Case 1:14-cv-00273-REB Document 1 Filed 07/07/14 Page 1 of 15

Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702
Tel.: (208) 484-2253 d@fergusonlawmediation.com

Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main St., Suite 328 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com

Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO MADELYNN LEE TAYLOR,

Plaintiff,

Case No.

v.

DAVID E. BRASUELL, as Administrator of the Idaho Division of Veterans Services, in his official capacity,
Defendant.

COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

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I. INTRODUCTION 1. Plaintiff Madelynn Lee Taylor (“Ms. Taylor” or “Plaintiff”) brings this action for a
permanent injunction and damages. She requests that the Court issue an injunction directing Defendant David E. Brasuell, as Administrator of the Idaho Division of Veterans Services, in his official capacity, approve her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery.
2. Ms. Taylor is a 74 year old veteran of the United States Navy. She married her longtime partner, Ms. Jean Mixner, in California in 2008. Attached as Exhibit “A” is a copy of their marriage certificate. After a long and painful struggle with emphysema, Ms. Mixner died in 2012, while the couple were living in Arizona. Following Ms. Mixner’s death, Ms. Taylor returned to Idaho, which had been her home for most of her career and where the couple had lived together for much of their retirement. Ms. Taylor brought her spouse’s cremated ashes with her to Idaho, as it was Ms. Mixner’s request and desire, as well as Ms. Taylor’s intention, to have their ashes comingled upon Ms. Taylor’s death.
3. Since her return to Idaho, Ms. Taylor has dealt with several health challenges. She suffers from cardiovascular disease, and recently underwent surgery at a Veteran’s Administration hospital to replace a stent in her neck. She also has chronic obstructive pulmonary disease, a serious respiratory condition. Her ability to walk more than short distances is limited, due to an injury to her left leg up to her knee, and requires her to use a cane, walker or motorized scooter for mobility.
4. In December 2013, Ms. Taylor went to the Idaho State Veterans Cemetery in Boise to make advance arrangements for interment of her own ashes, as well as those of her spouse, Ms. Mixner, together in a single stone columbarium. The Idaho State Veterans Cemetery and the
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cemetery routinely allows veterans to be buried with their spouses. Despite Ms. Taylor’s possession of valid honorable discharge, attached as Exhibit “B” and a valid marriage certificate, (Exhibit “A”), cemetery staff refused to provide the requested reservation for Ms. Mixner’s ashes to be interred along with Ms. Taylor’s. The sole reason for this refusal was Idaho’s laws prohibiting the recognition of marriages of same-sex couples lawfully entered into in other jurisdictions. A copy of Ms. Taylor’s Application for Pre-Registration is attached as Exhibit “C”. The Idaho Division of Veterans Services denial of her application letter is attached as Exhibit “D”.
5. Under the Idaho Constitution, “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. art. III, § 28. This provision precludes recognition of a same-sex couple’s existing marriage. In the recent decision of Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999, __F. Supp.2d___(D. Idaho May 13, 2014), the Court held Idaho’s same sex marriage ban unconstitutional, as a violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
6. Idaho’s refusal to respect Ms. Taylor’s marriage denies her a “dignity and status of immense import.” United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Idaho’s refusal to recognize her same sex marriage “tells ….all the world that their [relationship is] unworthy” of recognition. Id. at 2694. Indeed, Idaho law goes so far as to deny her as a military veteran the basic dignity and respect of being interred alongside her lawful spouse in the Idaho State Veterans Cemetery.
7. Idaho’s refusal to respect Plaintiff’s marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Idaho law deprives Plaintiff as the surviving spouse her constitutionally protected liberty interest in her
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marriage. Idaho’s anti-recognition laws further burden the exercise of her fundamental rights and discriminate against her. Idaho’s laws prohibiting the recognition of her same-sex marriage is subject to heightened scrutiny because they burden Ms. Taylor’s fundamental constitutional rights and because they discriminate based on sex and sexual orientation. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014). The challenged Idaho statutes and constitutional provision cannot survive any level of constitutional scrutiny, however, because they do not rationally further any legitimate government interest, but serve only to injure and humiliate Plaintiff as the surviving spouse of a married same-sex couple.
8. Ms. Taylor brings this suit pursuant to 42 U.S.C. § 1983 for injunctive relief against the Defendant. Specifically, Ms. Taylor seeks a permanent injunction directing Defendant to approve her Pre-registration Application to be interred upon her death with her deceased spouse, Ms. Mixner, and to direct him to approve, upon Ms. Taylor’s upon death, her interment, together with her spouse at the Idaho State Veterans Cemetery. Ms. Taylor also seeks monetary damages for her injuries and expenses. II. PARTIES
A. The Plaintiff 9. Madelynn Lee Taylor was born in 1940 and raised in a large family in Missouri and California. At age 18, she joined the United States Navy, where she was first trained in electronics maintenance and later became a trainer in aviation physiology, teaching servicemembers about the physiological effects of flight. After six years in the Navy, a fellow servicemember told investigators that Ms. Taylor was a lesbian. Under the military policy concerning gay and lesbian servicemembers that was in effect in the early 1960s, she was given the choice of facing a court martial or agreeing to an immediate administrative discharge. Ms. Taylor agreed to the
