffer and are presently suffering irreparable harm for which there is no adequate remedy at law. In view of Sally Waters's cancer diagnosis, there is a real possibility that she will not live to see this issue resolved in the courts. The Waters family faces the concrete and certain prospect of denial of widow or survivor benefits as a result of the nonrecognition of their marriage.
Plaintiffs Nickolas Kramer and Jason Cadek have also shown a concrete and particularized injury in the denial of a parent-child relationship with respect to the child they are jointly raising. Jason Cadek suffers the indignity and related anxiety of inability to exercise the responsibilities and privileges that parental status entails (including the ability to consent to medical treatment). He has no legal relationship to the child who knows him as "Daddy." The fact that the non-adoptive parent could obtain a power of attorney to consent for medical treatment is not a realistic solution to the myriad problems presented by denying a person a parental relationship. Similarly, plaintiffs
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Jessica and Kathleen Kallstrom-Schreckengost have shown their child and any potential children they might have or adopt will suffer the denial of a parent-child relationship with respect to one parent under the present system.
Plaintiffs Crystal Von Kampen and Carla Morris-Von Kampen are presently suffering financial harm in the inability of a stepdaughter to obtain veteran-connected tuition credits and have also suffered financial consequences of not being able to obtain a VA loan because their marital status is not recognized. All of the plaintiffs have also demonstrated concrete and significant financial hardships in the form of higher taxes and taxes on health benefits. Because numerous federal benefit programs are dependent on a states' recognition of marital status, all of the plaintiffs potentially suffer financial hardships (some, like lifetime denial of Social Security benefits, quite severe) if the ban is allowed to remain in place.
All of the plaintiffs have further demonstrated psychological harm and stigma, on themselves and on their children, as a result of the nonrecognition of their marriages. The plaintiffs have been denied the dignity and respect that comes with the rights and responsibilities of marriage.
Particularly harmful is the State's concomitant ban on adoption by same-sex couples. The State has advanced no justification, much less an exceedingly persuasive justification, for that policy. The policy has no rational connection to the State's purported purpose of strengthening families and, in fact, it thwarts that purpose by denying deserving children a stable home. All of the plaintiffs have demonstrated harm to their dignity and psyche in being treated as second-class citizens. These plaintiffs
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suffer the same harms as those identified in Windsor. Just as DOMA harmed the plaintiff in Windsor, the plaintiffs herein are harmed.
In contrast, the State has not demonstrated that it will be harmed, in any real sense, by the issuance of an injunction. The State's interest in enforcing its laws diminishes with the strong showing that the same-sex marriage ban is not a legitimate exercise of its traditional authority over domestic relations matters. All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage. The court finds it is in the public's best interest to vindicate the plaintiffs' constitutional rights and enjoin the State's enforcement of its discriminatory marriage laws.
Because the standards for staying the injunction mirror the standards for issuing the injunction, the court's findings of likely success and severe irreparable harm make the court disinclined to stay the injunction. For the reasons stated herein and in the court's denial of an earlier motion for a stay, the court finds the State's oral motion for a stay should be denied.18 However, in an effort to assuage the State's concerns with respect to administrative turmoil, the court will delay the effective date of the injunction.
IV. CONCLUSION
18 That stays have been granted in other cases in this Circuit pending appeal is of no consequence to this determination because those cases did not involve any showing of the sort of irreparable harm these plaintiffs (especially the Waters family) will suffer.
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Nebraska's “Defense of Marriage" Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens. The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court. With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children. Unfortunately, this law inhibits their commendable efforts.
For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender.
It is time to bring this unequal provision to an end. Accordingly:
1. The plaintiffs' motion for a preliminary injunction (Filing No. 10) is granted; 2. The defendant's oral motion for a stay is denied; 3. The defendant's objection to the declaration of Angela Dunne (Filing No. 52) is overruled. 4. A preliminary injunction, effective March 9, 2015, at 8:00 a.m. CDT will issue this date.
Dated this 2nd day of March, 2015
BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge
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United States Court of Appeals
For the Eighth Circuit ___________________________
No. 15-1452 ___________________________
Susan Waters; Sally Waters; Nickolas Kramer; Jason Cadek; Crystal Von Kampen; Carla Morris-Von Kampen; Gregory Tubach; William Roby; Jessica Kallstrom-Schreckengost; Kathleen Kallstrom-Schreckengost; Marjorie Plumb;
Tracy Weitz; Randall Clark; Thomas Maddox
lllllllllllllllllllll Plaintiffs - Appellees
v.
Pete Ricketts, in his official capacity as Governor of Nebraska; Doug Peterson, in his official capacity as Attorney General of Nebraska; Leonard J. Sloup, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; Courtney Phillips, in her official capacity as CEO of the Nebraska Department of Health and Human Services
lllllllllllllllllllll Defendants - Appellants
Dan Nolte, in his official capacity as the Lancaster County Clerk
lllllllllllllllllllll Defendant
------------------------------
Liberty Counsel
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
President of the House of Deputies of the Episcopal Church and the Episcopal Bishops of Missouri and Nebraska; General Synod of the United Church of Christ;
Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College and Jewish Reconstructionist Communities; Union for Reform Judaism; Unitarian
Appellate Case: 15-1452 Page: 1 Date Filed: 08/11/2015 Entry ID: 4304580

8:14-cv-00356-JFB-TDT Doc # 78 Filed: 08/11/15 Page 2 of 5 - Page ID # 928
Universalist Association; Affirmation; Covenant Network of Presbyterians; Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; Methodist Federation for Social Action; More Light Presbyterians; Muslims for Progressive Values; Parity; Reconciling Ministries Network; Reconciling Works: Lutherans for Full Participation; Religious Institute; 24 Employers; American Sociological Association; Howard University School of Law Civil Rights Clinic; Gary J. Gates;
Historians of Marriage; Constitutional Law Scholars; American Psychological Association; Nebraska Psychological Association; American Psychiatric Association; American Academy of Pediatrics; American Association for
Marriage and Family Therapy; Nebraska Association for Marriage and Family Therapy; American Psychoanalytic Association; National Association of Social
Workers; National Association of Social Workers Nebraska Chapter; Family Equality Council; COLAGE; Historians of Antigay Discrimination; Americans
United For Separation of Church and State; National Women's Law Center; Connecticut Women's Education and Legal Fund; Legal Momentum; Legal Voice;
National Association of Women Lawyers; National Partnership for Women and Families; Women's Bar Association of the District of Columbia; Women's Bar Association of Illinois; Women's Law Project; Williams Institute Scholars of
Sexual Orientation and Gender Law
lllllllllllllllllllllAmici on Behalf of Appellee(s) ____________
Appeal from United States District Court for the District of Nebraska - Omaha ____________
Submitted: July 2, 2015 Filed: August 11, 2015
[Published] ____________
Before WOLLMAN, SMITH, and BENTON, Circuit Judges. ____________
PER CURIAM.
-2-
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Plaintiffs are seven same-sex couples seeking to marry in Nebraska or to have their marriage in another state recognized in Nebraska. They also seek state benefits incident to marriage. The district court1 granted Plaintiffs’ motion for a preliminary injunction. It found that Article I, § 29 of the Nebraska Constitution, which denies same-sex couples the right to marry, likely violates the U.S. Constitution’s guarantee of equal protection. Nebraska brings an interlocutory appeal. Having jurisdiction under 28 U.S.C. § 1292(a)(1), this court affirms.
While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015), abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). This court, having stayed the injunction pending appeal, vacated the stay after Obergefell. Nebraska filed a suggestion of mootness and a motion to vacate the preliminary injunction.
Nebraska no longer argues that Plaintiffs are unlikely to succeed on the merits. The challenged provision is unconstitutional. As Obergefell concluded:
[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
Obergefell, 135 S. Ct. at 2604-05. The Supreme Court also noted,
1The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.
-3-
Appellate Case: 15-1452 Page: 3 Date Filed: 08/11/2015 Entry ID: 4304580