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administrative discharge, to avoid a court martial. In 1979 this injustice was corrected to reflect Ms. Taylor’s honorable discharge, with full military benefits. (See Exhibit “B”).
10. Ms. Taylor then began a career in the private sector, first working at HewlettPackard Co. in California writing technical manuals, and later moving to Idaho, where she spent the remaining 25 years of her career working for Mountain States Telephone Company. Ms. Taylor owned three homes and farms in Idaho over the years and raised calves on her land. She volunteered as an emergency medical technician, for the Kuna and Meridian, Idaho fire departments. She also became a certified nursing assistant, and worked part time in several nursing homes. Idaho became her home, and she had four siblings and many friends in the community.
11. In 1995, as she was nearing retirement, Ms. Taylor’s last assignment with Mountain States Telephone took her to Minnesota. When she completed her last project, she stopped in Kansas City, Missouri, to visit her sister-in-law as she drove back to Boise to begin her retirement. While in Kansas City, Ms. Taylor met Jean Mixner on a blind date arranged by Ms. Taylor’s sisterin-law. Ms. Taylor and Ms. Mixner were drawn to each other immediately, and when Ms. Taylor returned to Boise, the two spoke by telephone frequently. Soon thereafter, Ms. Mixner, who was also retired, moved to Boise to be with Ms. Taylor. The couple married in a religious (but not legally binding) ceremony in 1995 in Oregon.
12. Ms. Taylor and Ms. Mixner lived together in Nampa and built an addition to their home together. Ms. Taylor continued to work on the house, and Ms. Mixner ran a support group for transgender people and was one of the clergy at the Metropolitan Community Church in Boise. The couple moved to North Carolina for a time to care for Ms. Mixner’s mother, and later bought a recreational vehicle in which they traveled the country together for six years.
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13. In 2008, Ms. Mixner and Ms. Taylor legally married in California. (See Exhibit “A”). Shortly thereafter, Ms. Mixner became seriously ill with emphysema. The couple lived in Arizona, as Ms. Mixner’s illness progressed. Ms. Mixner passed away in 2012.
14. Ms. Taylor moved back to Idaho to be near family and friends. In December 2013, she drove to the Idaho State Veterans Cemetery to make arrangements for her own ashes and those of Ms. Mixner to be interred together in a granite columbarium at the cemetery. Veterans are permitted to be buried or interred in the Idaho State Veterans Cemetery along with their spouses, and the cemetery routinely allows such burial or interment for opposite-sex married couples. When employees at the cemetery learned that Ms. Taylor’s spouse was also a woman, they immediately declined to approve Ms. Taylor’s request for Ms. Mixner’s ashes to be interred at the cemetery. Ms. Taylor later returned to the cemetery to speak with a supervisor, but again was told that Ms. Mixner could not be interred at the Idaho State Veterans Cemetery because Idaho law does not recognize marriage between spouses of the same sex. On June 4, 2014, Mr. James Earp, the Director of the Idaho State Veterans Cemetery, wrote to notify Ms. Taylor that her Pre-registration Application for her interment, along with her spouse, Ms. Mixner, was rejected because the State of Idaho does not recognize her marriage as valid. Specifically he noted that article III, Section 28 of the Idaho Constitution, and Idaho Code § 32-201 provide that “[a] marriage between a man and a woman is the only domestic union that shall be valid or recognized in this state”. (See Exhibit “D”).
B. The Defendant 15. Defendant David E. Brasuell (“Defendant”) is Administrator of the Idaho Division of Veterans Services. Pursuant to I.C. § 65-202, Defendant is empowered to “[o]versee the management and operation of the veterans homes in the state and the state veterans cemetery, and
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provide care to veterans of the armed forces of the United States under such rules as the administrator may, from time to time, adopt.” Defendant is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. On information and belief, Defendant’s official residence and/or workplace is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
16. Defendant is responsible for enforcing, within the Division of Veterans Services, Idaho’s laws refusing to recognize the valid out-of-state marriages of same-sex couples. Defendant, and those subject to his supervision and control, have caused the harms alleged herein, and will continue to injure Ms. Taylor if not enjoined. The relief requested herein is sought against Defendant and all persons under his supervision and control, including all officers, employees and agents of the Idaho Division of Veterans Services. III. JURISDICTION AND VENUE
17. Plaintiff brings this action under 42 U.S.C. § 1983 to redress the deprivation of her rights under color of state law of rights secured by the United States Constitution.
18. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. This Court has personal jurisdiction over Plaintiff and Defendant.
19. Venue is proper in this Court under 28 U.S.C. § 1391 (b)(1) and (2) because the Defendant resides and/or works in this District and resides in this State, and because a substantial part of the acts and events giving rise to this Complaint occurred in this District.