8:14-cv-00356-JFB-TDT Doc # 78 Filed: 08/11/15 Page 4 of 5 - Page ID # 930
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Id. at 2607.
Nebraska suggests that Obergefell moots this case. But the Supreme Court specifically stated that “the State laws challenged by Petitioners in these cases are now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477-78 (1995) (limiting relief to the parties before the Court and noting “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants”). The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not Nebraska. See Campaign for S. Equal. v. Bryant, 2015 WL 4032186, at *2 (5th Cir. July 1, 2015) (ordering district court to enter final judgment that Texas laws denying same-sex couples the right to marry are unconstitutional); Conde-Vidal v. Rius-Armendariz, No. 14-2184 (1st Cir. July 8, 2015) (judgment vacating and remanding district court judgment that dismissed challenge to law denying same-sex marriage). The Court also did not consider state benefits incident to marriage, which were addressed by Plaintiffs and the district court here. Nebraska has not repealed or amended the challenged constitutional provision.
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Appellate Case: 15-1452 Page: 4 Date Filed: 08/11/2015 Entry ID: 4304580

8:14-cv-00356-JFB-TDT Doc # 78 Filed: 08/11/15 Page 5 of 5 - Page ID # 931
Nebraska’s assurances of compliance with Obergefell do not moot the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). These assurances may, however, impact the necessity of continued injunctive relief. The district court should consider Nebraska’s assurances and actions and the scope of any injunction, based on Obergefell and Federal Rule of Civil Procedure 65(d). Until then, if Nebraska is unclear on its obligations under the preliminary injunction, it may clarify them with the district court. See S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (preliminary injunctions are reviewed for abuse of discretion, reversing when they are based on “clearly erroneous factual findings or erroneous legal conclusions”). See also Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014) (finding injunction with language identical to the injunction here is not vague).
The preliminary injunction is affirmed and the case remanded for entry of final judgment on the merits in favor of the plaintiffs. All pending motions are denied.
______________________________
-5-
Appellate Case: 15-1452 Page: 5 Date Filed: 08/11/2015 Entry ID: 4304580

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRISVON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROMSCHRECKENGOST, KATHLEEN KALLSTROM-SCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, THOMAS MADDOX,
Plaintiffs,
v.
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; LEONARD J. SLOUP, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; JOSEPH ACIERNO, in his official capacity as Acting CEO of the Nebraska Department of Health and Human Services; and DAN NOLTE, in his official capacity as the Lancaster County Clerk;
Defendants.

8:14CV356 INJUNCTION

Pursuant to the Memorandum and Order entered this date, IT IS ORDERED that all relevant state officials are ordered to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage. IT IS FURTHER ORDERED that this order will be effective on Monday, March 9, 2015, at 8:00 a.m. CDT. Dated this 2nd day of March, 2015
BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRISVON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROMSCHRECKENGOST, KATHLEEN KALLSTROM-SCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, THOMAS MADDOX,
Plaintiffs,
v.
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; LEONARD J. SLOUP, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; DAN NOLTE, in his official capacity as the Lancaster County Clerk; and COURTNEY PHILLIPS, in her official capacity as CEO of the Nebraska Department of Health and Human Services;
Defendants.

8:14CV356 PERMANENT INJUNCTION

Pursuant to the Memorandum and Order entered this date, IT IS ORDERED that all relevant state officials are ordered to treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage. IT IS FURTHER ORDERED that this order will be effective on Thursday, February 4, 2016 at 4:00 p.m. CDT. Dated this 4th day of February, 2016
BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRIS-VON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROM-SCHRECKENGOST, KATHLEEN KALLSTROMSCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, AND THOMAS MADDOX,
Plaintiffs,
vs.
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; DAN NOLTE, in his official capacity as the Lancaster County Clerk; COURTNEY PHILLIPS, in her official capacity as CEO of the Nebraska Department of Health and Human Services; and TONY FULTON, in his official capacity as Tax Commissioner of the Nebraska Department of Revenue;
Defendants.

8:14CV356 ORDER

This matter is before the court on the status report of the parties, Filing No. 104. The court is advised that the parties have resolved all pending matters, including the payment of attorney fees and costs. Id. This court earlier declared Article I, § 29 of the Nebraska Constitution unconstitutional in light of Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and granted the plaintiffs a permanent injunction. Filing No. 96, Memorandum and Order at 12-13; Filing No. 97, Permanent Injunction. With respect to the thenremaining issue of birth certificates, the court stated that it was of the opinion that the State, following the entry of the final injunction, would address the issue and “[i]f that

issue is not addressed to the plaintiffs’ satisfaction, the Court will retain jurisdiction over any claims that arise out of this lawsuit and the permanent injunction, the Obergefell case, and the right to marry the person of your choosing and rights incident to the right to marry as they relate to this lawsuit." Filing No. 96, Memorandum and order at 11-12. It appears the issue has been resolved to the plaintiffs' satisfaction.
Having been advised that all pending matters, including attorney fees and costs, have been resolved the court finds, for docket control purposes, this action can be closed. Of course, the court automatically retains jurisdiction to enforce its injunction, should any future problems arise. See id. at 11 n.3. Accordingly,
IT IS ORDERED: 1. The Clerk of Court is directed to close this case. Dated this 14th day of June, 2016
BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRIS-VON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROM-SCHRECKENGOST, KATHLEEN KALLSTROMSCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, AND THOMAS MADDOX,
Plaintiffs,
vs.
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; LEONARD J. SLOUP, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; DAN NOLTE, AND in his official capacity as the Lancaster County Clerk; and COURTNEY PHILLIPS, in her official capacity as CEO of the Nebraska Department of Health and Human Services;
Defendants.

8:14CV356 MEMORANDUM AND ORDER

This matter is before the Court on the plaintiffs’ motion for summary judgment, Filing No. 68, on the defendants’ motion for summary judgment, Filing No. 72, and on the plaintiffs’ motion for leave to file supplement to motion for summary judgment, Filing No. 87. This is an action for violation of civil rights brought pursuant to 42 U.S.C. § 1983. The plaintiffs seek permanent declaratory and injunctive relief for violation of rights protected by the Fourteenth Amendment by virtue of Nebraska’s exclusion of same-sex couples from marrying and its prohibition against recognizing the marriages of same-sex couples validly entered into in other jurisdictions under Neb. Const. art. I, §

29 (hereinafter, "Section 29" or "the Amendment"). Plaintiffs ask this Court to grant their summary judgment motion and permanently enjoin enforcement of Nebraska’s exclusion of same-sex couples from marrying and its refusal to recognize the marriages of same-sex couples. Defendants ask the Court to grant their summary judgment motion and to not issue a permanent preliminary injunction and to refuse to declare Section 29 unconstitutional. The defendants make this request based on their argument that the issue is moot and this Court has no jurisdiction.
BACKGROUND Plaintiffs initially filed this action requesting a preliminary injunction in this case. The Court granted that motion. Filing No. 54 and Filing No. 55. The Court concluded that all of the preliminary injunction factors set forth in the Dataphase case – including likelihood of success on the merits – supported granting the requested relief. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). The preliminary injunction ordered by the Court provided that “all relevant state officials are ordered to treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” Filing No. 55, Injunction, at 1. Thereafter, defendants appealed the Court’s order and filed an Emergency Motion for Stay Pending Appeal with the Eighth Circuit Court of Appeals. The Eighth Circuit then issued an order granting defendant’s motion to stay. The Eighth Circuit decided to defer any oral arguments or decision until the Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015). On June 26, 2015, the Supreme Court decided the Obergefell case and determined that denying same-sex couples marriage
2

licenses and refusing to recognize marriages entered into by same-sex couples violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. On that same day, the defendants filed a suggestion of mootness with the Eighth Circuit, and filed multiple documents stating that it would comply with the requirements of Obergefell. Defendants argue the Eighth Circuit has not yet ruled on that suggestion. Defendants further contend that there is now no case or controversy to decide, and further contends that the Eleventh Amendment forbids plaintiffs from obtaining a declaratory judgment establishing the State’s past liability. Plaintiffs argue defendants’ motion for mootness is irrelevant, as no injunction has been entered yet permanently enjoining enforcement of the Nebraska law in question.
STANDARD OF REVIEW On a motion for summary judgment, the question before the Court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004). The burden of establishing the nonexistence of any genuine issue of material fact is on the moving
3

party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,’ and must identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323).
If the movant does so, “the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). On a motion for summary judgment, the “‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.’” Id. (quoting Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009)). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. The nonmoving party “‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id.
The plain language of Rule 56(e) allows the court, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), to (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary
4

judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order. Fed. R. Civ. P. 56(e).
LAW The issuance of a preliminary injunction depends upon a “flexible” consideration of the probability that the moving party will succeed on the merits of the claim, the threat of irreparable harm to the moving party, balancing that harm with any injury an injunction would inflict on other interested parties; and the effect on the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). Evaluating the likelihood of success on the merits calls for a predictive judgment about how a court is likely to rule. See, e.g., Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012). Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, district courts must make a threshold finding that a party is likely to prevail on the merits. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). In such cases, it is only after finding that a party is likely to prevail on the merits that a district court should weigh the other Dataphase factors. Id. at 732. “‘The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’" Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)). A plaintiff must demonstrate "that remedies available at law, such as monetary damages, are inadequate to compensate for that injury." eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The question of irreparable injury is
5

sometimes tied to the merits of a constitutional claim. See, e.g. Kroupa v. Nielsen, 731 F.3d 813, 820 (8th Cir. 2013) (noting in a deprivation of procedural due process case that damage to one's reputation is a harm that cannot be remedied by a later award of money damages, the threat of reputational harm may form the basis for preliminary injunctive relief). If a party can establish a sufficient likelihood of success on the merits of a constitutional claim, "the party will also have established irreparable harm as the result of the deprivation." Waters v. Ricketts, 48 F.Supp.3rd. 1271, 1278 (D. Neb. 2015); See Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").
A showing of irreparable harm does not automatically mandate a ruling in the plaintiff’s favor; the court must proceed to balance the harm to the defendant in granting the injunction. Hill v. Xyquad, Inc., 939 F.2d 627, 630-31 (8th Cir. 1991). The state has an interest in ensuring its legitimate laws are followed. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (staying injunction). However, the protection of constitutionally protected rights necessarily serves the public interest. Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (“[I]t is always in the public interest to protect constitutional rights.”), overruled on other grounds by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). In Windsor, the Supreme Court identified several harms flowing from Defense of Marriage Act’s same-sex marriage ban: it "humiliates of tens of thousands of children now being raised by samesex couples," it also brings "financial harm to children of same-sex couples [by raising] the cost of health care for families by taxing health benefits provided by employers to
6

their workers' same-sex spouses," and it "denies or reduces benefits allowed to families
upon the loss of a spouse and parent, benefits that are an integral part of family
security." United States v. Windsor, 133 S. Ct. 2675, 2694-96 (2013); see also Latta v.
Otter, 771 F.3d 456, 476 (9th Cir. 2014) (finding "Idaho and Nevada's marriage laws, by
preventing same-sex couples from marrying and refusing to recognize same-sex
marriages celebrated elsewhere, impose profound legal, financial, social and psychic
harms on numerous citizens of those states.").
DISCUSSION
The argument set forth by the defendants that the Eighth Circuit has retained
jurisdiction is without merit. The Eighth Circuit stated:
The Court also did not consider state benefits incident to marriage, which were addressed by Plaintiffs and the district court here. Nebraska has not repealed or amended the challenged constitutional provision.
Nebraska’s assurances of compliance with Obergefell do not moot the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). These assurances may, however, impact the necessity of continued injunctive relief. The district court should consider Nebraska’s assurances and actions and the scope of any injunction, based on Obergefell and Federal Rule of Civil Procedure 65(d). Until then, if Nebraska is unclear on its obligations under the preliminary injunction, it may clarify them with the district court. See S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (preliminary injunctions are reviewed for abuse of discretion, reversing when they are based on “clearly erroneous factual findings or erroneous legal conclusions”). See also Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014) (finding injunction with language identical to the injunction here is not vague).
The preliminary injunction is affirmed and the case remanded for entry of final judgment on the merits in favor of the plaintiffs. All pending motions are denied.
7

Waters v. Ricketts, No. 15-1452 (8th Cir. August 11, 2015), at 4-5 (Filing No. 78). The Eighth Circuit then remanded the case to this Court for proceedings consistent with its opinion. Filing No. 79 and Filing No. 80. The mandate issued on September 24, 2015. Filing No. 84. Clearly, the case is remanded to this Court for further determination. Any other interpretation is dilatory at best.
Next, the Court finds the claims are not moot. The State lists a number of changes that have occurred as a result of the Obergefell decision. See Filing No. 73, pp. 14-21. The State argues that Obergefell specifically addressed all issues affecting this case, and further contends that all plaintiffs have received the relief they requested. The State relies on the following cases to support its arguments: Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir. 1994) (claim moot where challenged statute was declared unconstitutional in companion case); Thayer v. Chiczewski, 705 F.3d 237, 256–57 (7th Cir. 2012) (claim for declaratory and injunctive relief moot in light of Seventh Circuit's invalidation of challenged law in another case); Eagle Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir. 1989) (claim moot where state supreme court had declared challenged statute unconstitutional).
However, the Court notes that these cases are dissimilar. Unlike the cases cited herein by the defendants, no Court has yet declared Section 29 unconstitutional. As plaintiffs argue, defendants have not shown that it is “absolutely clear that [plaintiffs] no longer ha[ve] any need of the judicial protection that [they] sought.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 224 (2000). It has not been repealed and is still published as part of the Nebraska Constitution. See Neb. Const. art. I, § 29. The
8

Supreme Court has stated that “[i]t is no small matter to deprive a litigant of the rewards
of its efforts.” Adarand Constructors, Inc., 528 U.S. at 224. The Obergefell case struck
down the marriage exclusions in Michigan, Kentucky, Ohio, and Tennessee. While
precedent does in fact dictate the result in the case before this Court, Section 29 has
not specifically been declared unconstitutional. The Court agrees with the plaintiffs. The
decision by the United States Supreme Court in Obergefell does not provide the
certainty plaintiffs requested from this Court. Accordingly, any argument that this issue
is moot is unfounded and without merit.
Further, as an example of continuing issues, the plaintiffs contend that recently
the Department of Health and Human Services has refused to issue birth certificates1 to
same-sex couples, and are instead listing the woman who has the baby as the only
parent.2 The Court agrees with the plaintiffs. Defendants’ position regarding birth
certificates does give plaintiffs cause to be concerned about other protections available
1 This Court previously determined that plaintiffs can make this claim. See Filing No. 90. The Court stated: “The court finds the plaintiffs' complaint broadly alleges denial of rights, responsibilities, and incidents of marriage and can be construed as encompassing the birth-certificate issue presented in the supplementary materials. Moreover, if the issue had not been presented, the plaintiffs would be granted leave to amend their complaint to include it.” Id. at 3.
2 Plaintiffs request that this Court likewise issue an injunction making it clear that these birth certificates must be provided to married same-sex couples, just as it would to married heterosexual couples. Nebraska law provides that if a mother was married at the time of conception or birth, “the name of the husband shall be entered on the [birth] certificate as the father of the child” absent a court order or affidavit from the mother to the contrary. Neb. Rev. Stat. § 71-640.01. The Court does not have sufficient evidence before it to make such a ruling at this time. The Court will likely need to conduct an evidentiary hearing or mini-trial and would likewise need to review the constitutionality of additional Nebraska statutes. However, with the explicit ruling that Section 29 in question is illegal, hopefully this will solve the problem. If, however, plaintiff continues to have similar issues, the parties are free to file a further motion or appropriate document in this case. The Court will retain jurisdiction for the purposes of enforcing this injunction. Obergefell clearly held that marriage prohibitions and related issues “are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S.Ct. at 2605.
9