20. This Court has authority to enter permanent injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. IV. STATEMENT OF FACTS
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Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize Plaintiff’s Valid Out-of-State Marriages
21. Historically, Idaho has not questioned the legitimacy of marriages from other states that are valid under the other state’s laws. From territorial days until 1996, Idaho recognized all “foreign” marriages if they were lawful under the laws of the other jurisdiction. 1867, p. 71, § 5; R.S. § 2428; I.C. § 32-209.
22. In 1996, however, in response to the mere possibility that some states might permit same-sex couples to marry although none had yet done so, the Idaho legislature amended Idaho Code section 32-209 to create an exception to the longstanding rule that Idaho generally respects marriages that are validly entered into in other states only for the legal marriages of same-sex couples. That statute now provides:
All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.
23. Likewise, I.C. § 32-201 provides: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage.
24. In 2006, although Idaho’s statutes already denied recognition to the marriages of same-sex couples who legally married out of state, Idaho amended its Constitution to do so as well. Article III, section 28 provides:
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A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.
Harms Caused by Idaho’s Laws Refusing to Plaintiff’s Valid Out-of-State Marriage 	  
25. Ms. Taylor is a resident of Idaho who has experienced the same joys and challenges of family life as her neighbors, co-workers, and other community members whose legal marriages are respected under Idaho law. She has had a successful and productive career, served her country honorably in the military, and contributed to her community. Nevertheless, Idaho denies her marriage the same legal shelter, dignity, and respect afforded by Idaho to other Idaho married couples, and widows and widowers. Idaho’s refusal to respect Ms. Taylor’s subjects her to an inferior “second class” status as an Idahoan relative to the rest of the community. It denies her even the basic dignity of having her burial wishes, and the wishes of her spouse, respected by the State of Idaho, solely because of its refusal to recognize their lawful marriage. Idaho has denied Ms. Taylor the comfort and dignity of knowing that she will be able to honor her promise to her spouse. Namely, that upon Ms. Taylor’s death, their remains will be comingled for burial, so that they may rest together in peace. This has caused, and continues to cause Ms. Taylor great pain and anguish.
26. Further, as a proud veteran of the United States Navy, and an Idaho resident, Ms. Taylor is entitled to be buried in the Idaho State Veterans Cemetery in Boise, Idaho, along with her spouse, just as are other honorably discharged Idaho veterans. Idaho’s refusal to recognize Ms. Taylor’s marriage and treatment of her spouse as a legal stranger is disrespectful and deeply offensive. V. CLAIMS FOR RELIEF
First Claim for Relief: Idaho’s Failure to Recognize The Marriage of Plaintiff Deprives her of Due Process of Law in Violation of the Fourteenth Amendment to the United States Constitution
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27. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this complaint as though fully set forth herein.
28. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
29. The Idaho Constitution, article III, section 28, Idaho Code section 32-209, and all other sources of state law that prohibit the state and its officers from respecting the marriage of Plaintiff violates the due process guarantee of the Fourteenth Amendment.
30. The right to marry the unique person of one’s choice and to direct the course of one’s life without undue government restriction is one of the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment.
31. The Due Process Clause also protects choices central to personal dignity, privacy, and autonomy, including each individual’s fundamental liberty interests in family integrity and intimate association. Defendant’s actions to enforce the marriage recognition ban directly and impermissibly infringe upon Plaintiff’s deeply intimate, personal, and private decisions regarding family life, and preclude her from obtaining full liberty, dignity, privacy, and security for herself and her deceased spouse.
32. Plaintiff was lawfully married to her late spouse Jean Mixner in California in 2008. 33. When a couple validly marries in a state, numerous rights, responsibilities, benefits, privileges, and protections attach to that status under state and federal law. 34. Once a couple enters into a valid marriage in a state, the couple has a liberty interest in their marital status that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendment, regardless of where the married couple chooses to live within the United States.
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35. Plaintiff, as the surviving spouse of a lawful marriage, has a protected liberty interest in her marriage and in the comprehensive protections and obligations that marriage provides.
36. By operation of Idaho Code section 32-209, and article III, section 28 of the Idaho Constitution, Plaintiff’s lawful marriage is treated as non-existent and without any legal effect or status in Idaho. Idaho law effectively strips Plaintiff of a valuable and fundamental legal status was conferred by a sister state and deems Plaintiff a legal stranger to her deceased spouse.
37. Idaho’s refusal to recognize Plaintiff’s valid out-of-state marriage impermissibly deprives her of her fundamental liberty and property interests in her marriage and the comprehensive protections afforded by marriage in violation of the Fourteenth Amendment’s Due Process Clause.
38. Idaho’s refusal to recognize Plaintiff’s valid out-of-state marriage also impermissibly burdens and interferes with her exercise of the fundamental right to marry in violation of the Fourteenth Amendment’s Due Process Clause.
39. Defendant cannot satisfy the requirements of the Due Process Clause because Idaho’s refusal to respect the Plaintiff’s valid marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the heightened level of scrutiny that applies to deprivation of the fundamental right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
40. Defendant’s deprivation of Plaintiff’s constitutional rights under color of state law violates 42 U.S.C. § 1983.
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41. Plaintiff has no adequate remedy at law to redress the irreparable wrongs alleged in this Complaint, which are of a continuing nature.
42. Plaintiff is entitled to permanent injunctive relief on this basis. Second Claim For Relief: Idaho’s Failure to Recognize the Plaintiff’s Denies Her Equal Protection of the Laws in Violation of the Fourteenth Amendment to the United States Constitution 43. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this Complaint as though fully set forth herein. 44. Plaintiff states this cause of action against Defendant in his official capacity for purposes of seeking injunctive relief. 45. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 46. Idaho has a long history of respecting marriages that were validly entered into in other states, and affording those marriages all of the rights and privileges of an Idaho marriage. But in 1996, and again in 2006, it singled out the legal marriages of same-sex couples in order to exclude them from recognition and to deny the spouses in such marriages any of the rights, protections, and responsibilities of marriage. 47. Idaho Constitution, article III, section 28 and Idaho Code section 32-209 and all other sources of state law that prohibit recognition of the valid out-of-state marriages of same-sex couples violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiff. The conduct of Defendant in enforcing these laws violates the right of Plaintiff to equal protection by discriminating impermissibly on the basis of her sexual orientation and sex.
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48. Idaho’s refusal to respect the marriages of Plaintiff, and Defendant’s actions to enforce that exclusion, deny her equal dignity and respect. These laws brand her as second-class citizens through government-imposed stigma and foster private bias and discrimination, by instructing that Plaintiff’s marriage is less worthy than other Idaho marriages. Defendant’s actions reflect moral disapproval and animus toward same-sex couples.
49. While the states have traditionally had the authority to regulate marriage, that authority “must respect the constitutional rights of persons,” see Windsor, 133 S. Ct. at 2691, and it is “subject to constitutional guarantees,” see id.
50. The principal purpose and effect of Idaho’s non-recognition laws “is to identify a subset of state-sanctioned marriages and make them unequal.” Windsor, 133 S. Ct. at 2694. These laws “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [other] States.” Id. at 2693.
51. Idaho’s laws which refuse to recognize Plaintiff’s marriage are subject to heightened scrutiny. But even under rational basis review, a purpose to harm a minority class of persons cannot justify disparate treatment of members of that group, as this is not a legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 635 (1996); Windsor, 133 S. Ct. at 2693
Injunctive Relief 52. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this Complaint as though fully set forth herein. 53. This case presents an actual controversy because Defendant’s present and ongoing violation of Plaintiff’s rights to due process and equal protection subjects Plaintiff to serious and immediate harms, warranting the issuance of a permanent injunction pursuant to Federal Rule of Civil Procedure 65.
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54. Plaintiff seeks injunctive relief to protect her constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendant would redress and prevent the irreparable injuries to Plaintiff, for which Plaintiff has no adequate remedy at law or in equity.
Monetary Relief 55. Plaintiff seeks monetary damages for her injuries and expenses relating to the Defendant’s denial of her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter judgment: A. Directing Defendant David E. Brasuell, as Administrator of the Idaho Division of Veterans Services, in his official capacity, to approve her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery, and to approve Ms. Taylor’s interment upon her death together with her spouse; B. Awarding Plaintiff monetary damages for her injuries and expenses; C. Awarding Plaintiff her costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and D. Granting such other and further relief as the Court deems just and proper. E. The injunctive relief requested in this action is sought against Defendant; against Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with Defendant, or under Defendant’s supervision, direction, or control.
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DATED: July 7, 2014 Respectfully submitted, _______________/s/_______________________ Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com
Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main Street, Suite 328 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com National Center for Lesbian Rights Shannon P. Minter* Christopher F. Stoll* 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org
Attorneys for Plaintiffs * Motions for Admission Pro Hac Vice Pending 	  
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Deborah A. Ferguson, ISB No. 5333 Ferguson Durham, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702
Tel.: (208) 484-2253 d@fergusonlawmediation.com