to same-sex couples related to the right to marry, and those benefits and related rights that support marriage and family.
Finally, the State contends that plaintiffs’ requested declaration that Section 29 be declared unconstitutional on “past liability” is barred by sovereign immunity. The State relies on a case wherein this Court stated:
Furthermore, the doctrine of Ex Parte Young, 209 U.S. 123 (1908), holds that the Eleventh Amendment does not bar suits for prospective injunctive relief against state officials in their official capacity. However, while a suit to enjoin state officials in their official capacity may proceed if the complaint alleges an ongoing violation of federal law, and seeks relief properly characterized as prospective, a declaratory judgment establishing past liability of the State is nevertheless forbidden by the Eleventh Amendment. Verizon Maryland, Inc. v. Public Service Com'n of Maryland, 535 U.S. 635, 646 (2002).
Widtfeldt v. Holt Cnty. Bd. of Equalization, No. 8:05CV8, 2006 WL 2265522 at *4 (D. Neb. 2006) aff'd, 273 F. App'x 573 (8th Cir. 2008). “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs (TOC), Inc., 528 U.S. 167, 190 (2000); see also Adarand Constructors, Inc. v. Slater, 528 U.S. at 222 (this “heavy burden” is on the party asserting mootness); Strutton v. Meade, 668 F.3d 549, 556 (8th Cir. 2012).
Plaintiffs disagree arguing that they are seeking prospective relief only. They simply want their claims for declaratory and injunctive relief permanently enjoined. The Court agrees with the plaintiff. The plaintiffs are not asking for a decision on past
10

liability. They are indeed asking for a permanent injunction to ensure their current and future rights are protected.
Applying all of these arguments to the Dataphase factors, the Court concludes as follows. First, with regard to a decision on the merits, the Court previously found that it was likely plaintiffs would prevail. Since that time, the Supreme Court of the United States decided Obergefell. The Eighth Circuit now agrees also. See Filing Nos. 78, 79, 80, 82 and 84. Clearly, there is no argument now that plaintiffs have won on the merits.
Second, the plaintiffs clearly have suffered irreparable harm from the passage of Section 29. Again, the plaintiffs are pointing to birth right and certificate issues involved in same-sex marriages as proof of this continued harm. Thus, they continue to experience harm. The Court finds plaintiffs are at risk of more and additional deprivations until Section 29 is declared unconstitutional and its enforcement enjoined.
Third, there is no dispute that the plaintiffs have shown and experienced concrete and particularized injury. It appears based on the affidavits and argument submitted by the plaintiffs to date, that such injury is continuing. Filing No. 87, Attachments 1-8.
Finally, the State has not demonstrated that it will be harmed by a declaration that Section 29 is unconstitutional and a permanent grant of this injunction.
With regard to the issue of birth certificates, the Court finds it has jurisdiction over this issue as previously stated. However, the Court is of the opinion that the State, following the entry of this final injunction, will address that issue. If that issue is not addressed to the plaintiffs’ satisfaction, the Court will retain jurisdiction3 over any claims
3 See Picon v. Morris, 933 F.2d 660, 662 (8th Cir.1991) (“[W]hen a court issues an injunction, it automatically retains jurisdiction to enforce it.”); United States v. Cargill, Inc., 2011 WL 2306010 *1 (8th Cir. 2011) (“[A] district court retains the inherent authority to modify or enforce a consent decree.”);
11

that arise out of this lawsuit and the permanent injunction, the Obergefell case, and the right to marry the person of your choosing and rights incident to the right to marry as they relate to this lawsuit. As ordered below, all relevant state officials are ordered to treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.
THEREFORE, IT IS ORDERED THAT: 1. Plaintiffs’ motion for summary judgment, Filing No. 68, is granted as set forth herein; 2. Defendants’ motion for summary judgment, Filing No. 72, is denied; 3. Plaintiffs’ motion for leave to file supplement to motion for summary judgment, Filing No. 87, is granted; 4. The Court declares Article I, § 29 of the Nebraska Constitution unconstitutional in light of Obergefell v. Hodges, 135 S. Ct. 2584 (2015). A permanent injunction is hereby entered prohibiting the enforcement of Section 29 of the Nebraska Constitution. A separate order is filed in conjunction with this memorandum and order;
Lorillard Tobacco Co. v. Chester, Wilcox & Saxbe, 589 F.3d 835, 847 (6th Cir. 2009) (same); Peacock v. Thomas, 516 U.S. 349, 356–57 (1996) (describing “a federal court's inherent power to enforce its judgments”); McCall–Bey v. Franzen, 777 F.2d 1178, 1183 (7th Cir.1985) (the district court's enjoining of the state-court litigation, therefore, is a proper means of enforcing its previously entered permanent injunction.); Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir. 1995) (“District courts do, and must, have the authority to punish contemptuous violations of their orders.”).
12

5. Effective immediately, IT IS ORDERED that all relevant state officials shall treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage;
6. The Court will retain jurisdiction over the enforcement of the permanent injunction and issues related to this lawsuit for a period of at least three years. If a further extension is merited, the parties may file a motion with the Court.
Dated this 4th day of February, 2016 BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge
13

 
 Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 1 of 19
CLOSED,NEBRASKA−DEFENDANT,NEBRASKADOCKET,TRIAL−OMAHA
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:14−cv−00356−JFB−TDT

Waters et al vs. Ricketts et al Assigned to: Senior Judge Joseph F. Bataillon Referred to: Magistrate Judge Thomas D. Thalken Case in other court: USCA−8th Circuit, 15−01452 Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 11/17/2014 Date Terminated: 02/04/2016 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Susan Waters

represented by Amy A. Miller AMERICAN CIVIL LIBERTIES UNION FOUNDATION − NEBRASKA 941 O Street Suite 706 Lincoln, NE 68508 (402) 476−8091 Fax: (402) 476−8135 Email: amiller@aclunebraska.org ATTORNEY TO BE NOTICED

Angela J. Dunne KOENIG, DUNNE LAW FIRM 1266 South 13th Street Omaha, NE 68108−3502 (402) 346−1132 Fax: (402) 346−0151 Email: angela@nebraskadivorce.com ATTORNEY TO BE NOTICED

Joshua Block AMERICAN CIVIL LIBERTIES UNION FOUNDATION − NEW YORK 125 Broad Street 18th Floor New York, NY 10004−2400 (212) 549−2584 Fax: (212) 549−2650 Email: jblock@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION − NEW YORK 125 Broad Street 18th Floor New York, NY 10004−2400 (212) 549−2584 Fax: (212) 549−2650 Email: lcooper@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig KOENIG, DUNNE LAW FIRM 1266 South 13th Street Omaha, NE 68108−3502 (402) 346−1132 Fax: (402) 346−0151

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 2 of 19

Email: susan@nebraskadivorce.com ATTORNEY TO BE NOTICED

Plaintiff Sally Waters

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nickolas Kramer

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jason Cadek

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 3 of 19

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Crystal Von Kampen

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carla Morris−Von Kampen

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gregory Tubach

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff William Roby
Plaintiff Jessica Kallstrom−Schreckengost
Plaintiff Kathleen Kallstrom−Schreckengost

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED
represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED
Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED
represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED
Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 5 of 19

Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marjorie Plumb

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tracy Weitz

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 6 of 19

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Randall Clark

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thomas Maddox

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

Angela J. Dunne (See above for address) ATTORNEY TO BE NOTICED

Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan A. Koenig (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Harold Wilson TERMINATED: 01/07/2015
Intervenor Plaintiff

represented by Harold Wilson 37418 SPR−LINC CORR CTR, Lincoln Correctional Center P.O. Box 22800 Lincoln, NE 68542−2800 PRO SE

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 7 of 19

Gracy Sedlak TERMINATED: 01/07/2015

represented by Gracy Sedlak Address Updated 5/9/2013 1035 Hartley Lincoln, NE 68521 (402) 641−4107 PRO SE

V. Defendant Dave Heineman in his official capacity as Governor of Nebraska TERMINATED: 01/09/2015
Defendant Jon Bruning in his official capacity as Attorney General of Nebraska TERMINATED: 01/09/2015
Defendant Kim Conroy in her official capacity as Tax Commissioner of the Nebraska Department of Revenue TERMINATED: 01/09/2015

represented by Danielle L. Jones RITSEMA, LYON LAW FIRM − OMAHA 17330 West Center Road Suite 110−355 Omaha, NE 68130 (402) 201−2326 Fax: (402) 904−8425 Email: danielle.jones@ritsema−lyon.com TERMINATED: 12/30/2015
David A. Lopez ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−3297 Email: dave.lopez@nebraska.gov ATTORNEY TO BE NOTICED
Ryan S. Post ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−1814 Fax: (402) 471−3297 Email: ryan.post@nebraska.gov ATTORNEY TO BE NOTICED
represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015
David A. Lopez (See above for address) ATTORNEY TO BE NOTICED
Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015
David A. Lopez

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 8 of 19

(See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kerry Winterer TERMINATED: 01/09/2015

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dan Nolte TERMINATED: 01/09/2015

represented by Richard C. Grabow LINCOLN ELECTRIC SYSTEM P.O. Box 80869 Lincoln, NE 68501−0869 (402) 473−3200 Fax: (402) 475−9759 Email: rgrabow@les.com ATTORNEY TO BE NOTICED

Defendant
Pete Ricketts in his official capacity as Governor of Nebraska

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015

David T. Bydalek ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−3297 Email: dave.bydalek@nebraska.gov ATTORNEY TO BE NOTICED

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2686 Fax: (402) 471−3591 Email: james.smith@nebraska.gov ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address)

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 9 of 19

ATTORNEY TO BE NOTICED

Defendant
Doug Peterson in his official capacity as Attorney General of Nebraska

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015

David T. Bydalek (See above for address) ATTORNEY TO BE NOTICED

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Defendant
Leonard J. Sloup in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue TERMINATED: 02/29/2016

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015
David T. Bydalek (See above for address) ATTORNEY TO BE NOTICED

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joseph Acierno in his official capacity as Acting CEO of the Nebraska Department of Health and Human Services TERMINATED: 05/12/2015

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015
David T. Bydalek (See above for address) ATTORNEY TO BE NOTICED

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address)

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 10 of 19

ATTORNEY TO BE NOTICED

Defendant
Dan Nolte in his official capacity as the Lancaster County Clerk

represented by James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Defendant
Courtney Phillips in her official capacity as CEO of the Nebraska Department of Health and Human Services

represented by Danielle L. Jones (See above for address) TERMINATED: 12/30/2015
David T. Bydalek (See above for address) ATTORNEY TO BE NOTICED

David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Defendant
Tony Fulton in his official capacity as Tax Commissioner of the Nebraska Department of Revenue

represented by David T. Bydalek (See above for address) ATTORNEY TO BE NOTICED
David A. Lopez (See above for address) ATTORNEY TO BE NOTICED

James D. Smith (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/17/2014
11/17/2014 11/17/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0867−2826150), by Attorney Angela J. Dunne on behalf of Carla Morris−Von Kampen, Marjorie Plumb, Nickolas Kramer, Gregory Tubach, Jessica Kallstrom−Schreckengost, Tracy Weitz, Sally Waters, Thomas Maddox, William Roby, Susan Waters, Jason Cadek, Randall Clark, Kathleen Kallstrom−Schreckengost, Crystal Von Kampen(Dunne, Angela) (Entered: 11/17/2014)
2 TEXT NOTICE OF JUDGES ASSIGNED: Senior Judge Joseph F. Bataillon and Magistrate Judge Thomas D. Thalken assigned. (ELE, ) (Entered: 11/17/2014)
3 ATTORNEY LETTER by Clerk that Attorney Joshua Block has not registered for admittance to practice registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (ELE, ) (Entered: 11/17/2014)

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 11 of 19

11/17/2014 11/21/2014 11/21/2014 11/21/2014 11/21/2014 12/02/2014 12/02/2014
12/02/2014 12/02/2014 12/02/2014 12/02/2014

4 ATTORNEY LETTER by Clerk that Attorney Leslie Cooper has not registered for admittance to practice registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (ELE, ) (Entered: 11/17/2014)
5 Summons Requested as to Jon Bruning regarding Complaint, 1 . (Dunne, Angela) (Entered: 11/21/2014)
6 Summons Requested as to Dave Heineman regarding Complaint, 1 . (Dunne, Angela) (Entered: 11/21/2014)
7 Summons Requested as to Kim Conroy regarding Complaint, 1 . (Dunne, Angela) (Entered: 11/21/2014)
8 Summons Issued as to defendant(s) Jon Bruning, Kim Conroy, Dave Heineman YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (NMW) (Entered: 11/21/2014)
9 AMENDED COMPLAINT against Defendant All Defendants, by Attorney Angela J. Dunne on behalf of Marjorie Plumb, Gregory Tubach, Sally Waters, Susan Waters, Randall Clark, Carla Morris−Von Kampen, Nickolas Kramer, Jessica Kallstrom−Schreckengost, Tracy Weitz, Thomas Maddox, William Roby, Jason Cadek, Kathleen Kallstrom−Schreckengost, Crystal Von Kampen(Dunne, Angela) (Entered: 12/02/2014)
10 MOTION for Preliminary Injunction by Attorney Angela J. Dunne on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz. (Attachments: # 1 Supplement Brief, # 2 Exhibit Index of Evidence, # 3 Exhibit Declaration of Susan Waters, # 4 Exhibit Declaration of Sally Waters, # 5 Exhibit Declaration of Nickolas Kramer, # 6 Exhibit Declaration of Jason Cadek, # 7 Exhibit Declaration of Crystal Von Kampen, # 8 Exhibit Declaration of Carla Morris−Von Kampen, # 9 Exhibit Declaration of Gregory Tubach, # 10 Exhibit Declaration of William Roby, # 11 Exhibit Declaration of Jessica Kallstrom−Schreckengost, # 12 Exhibit Declaration of Kathleen Kallstrom−Schreckengost, # 13 Exhibit Declaration of Marjorie Plumb, # 14 Exhibit Declaration of Tracy Weitz, # 15 Exhibit Declaration of Randall Clark, # 16 Exhibit Declaration of Thomas Maddox)(Dunne, Angela) (Entered: 12/02/2014)
11 Summons Requested as to Dan Nolte regarding Motion for Preliminary Injunction,,,, 10 , Amended Complaint, 9 , Complaint, 1 . (Dunne, Angela) (Entered: 12/02/2014)
12 Summons Requested as to Kerry Winterer regarding Motion for Preliminary Injunction,,,, 10 , Amended Complaint, 9 , Complaint, 1 . (Dunne, Angela) (Entered: 12/02/2014)
13 Summons Issued as to defendant(s) Dan Nolte, Kerry Winterer YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (NMW) (Entered: 12/02/2014)
14 APPLICATION/ORDER admitting pro hac vice Attorney Joshua Block for Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz. Ordered by Deputy Clerk. (MKR) (Entered: 12/02/2014)

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 12 of 19

12/02/2014
12/02/2014 12/02/2014 12/02/2014 12/05/2014 12/08/2014
12/10/2014 12/10/2014 12/12/2014 12/15/2014 12/17/2014 12/17/2014 12/17/2014 12/18/2014 12/29/2014
12/29/2014