Craig Harrison Durham, ISB No. 6428 Ferguson Durham, PLLC 910 W. Main St., Suite 328 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com

Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO MADELYNN LEE TAYLOR,

Plaintiff,

Case No.

v.

DAVID E. BRASUELL, as Administrator of the Idaho Division of Veterans Services, in his official capacity,

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendant.

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I. INTRODUCTION 1. Plaintiff Madelynn Lee Taylor (“Ms. Taylor” or “Plaintiff”) brings this action for a
permanent injunction. She requests that the Court issue an injunction directing Defendant David E. Brasuell, as Administrator of the Idaho Division of Veterans Services, in his official capacity, approve her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery.
2. Ms. Taylor is a 74 year old veteran of the United States Navy. She married her longtime partner, Ms. Jean Mixner, in California in 2008. Attached as Exhibit “A” is a copy of their marriage certificate. After a long and painful struggle with emphysema, Ms. Mixner died in 2012, while the couple were living in Arizona. Following Ms. Mixner’s death, Ms. Taylor returned to Idaho, which had been her home for most of her career and where the couple had lived together for much of their retirement. Ms. Taylor brought her spouse’s cremated ashes with her to Idaho, as it was Ms. Mixner’s request and desire, as well as Ms. Taylor’s intention, to have their ashes comingled upon Ms. Taylor’s death.
3. Since her return to Idaho, Ms. Taylor has dealt with several health challenges. She suffers from cardiovascular disease, and recently underwent surgery at a Veteran’s Administration hospital to replace a stent in her neck. She also has chronic obstructive pulmonary disease, a serious respiratory condition. Her ability to walk more than short distances is limited, due to an injury to her left leg up to her knee, and requires her to use a cane, walker or motorized scooter for mobility.
4. In December 2013, Ms. Taylor went to the Idaho State Veterans Cemetery in Boise to make advance arrangements for interment of her own ashes, as well as those of her spouse, Ms. Mixner, together in a single stone columbarium. The Idaho State Veterans Cemetery and the
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cemetery routinely allows veterans to be buried with their spouses. Despite Ms. Taylor’s possession of valid honorable discharge, attached as Exhibit “B” and a valid marriage certificate, (Exhibit “A”), cemetery staff refused to provide the requested reservation for Ms. Mixner’s ashes to be interred along with Ms. Taylor’s. The sole reason for this refusal was Idaho’s laws prohibiting the recognition of marriages of same-sex couples lawfully entered into in other jurisdictions. A copy of Ms. Taylor’s Application for Pre-Registration is attached as Exhibit “C”. The Idaho Division of Veterans Services denial of her application letter is attached as Exhibit “D”.
5. Under the Idaho Constitution, “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. art. III, § 28. This provision precludes recognition of a same-sex couple’s existing marriage. In the recent decision of Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999, __F. Supp.2d___(D. Idaho May 13, 2014), the Court held Idaho’s same sex marriage ban unconstitutional, as a violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
6. Idaho’s refusal to respect Ms. Taylor’s marriage denies her a “dignity and status of immense import.” United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Idaho’s refusal to recognize her same sex marriage “tells ….all the world that their [relationship is] unworthy” of recognition. Id. at 2694. Indeed, Idaho law goes so far as to deny her as a military veteran the basic dignity and respect of being interred alongside her lawful spouse in the Idaho State Veterans Cemetery.
7. Idaho’s refusal to respect Plaintiff’s marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Idaho law deprives Plaintiff as the surviving spouse her constitutionally protected liberty interest in her
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marriage. Idaho’s anti-recognition laws further burden the exercise of her fundamental rights and discriminate against her. Idaho’s laws prohibiting the recognition of her same-sex marriage is subject to heightened scrutiny because they burden Ms. Taylor’s fundamental constitutional rights and because they discriminate based on sex and sexual orientation. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014). The challenged Idaho statutes and constitutional provision cannot survive any level of constitutional scrutiny, however, because they do not rationally further any legitimate government interest, but serve only to injure and humiliate Plaintiff as the surviving spouse of a married same-sex couple.
8. Ms. Taylor brings this suit pursuant to 42 U.S.C. § 1983 for injunctive relief against the Defendant. Specifically, Ms. Taylor seeks a permanent injunction directing Defendant to approve her Pre-registration Application to be interred upon her death with her deceased spouse, Ms. Mixner, and to direct him to approve, upon Ms. Taylor’s upon death, her interment, together with her spouse at the Idaho State Veterans Cemetery. II. PARTIES
A. The Plaintiff 9. Madelynn Lee Taylor was born in 1940 and raised in a large family in Missouri and California. At age 18, she joined the United States Navy, where she was first trained in electronics maintenance and later became a trainer in aviation physiology, teaching servicemembers about the physiological effects of flight. After six years in the Navy, a fellow servicemember told investigators that Ms. Taylor was a lesbian. Under the military policy concerning gay and lesbian servicemembers that was in effect in the early 1960s, she was given the choice of facing a court martial or agreeing to an immediate administrative discharge. Ms. Taylor agreed to the