15 APPLICATION/ORDER admitting pro hac vice Attorney Leslie Cooper for Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters and Tracy Weitz. Ordered by Deputy Clerk. (MKR) (Entered: 12/02/2014)
16 SUMMONS Returned Executed upon defendant Jon Bruning on 11/24/2014. (Dunne, Angela) (Entered: 12/02/2014)
17 SUMMONS Returned Executed upon defendant Dave Heineman on 11/24/2014. (Dunne, Angela) (Entered: 12/02/2014)
18 SUMMONS Returned Executed upon defendant Kim Conroy on 11/24/2014. (Dunne, Angela) (Entered: 12/02/2014)
19 MOTION for Extension of Time to File a Responsive Pleading by Attorney David A. Lopez on behalf of Defendants Jon Bruning, Kim Conroy, Dave Heineman, Kerry Winterer.(Lopez, David) (Entered: 12/05/2014)
20 TEXT ORDER granting 19 the defendants' Motion to Extend Time. Counsel should make special note of the changes to NECivR 6.1, which no longer governs the extension sought by the defendants. Nevertheless, pursuant to Fed. R. Civ. P. 6(b), good cause appears to allow the defendants an extension of time until January 20, 2015, to answer or otherwise respond to the plaintiffs' Amended Complaint 9 . Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 12/08/2014)
21 SUMMONS Returned Executed upon defendant Dan Nolte on 12/3/2014. (Dunne, Angela) (Entered: 12/10/2014)
22 SUMMONS Returned Executed upon defendant Kerry Winterer on 12/3/2014. (Dunne, Angela) (Entered: 12/10/2014)
23 TEXT ORDER Setting Hearing on MOTION for Preliminary Injunction 10 . A Motion Hearing is set for 1/29/2015 at 09:00 AM in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon.Ordered by Senior Judge Joseph F. Bataillon. (TCL ) (Entered: 12/12/2014)
24 MOTION to Intervene on behalf of Intervenor Plaintiffs Harold Wilson and Gracy Sedlak.(MKR) (Entered: 12/17/2014)
25 NOTICE of Change of Address of Danielle L. Jones by Attorney Danielle L. Jones on behalf of Defendants Jon Bruning, Kim Conroy, Dave Heineman, Kerry Winterer (Jones, Danielle) (Entered: 12/17/2014)
26 MOTION to Extend Time to Respond to Motion 10 for Preliminary Injunction by Attorney David A. Lopez on behalf of Defendants Jon Bruning, Kim Conroy, Dave Heineman, Kerry Winterer.(Lopez, David) (Entered: 12/17/2014)
27 BRIEF in support of MOTION to Extend Time to Respond to Motion 10 for Preliminary Injunction 26 by Attorney David A. Lopez on behalf of Defendants Jon Bruning, Kim Conroy, Dave Heineman, Kerry Winterer.(Lopez, David) (Entered: 12/17/2014)
28 TEXT ORDER granting 26 defendants' Motion to Extend Time to Respond to Motion for Preliminary Injunction until January 22, 2015. Ordered by Senior Judge Joseph F. Bataillon. (TCL ) (Entered: 12/18/2014)
29 OBJECTION to Motion to Intervene by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz.(Miller, Amy) (Entered: 12/29/2014)
30 BRIEF in support of Opposition to Motion to Intervene by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz.(Miller, Amy) (Entered:

Case: 8:14-cv-356 As of: 03/14/2017 06:15 PM CDT 13 of 19

12/31/2014 01/02/2015 01/05/2015 01/05/2015 01/07/2015
01/08/2015 01/09/2015
01/12/2015 01/20/2015 01/21/2015 01/21/2015 01/21/2015 01/22/2015 01/22/2015
01/23/2015

12/29/2014)
31 TEXT ORDER SETTING HEARING: Telephone Conference regarding the January 29, 2015 preliminary injunction hearing is set for 1/13/2015 at 09:00 AM in Chambers before Senior Judge Joseph F. Bataillon. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 12/31/2014)
32 SUMMONS Returned Executed upon defendant Dan Nolte on 12/19/2014. (Dunne, Angela) (Entered: 01/02/2015)
33 NOTICE of Appearance of Limited Participation by Attorney Richard C. Grabow on behalf of Defendant Dan Nolte (Grabow, Richard) (Entered: 01/05/2015)
34 INTERNENORS OPPOSITION TO Plaintiffs Objection to Motion to Intervene 29 on behalf of Intervenor Plaintiffs Gracy Sedlak and Harold Wilson.(MKR) (Entered: 01/05/2015)
35 MEMORANDUM AND ORDER − IT IS ORDERED: Harold Wilson's and Gracy Sedlak's motion to intervene (Filing No. 24 ) is denied. The plaintiffs' objection to the intervention motion (Filing No. 29 ) is sustained. Harold Wilson's and Gracy Sedlak's opposition to the plaintiffs' objection (Filing No. 34 ) is overruled. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL) (Entered: 01/07/2015)
36 MOTION to Substitute Party by Attorney David A. Lopez on behalf of Defendants Jon Bruning, Kim Conroy, Dave Heineman, Kerry Winterer.(Lopez, David) (Entered: 01/08/2015)
37 ORDER granting defendant's 36 Motion Defendants. Dave Heineman (in his official capacity as Governor of Nebraska). Pursuant to Fed. R. Civ. P. 25(d) and in accordance with the motion, the motion is granted and the parties are hereby substituted. The Clerk of the Court shall modify the docket accordingly. Ordered by Magistrate Judge Thomas D. Thalken. (MKR) (Entered: 01/09/2015)
38 NOTICE of Appearance by Attorney James D. Smith on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup (Smith, James) (Entered: 01/12/2015)
39 State Defendants' ANSWER to Amended Complaint, 9 by Attorney James D. Smith on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup(Smith, James) (Entered: 01/20/2015)
40 NOTICE of Appearance by Attorney David T. Bydalek on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup (Bydalek, David) (Entered: 01/21/2015)
41 MOTION to Stay Proceedings by Attorney David A. Lopez on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 01/21/2015)
42 BRIEF in support of MOTION to Stay Proceedings 41 by Attorney David A. Lopez on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 01/21/2015)
43 BRIEF in opposition to MOTION for Preliminary Injunction 10 by Attorney James D. Smith on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Smith, James) (Entered: 01/22/2015)
44 INDEX in opposition to MOTION for Preliminary Injunction 10 by Attorney James D. Smith on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup. (Attachments: # 1 Affidavit of Catherine Pakaluk, # 2 Affidavit of Joseph M. Acierno, # 3 Affidavit of David T. Bydalek (Part 1 of 2), # 4 Affidavit of David T. Bydalek (Part 2 of 2))(Smith, James) (Entered: 01/22/2015)
45 TEXT ORDER − The Motion Hearing scheduled for 1/29/2015 is cancelled pending further order of the Court. Ordered by Senior Judge Joseph F. Bataillon. (TCL ) (Entered: 01/23/2015)

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01/23/2015 01/25/2015 01/27/2015 01/29/2015 02/19/2015
02/23/2015
02/23/2015 02/23/2015 03/02/2015 03/02/2015
03/02/2015

46 BRIEF in opposition to Motion to Stay Proceedings by Attorney Angela J. Dunne on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz.(Dunne, Angela) (Entered: 01/23/2015)
47 REPLY BRIEF in support of MOTION to Stay Proceedings 41 by Attorney David A. Lopez on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 01/25/2015)
48 MEMORANDUM AND ORDER that State defendants' 41 Motion to Stay is denied. This matter is set for oral argument on February 19, 2015 at 2:00 p.m. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 01/27/2015)
49 BRIEF in support of Motion for Preliminary Injunction by Attorney Angela J. Dunne on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz.(Dunne, Angela) (Entered: 01/29/2015)
50 TEXT MINUTE ENTRY for proceedings held before Senior Judge Joseph F. Bataillon. Motion Hearing held on 2/19/2015 regarding MOTION for Preliminary Injunction 10 . Appearances made on the record. Argument by plaintiff and defendant. Written order forthcoming. Hearing held in Omaha. Courtroom Deputy: Amy Brunswick; Reporter: Rogene Schroder ; Appearance for Plaintiff: Amy Miller, Angela Dunne, Leslie Cooper, Susan Koenig. Appearance for Defendant: David Lopez, Doug Peterson, Danielle Jones, Stephanie Caldwell, Ryan Post. Time Start: 1:57 PM; Time Stop: 3:03 PM; Time in Court: 1 Hour 6 Minutes. (ADB) (Entered: 02/19/2015)
51 ATTACHMENT − CONTINUED regarding MOTION for Preliminary Injunction 10 . Declaration of Angela Dunne by Attorney Angela J. Dunne on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz. (Attachments: # 1 Supplement Attachment to the Motion for Preliminary Injunction)(Dunne, Angela) (Entered: 02/23/2015)
52 OBJECTION to Declaration of Angela Dunne [51−1] by Attorney Ryan S. Post on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Post, Ryan) (Entered: 02/23/2015)
53 BRIEF in support of OBJECTION to Declaration of Angela Dunne [51−1] 52 by Attorney Ryan S. Post on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Post, Ryan) (Entered: 02/23/2015)
54 MEMORANDUM AND ORDER − Accordingly: The plaintiffs' motion for a preliminary injunction (Filing No. 10 ) is granted. The defendant's oral motion for a stay is denied. The defendant's objection to the declaration of Angela Dunne (Filing No. 52 ) is overruled. A preliminary injunction, effective March 9, 2015, at 8:00 a.m. CDT will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (TCL ) (Entered: 03/02/2015)
55 INJUNCTION − Pursuant to the Memorandum and Order 54 entered this date, IT IS ORDERED that all relevant state officials are ordered to treat same−sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage. IT IS FURTHER ORDERED that this order will be effective on Monday, March 9, 2015, at 8:00 a.m. CDT. Ordered by Senior Judge Joseph F. Bataillon. (TCL) (Entered: 03/02/2015)
56 INTERLOCUTORY APPEAL regarding Preliminary Injunction, 55 , Order on Motion for Preliminary Injunction,, Order on Objection, 54 Filing fee $ 505, receipt number 0867−2897535. (Lopez, David) (Entered: 03/02/2015)

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57 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Memorandum and Order 54 and Injunction 55 . Notice of Appeal filed on 3/2/15 by Defendants Pete Ricketts, Doug Peterson, Leonard J. Sloup and Joseph Acierno. NOTIFICATION TO COUNSEL AND PARTIES − FILE REQUEST FOR TRANSCRIPT WITH THE DISTRICT COURT CLERK'S OFFICE. (JSF) (Entered: 03/02/2015)
58 REQUEST FOR TRANSCRIPT for proceedings held on 02/19/2015 before District Judge Joseph F. Bataillon (Hearing on Plaintiffs' Motion for Preliminary Injunction) (Lopez, David) (Entered: 03/02/2015)
59 SCHEDULING LETTER from USCA − 8th Circuit [15−1452] as to Interlocutory Appeal 56 ; (Attachments: # 1 Letter by Clerk from USCA−8th Circuit)(MKR) (Entered: 03/02/2015)
60 TRANSCRIPT (UNREDACTED) of Proceedings before Senior Judge Joseph F. Bataillon held on February 19, 2015. Total Number of Pages: 51. The transcript can only be viewed at the courts public terminal or purchased through Court Reporter Rogene S. Schroder at (402) 661−7383 or rogecrr@yahoo.com before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Redaction Request due 3/26/2015. Redacted Transcript Deadline set for 4/6/2015. Release of Transcript Restriction set for 6/3/2015. (RSS) (Entered: 03/05/2015)
61 COPY of Order from USCA − 8th Circuit [15−1452] Appellants' Emergency Motion for Stay Pending Appeal has been considered by the court, and the motion is granted. The District Court's Injunction Order of March 2, 2015 will be stayed pending the disposition of this appeal. It is further ordered that this case be set for oral argument in Omaha, Nebraska on May 12, 2015, together with the three other same−sex marriage cases now pending before the court. The clerk is directed to expedite the briefing in the case and establish the following schedule for the completion of the briefing: (MKR) (Entered: 03/06/2015)
62 SUPPLEMENT TO USCA RECORD (Transcript 60 of hearing on motion for preliminary injunction) (Lopez, David) (Entered: 03/09/2015)
63 Transmittal Letter to USCA−8th Circuit [15−1452] of Transcript 60 regarding Interlocutory Appeal 56 . (MKR) (Entered: 03/12/2015)
64 COPY of Order from USCA − 8th Circuit [15−1452] On the court's own motion, oral arguments and any further consideration of these cases will be deferred pending the Supreme Court of the United States decisions in Nos. 14−556, 14−562, 14−571, and 14−574 James Obergefell, et al. v. Richard Hodges, etc., et al. The briefing schedule in this case is suspended pending further order of the court. (MKR) (Entered: 04/29/2015)
65 MOTION to Substitute Party (Courtney Phillips for Joseph Acierno) by Attorney David A. Lopez on behalf of Defendants Joseph Acierno, Doug Peterson, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 05/11/2015)
66 ORDER granting the State Defendant's 65 Motion to Substitute Party. Pursuant to Fed. R. Civ. P. 25(d) and in accordance with the motion, the motion is granted and Courtney Phillips, in her official capacity as CEO of the Nebraska Department of Health and Human Services, is hereby substituted as a defendant in this matter to replace Joseph Acierno. The Clerk of the Court shall modify the docket accordingly. Ordered by Magistrate Judge Thomas D. Thalken. (MKR) (Entered: 05/12/2015)
67 COPY of Order from USCA − 8th Circuit [15−1452] This court's order of March 5, 2015, staying the District Court's injunction Order of March 2, 2015, is hereby vacated. (MKR) (Entered: 07/01/2015)
68 MOTION for Summary Judgment by Attorney Amy A. Miller on behalf of Plaintiffs William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak.(Miller, Amy) (Entered: 07/13/2015)

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08/11/2015 08/11/2015

69 TEXT NOTICE by Clerk that a system error occurred that prevented the header from appearing on document 68 filed between July 11, 2015 − July 13, 2015. The error has now been fixed. You will not receive a free look at the document hyperlinked in this notice, however, if you would like to receive a copy of the document sent to you via e−mail, please contact our office at (866) 220−4381 (Omaha) or (866) 220−4379 (Lincoln). (KMG) (Entered: 07/16/2015)
70 MOTION for Leave to file Amended Answer by Attorney Ryan S. Post on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup. (Attachments: # 1 Exhibit Unsigned Amended Answer)(Post, Ryan) (Entered: 08/03/2015)
71 BRIEF in support of MOTION for Leave to file Amended Answer 70 by Attorney Ryan S. Post on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Post, Ryan) (Entered: 08/03/2015)
72 MOTION for Summary Judgment (Cross−Motion for Summary Judgment by State Defendants) by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 08/03/2015)
73 BRIEF of State Defendants in Opposition to Plaintiffs' Motion for Summary Judgment 68 and in Support of Cross−Motion for Summary Judgment 72 by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 08/03/2015)
74 INDEX of State Defendants in Opposition to Plaintiffs' Motion for Summary Judgment 68 and in Support of Cross−Motion for Summary Judgment 72 by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup. (Attachments: # 1 Affidavit Declaration of David A. Lopez, # 2 Exhibit A (Suggestion of Mootness), # 3 Exhibit B (Declaration of Peterson), # 4 Exhibit C (Declaration of Lopez with attachments), # 5 Exhibit D (Declaration of Sloup with attachments), # 6 Exhibit E (Declaration of Post with attachments), # 7 Exhibit F (Declaration of Chambers), # 8 Exhibit G (Revised Nebraska Marriage Worksheet))(Lopez, David) (Entered: 08/03/2015)
75 TEXT ORDER granting 70 Motion for Leave to File Amended Answer. The defendants shall have until August 7, 2015, to file the amended answer. Ordered by Magistrate Judge Thomas D. Thalken. (BJC) (Entered: 08/04/2015)
76 Amended ANSWER to Amended Complaint, 9 by Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup (Post, Ryan) (Entered: 08/04/2015)
77 Consolidated REPLY to Counterclaim in Support of Motion for Summary Judgment and Opposition to Cross−Motion for Summary Judgment by Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz (Attachments: # 1 Statement of Material Facts) (Dunne, Angela) (Entered: 08/10/2015)
78 COPY of Opinion of USCA − 8th Circuit, Appellate Docket Number 15−1452, regarding Interlocutory Appeal 56 . The preliminary injunction is affirmed and the case remanded for entry of final judgment on the merits in favor of the plaintiffs. All pending motions are denied. (Attachments: # 1 Letter by Clerk from USCA, # 2 Letter to West Publishing)(MKR) (Entered: 08/11/2015)
79 COPY of Judgment from USCA − 8th Circuit [15−1452]. This appeal from the United States District Court was submitted on the record of the district court and briefs of the parties. After consideration, it is hereby ordered and adudged that the judgment of the district court in this cause is afirmed and the cause is remanded to the district court for proceedings consistent wih the opinion of this court. (MKR) (Entered: 08/11/2015)