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administrative discharge, to avoid a court martial. In 1979 this injustice was corrected to reflect Ms. Taylor’s honorable discharge, with full military benefits. (See Exhibit “B”).
10. Ms. Taylor then began a career in the private sector, first working at HewlettPackard Co. in California writing technical manuals, and later moving to Idaho, where she spent the remaining 25 years of her career working for Mountain States Telephone Company. Ms. Taylor owned three homes and farms in Idaho over the years and raised calves on her land. She volunteered as an emergency medical technician, for the Kuna and Meridian, Idaho fire departments. She also became a certified nursing assistant, and worked part time in several nursing homes. Idaho became her home, and she had four siblings and many friends in the community.
11. In 1995, as she was nearing retirement, Ms. Taylor’s last assignment with Mountain States Telephone took her to Minnesota. When she completed her last project, she stopped in Kansas City, Missouri, to visit her sister-in-law as she drove back to Boise to begin her retirement. While in Kansas City, Ms. Taylor met Jean Mixner on a blind date arranged by Ms. Taylor’s sisterin-law. Ms. Taylor and Ms. Mixner were drawn to each other immediately, and when Ms. Taylor returned to Boise, the two spoke by telephone frequently. Soon thereafter, Ms. Mixner, who was also retired, moved to Boise to be with Ms. Taylor. The couple married in a religious (but not legally binding) ceremony in 1995 in Oregon.
12. Ms. Taylor and Ms. Mixner lived together in Nampa and built an addition to their home together. Ms. Taylor continued to work on the house, and Ms. Mixner ran a support group for transgender people and was one of the clergy at the Metropolitan Community Church in Boise. The couple moved to North Carolina for a time to care for Ms. Mixner’s mother, and later bought a recreational vehicle in which they traveled the country together for six years.
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13. In 2008, Ms. Mixner and Ms. Taylor legally married in California. (See Exhibit “A”). Shortly thereafter, Ms. Mixner became seriously ill with emphysema. The couple lived in Arizona, as Ms. Mixner’s illness progressed. Ms. Mixner passed away in 2012.
14. Ms. Taylor moved back to Idaho to be near family and friends. In December 2013, she drove to the Idaho State Veterans Cemetery to make arrangements for her own ashes and those of Ms. Mixner to be interred together in a granite columbarium at the cemetery. Veterans are permitted to be buried or interred in the Idaho State Veterans Cemetery along with their spouses, and the cemetery routinely allows such burial or interment for opposite-sex married couples. When employees at the cemetery learned that Ms. Taylor’s spouse was also a woman, they immediately declined to approve Ms. Taylor’s request for Ms. Mixner’s ashes to be interred at the cemetery. Ms. Taylor later returned to the cemetery to speak with a supervisor, but again was told that Ms. Mixner could not be interred at the Idaho State Veterans Cemetery because Idaho law does not recognize marriage between spouses of the same sex. On June 4, 2014, Mr. James Earp, the Director of the Idaho State Veterans Cemetery, wrote to notify Ms. Taylor that her Pre-registration Application for her interment, along with her spouse, Ms. Mixner, was rejected because the State of Idaho does not recognize her marriage as valid. Specifically he noted that article III, Section 28 of the Idaho Constitution, and Idaho Code § 32-201 provide that “[a] marriage between a man and a woman is the only domestic union that shall be valid or recognized in this state”. (See Exhibit “D”).
B. The Defendant 15. Defendant David E. Brasuell (“Defendant”) is Administrator of the Idaho Division of Veterans Services. Pursuant to I.C. § 65-202, Defendant is empowered to “[o]versee the management and operation of the veterans homes in the state and the state veterans cemetery, and
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provide care to veterans of the armed forces of the United States under such rules as the administrator may, from time to time, adopt.” Defendant is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. On information and belief, Defendant’s official residence and/or workplace is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
16. Defendant is responsible for enforcing, within the Division of Veterans Services, Idaho’s laws refusing to recognize the valid out-of-state marriages of same-sex couples. Defendant, and those subject to his supervision and control, have caused the harms alleged herein, and will continue to injure Ms. Taylor if not enjoined. The relief requested herein is sought against Defendant and all persons under his supervision and control, including all officers, employees and agents of the Idaho Division of Veterans Services. III. JURISDICTION AND VENUE
17. Plaintiff brings this action under 42 U.S.C. § 1983 to redress the deprivation of her rights under color of state law of rights secured by the United States Constitution.
18. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. This Court has personal jurisdiction over Plaintiff and Defendant.
19. Venue is proper in this Court under 28 U.S.C. § 1391 (b)(1) and (2) because the Defendant resides and/or works in this District and resides in this State, and because a substantial part of the acts and events giving rise to this Complaint occurred in this District.
20. This Court has authority to enter permanent injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. IV. STATEMENT OF FACTS
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Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize Plaintiff’s Valid Out-of-State Marriages