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80 COPY of Amended Judgment from USCA − 8th Circuit [15−1452]. This judgment is amending the judgment of August 11, 2015 by adding the following to the end of the judgment: All pending motions are denied.This appeal from the United States District Court was submitted on the record of the district court and briefs of the parties. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed and the cause is remanded to the district court for proceedings consistent with the opinion of this court. All pending motions are denied. (MKR) (Entered: 08/11/2015)
81 REPLY BRIEF in support of MOTION for Summary Judgment (Cross−Motion for Summary Judgment by State Defendants) 72 Urging No Ruling on Pending Motions Until 8th Circuit Mandate Issuance by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 08/12/2015)
82 COPY of Order from USCA − 8th Circuit [15−1452] The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. (MKR) (Entered: 09/18/2015)
83 SUPPLEMENTAL MOTION for Summary Judgment and Brief in Support by Attorney Angela J. Dunne on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz. (Attachments: # 1 Exhibit Declaration of Brook Wagner, # 2 Exhibit Declaration of Nicole Wagner, # 3 Exhibit Affidavit of Jennifer McGowan, # 4 Exhibit Affidavit of Bobbie McGowan, # 5 Exhibit Affidavit of Stefanie Flodman, # 6 Exhibit Declaration of Jessica Kallstrom−Schreckengost, # 7 Exhibit Declaration of Jessica Kallstrom−Schreckengost)(Dunne, Angela) (Entered: 09/24/2015)
84 MANDATE from USCA − 8th Circuit (15−1452) that in accordance with the opinion and judgment of 8/11/2015, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above−styled matter regarding Interlocutory Appeal 56 . (JSF) (Entered: 09/24/2015)
85 MOTION to Strike SUPPLEMENTAL MOTION for Summary Judgment and Brief in Support 83 (and all of its attachments) and Objections to the Same by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 09/29/2015)
86 BRIEF in support of MOTION to Strike SUPPLEMENTAL MOTION for Summary Judgment and Brief in Support 83 (and all of its attachments) and Objections to the Same 85 by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 09/29/2015)
87 MOTION for Leave to File Supplement to Motion for Summary Judgment by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak. (Attachments: # 1 Supplement to Motion for Summary Judgment, # 2 Exhibit Declaration of Brooke Wagner, # 3 Exhibit Declaration of Nicole Wagner, # 4 Exhibit Affidavit of Jennifer McGowan, # 5 Exhibit Affidavit of Bobbie McGowan, # 6 Exhibit Affidavit of Stefanie Flodman, # 7 Exhibit Declaration of Jessica Kallstrom Schreckengost, # 8 Exhibit Declaration of Jessica Kallstrom Schreckengost)(Miller, Amy) (Entered: 09/30/2015)

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88 RESPONSE to Motion to Strike Supplement to Motion for Summary Judgment by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak.(Miller, Amy) (Entered: 09/30/2015)
89 BRIEF (Consolidated) in Opposition to "Motion for Leave to File Supplement" 87 and Reply Brief in Support of "Objections to Supplement to Motion for Summary Judgment and Brief in Support and Motion to Strike" 85 by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 10/08/2015)
90 MEMORANDUM AND ORDER − IT IS ORDERED that: The plaintiffs' supplemental motion (Filing No. 83 ) and the defendants' motion to strike (Filing No. 85 ) are denied as moot. The plaintiffs' motion for leave to supplement the record (Filing No. 87 ) is granted. The supplemental materials (Filing No. 87 , Attachments 1−8) are deemed filed instanter. The defendants shall file any responsive materials or briefs within 14 days of the date of this order and the plaintiffs shall have one week thereafter in which to respond, at which time the cross−motions for summary judgment will be considered submitted. Ordered by Senior Judge Joseph F. Bataillon. (TCL) (Entered: 10/20/2015)
91 BRIEF in opposition to MOTION for Summary Judgment 68 (Supplemental Brief) by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 11/03/2015)
92 INDEX in opposition to MOTION for Summary Judgment 68 (Supplemental Index) by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup. (Attachments: # 1 Affidavit Declaration of Courtney Phillips)(Lopez, David) (Entered: 11/03/2015)
93 BRIEF in opposition to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak.(Miller, Amy) (Entered: 11/09/2015)
94 MOTION to Withdraw as Attorney by Attorney Danielle L. Jones on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Jones, Danielle) (Entered: 12/29/2015)
95 TEXT ORDER granting 94 Motion to Withdraw as Attorney. For good cause shown pursuant to NEGenR 1.3(f), Danielle L. Jones is granted leave to withdraw as counsel for the defendants. Other counsel remains for the defendants. The Clerk of Court shall stop all electronic notices to Ms. Jones regarding this case. Ordered by Magistrate Judge Thomas D. Thalken. (SMN) (Entered: 12/30/2015)
96 MEMORANDUM AND ORDER: Plaintiffs' motion for summary judgment, Filing No. 68, is granted as set forth herein; Defendants' motion for summary judgment, Filing No. 72, is denied; Plaintiffs' motion for leave to file supplement to motion for summary judgment, Filing No. 87, is granted; The Court declares Article I, § 29 of the Nebraska Constitution unconstitutional in light of Obergefell v. Hodges, 135 S. Ct. 2584 (2015). A permanent injunction is hereby entered prohibiting the enforcement of Section 29 of the Nebraska Constitution. A separate order is filed in conjunction with this memorandum and order; Effective immediately, IT IS ORDERED that all relevant state officials shall treat same−sex couples the same as different−sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage; The Court will retain jurisdiction over the enforcement of the permanent injunction and issues related to this lawsuit for a period of at least three years. If a further extension is merited, the parties may file a motion with the Court. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 02/04/2016)
97 PERMANENT INJUNCTION: Pursuant to the Memorandum and Order entered this date, IT IS ORDERED that all relevant state officials are ordered to treat same−sex

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couples the same as different−sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage. IT IS FURTHER ORDERED that this order will be effective on Thursday, February 4, 2016 at 4:00 p.m. CDT. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 02/04/2016)
98 JOINT MOTION to Extend Deadline for Application for Attorney Fees and Costs by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak.(Miller, Amy) (Entered: 02/17/2016)
99 TEXT ORDER granting 98 Joint Motion to Extend the deadline for Plaintiffs' application for attorney fees and costs until March 3, 2016. Ordered by Senior Judge Joseph F. Bataillon. (TCL) (Entered: 02/17/2016)
100 MOTION to Substitute Party (Tony Fulton for Leonard J. Sloup) by Attorney David A. Lopez on behalf of Defendants Doug Peterson, Courtney Phillips, Pete Ricketts, Leonard J. Sloup.(Lopez, David) (Entered: 02/27/2016)
101 ORDER granting the State defendants' 100 Motion to Substitute Party. Pursuant to Fed. R. Civ. P. 25(d), the motion is granted and Tony Fulton, in his official capacity as Tax Commissioner of the Nebraska Department of Revenue, is hereby substituted as a defendant in this matter to replace Leonard J. Sloup. The Clerk of the Court shall modify the docket accordingly. Ordered by Magistrate Judge Thomas D. Thalken. (MKR) (Entered: 02/29/2016)
102 JOINT MOTION to Extend Deadline for Application for Attorney Fees and Costs by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz, Intervenor Plaintiff Gracy Sedlak.(Miller, Amy) (Entered: 03/01/2016)
103 TEXT ORDER granting the parties' 102 Joint Motion to Extend the deadline for plaintiffs' application for attorney fees and costs. The parties shall inform the Court of the status of the settlement within 90 days of this order. Ordered by Senior Judge Joseph F. Bataillon. (TCL) (Entered: 03/02/2016)
104 STATUS REPORT by Attorney Amy A. Miller on behalf of Plaintiffs Jason Cadek, Randall Clark, Jessica Kallstrom−Schreckengost, Kathleen Kallstrom−Schreckengost, Nickolas Kramer, Thomas Maddox, Carla Morris−Von Kampen, Marjorie Plumb, William Roby, Gregory Tubach, Crystal Von Kampen, Sally Waters, Susan Waters, Tracy Weitz.(Miller, Amy) (Entered: 06/01/2016)
105 ORDER that this matter is before the court on the status report of the parties, Filing No. 104. Having been advised that all pending matters, including attorney fees and costs, have been resolved the court finds, for docket control purposes, this action can be closed. Of course, the court automatically retains jurisdiction to enforce its injunction, should any future problems arise. Accordingly, IT IS ORDERED: The Clerk of Court is directed to close this case. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 06/14/2016)