21. Historically, Idaho has not questioned the legitimacy of marriages from other states that are valid under the other state’s laws. From territorial days until 1996, Idaho recognized all “foreign” marriages if they were lawful under the laws of the other jurisdiction. 1867, p. 71, § 5; R.S. § 2428; I.C. § 32-209.
22. In 1996, however, in response to the mere possibility that some states might permit same-sex couples to marry although none had yet done so, the Idaho legislature amended Idaho Code section 32-209 to create an exception to the longstanding rule that Idaho generally respects marriages that are validly entered into in other states only for the legal marriages of same-sex couples. That statute now provides:
All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.
23. Likewise, I.C. § 32-201 provides: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage.
24. In 2006, although Idaho’s statutes already denied recognition to the marriages of same-sex couples who legally married out of state, Idaho amended its Constitution to do so as well. Article III, section 28 provides:
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A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.
Harms Caused by Idaho’s Laws Refusing to Plaintiff’s Valid Out-of-State Marriage 	  
25. Ms. Taylor is a resident of Idaho who has experienced the same joys and challenges of family life as her neighbors, co-workers, and other community members whose legal marriages are respected under Idaho law. She has had a successful and productive career, served her country honorably in the military, and contributed to her community. Nevertheless, Idaho denies her marriage the same legal shelter, dignity, and respect afforded by Idaho to other Idaho married couples, and widows and widowers. Idaho’s refusal to respect Ms. Taylor’s subjects her to an inferior “second class” status as an Idahoan relative to the rest of the community. It denies her even the basic dignity of having her burial wishes, and the wishes of her spouse, respected by the State of Idaho, solely because of its refusal to recognize their lawful marriage. Idaho has denied Ms. Taylor the comfort and dignity of knowing that she will be able to honor her promise to her spouse. Namely, that upon Ms. Taylor’s death, their remains will be comingled for burial, so that they may rest together in peace. This has caused, and continues to cause Ms. Taylor great pain and anguish.
26. Further, as a proud veteran of the United States Navy, and an Idaho resident, Ms. Taylor is entitled to be buried in the Idaho State Veterans Cemetery in Boise, Idaho, along with her spouse, just as are other honorably discharged Idaho veterans. Idaho’s refusal to recognize Ms. Taylor’s marriage and treatment of her spouse as a legal stranger is disrespectful and deeply offensive. V. CLAIMS FOR RELIEF
First Claim for Relief: Idaho’s Failure to Recognize The Marriage of Plaintiff Deprives her of Due Process of Law in Violation of the Fourteenth Amendment to the United States Constitution
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27. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this complaint as though fully set forth herein.
28. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
29. The Idaho Constitution, article III, section 28, Idaho Code section 32-209, and all other sources of state law that prohibit the state and its officers from respecting the marriage of Plaintiff violates the due process guarantee of the Fourteenth Amendment.
30. The right to marry the unique person of one’s choice and to direct the course of one’s life without undue government restriction is one of the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment.
31. The Due Process Clause also protects choices central to personal dignity, privacy, and autonomy, including each individual’s fundamental liberty interests in family integrity and intimate association. Defendant’s actions to enforce the marriage recognition ban directly and impermissibly infringe upon Plaintiff’s deeply intimate, personal, and private decisions regarding family life, and preclude her from obtaining full liberty, dignity, privacy, and security for herself and her deceased spouse.
32. Plaintiff was lawfully married to her late spouse Jean Mixner in California in 2008. 33. When a couple validly marries in a state, numerous rights, responsibilities, benefits, privileges, and protections attach to that status under state and federal law. 34. Once a couple enters into a valid marriage in a state, the couple has a liberty interest in their marital status that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendment, regardless of where the married couple chooses to live within the United States.
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35. Plaintiff, as the surviving spouse of a lawful marriage, has a protected liberty interest in her marriage and in the comprehensive protections and obligations that marriage provides.
36. By operation of Idaho Code section 32-209, and article III, section 28 of the Idaho Constitution, Plaintiff’s lawful marriage is treated as non-existent and without any legal effect or status in Idaho. Idaho law effectively strips Plaintiff of a valuable and fundamental legal status was conferred by a sister state and deems Plaintiff a legal stranger to her deceased spouse.
37. Idaho’s refusal to recognize Plaintiff’s valid out-of-state marriage impermissibly deprives her of her fundamental liberty and property interests in her marriage and the comprehensive protections afforded by marriage in violation of the Fourteenth Amendment’s Due Process Clause.
38. Idaho’s refusal to recognize Plaintiff’s valid out-of-state marriage also impermissibly burdens and interferes with her exercise of the fundamental right to marry in violation of the Fourteenth Amendment’s Due Process Clause.
39. Defendant cannot satisfy the requirements of the Due Process Clause because Idaho’s refusal to respect the Plaintiff’s valid marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the heightened level of scrutiny that applies to deprivation of the fundamental right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
40. Defendant’s deprivation of Plaintiff’s constitutional rights under color of state law violates 42 U.S.C. § 1983.
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41. Plaintiff has no adequate remedy at law to redress the irreparable wrongs alleged in this Complaint, which are of a continuing nature.
42. Plaintiff is entitled to permanent injunctive relief on this basis. Second Claim For Relief: Idaho’s Failure to Recognize the Plaintiff’s Denies Her Equal Protection of the Laws in Violation of the Fourteenth Amendment to the United States Constitution 43. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this Complaint as though fully set forth herein. 44. Plaintiff states this cause of action against Defendant in his official capacity for purposes of seeking injunctive relief. 45. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 46. Idaho has a long history of respecting marriages that were validly entered into in other states, and affording those marriages all of the rights and privileges of an Idaho marriage. But in 1996, and again in 2006, it singled out the legal marriages of same-sex couples in order to exclude them from recognition and to deny the spouses in such marriages any of the rights, protections, and responsibilities of marriage. 47. Idaho Constitution, article III, section 28 and Idaho Code section 32-209 and all other sources of state law that prohibit recognition of the valid out-of-state marriages of same-sex couples violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiff. The conduct of Defendant in enforcing these laws violates the right of Plaintiff to equal protection by discriminating impermissibly on the basis of her sexual orientation and sex.
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48. Idaho’s refusal to respect the marriages of Plaintiff, and Defendant’s actions to enforce that exclusion, deny her equal dignity and respect. These laws brand her as second-class citizens through government-imposed stigma and foster private bias and discrimination, by instructing that Plaintiff’s marriage is less worthy than other Idaho marriages. Defendant’s actions reflect moral disapproval and animus toward same-sex couples.
49. While the states have traditionally had the authority to regulate marriage, that authority “must respect the constitutional rights of persons,” see Windsor, 133 S. Ct. at 2691, and it is “subject to constitutional guarantees,” see id.
50. The principal purpose and effect of Idaho’s non-recognition laws “is to identify a subset of state-sanctioned marriages and make them unequal.” Windsor, 133 S. Ct. at 2694. These laws “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [other] States.” Id. at 2693.
51. Idaho’s laws which refuse to recognize Plaintiff’s marriage are subject to heightened scrutiny. But even under rational basis review, a purpose to harm a minority class of persons cannot justify disparate treatment of members of that group, as this is not a legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 635 (1996); Windsor, 133 S. Ct. at 2693
Injunctive Relief 52. Plaintiff incorporates by reference and re-alleges all of the preceding paragraphs of this Complaint as though fully set forth herein. 53. This case presents an actual controversy because Defendant’s present and ongoing violation of Plaintiff’s rights to due process and equal protection subjects Plaintiff to serious and immediate harms, warranting the issuance of a permanent injunction pursuant to Federal Rule of Civil Procedure 65.
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54. Plaintiff seeks injunctive relief to protect her constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendant would redress and prevent the irreparable injuries to Plaintiff, for which Plaintiff has no adequate remedy at law or in equity. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter judgment:
A. Directing Defendant David E. Brasuell, as Administrator of the Idaho Division of Veterans Services, in his official capacity, to approve her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery, and to approve Ms. Taylor’s interment upon her death together with her spouse;
B. Awarding Plaintiff her costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws;
C. The injunctive relief requested in this action is sought against Defendant; against Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with Defendant, or under Defendant’s supervision, direction, or control; and
D. Granting such other and further relief as the Court deems just and proper.
DATED: September 11, 2014 Respectfully submitted, _______________/s/_______________________ Deborah A. Ferguson, ISB No. 5333 Ferguson Durham, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com
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Craig Harrison Durham, ISB No. 6428 Ferguson Durham, PLLC 405 S. 8th Street, Suite 372 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com National Center for Lesbian Rights Shannon P. Minter* Christopher F. Stoll* 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs * Admission Pro Hac Vice 	  
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Case No. 1:14-cv-00273-REB

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of the Idaho Division of Veterans Services, in his official capacity,
Defendant.

MEMORANDUM DECISION AND ORDER RE:
DEFENDANT’S MOTION TO DISMISS (Docket No. 18)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Docket No. 19)

Now pending before the Court are (1) Defendant’s Motion to Dismiss (Docket No. 18), and (2) Plaintiff’s Motion for Summary Judgment (Docket No. 19). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND1 1. Plaintiff Madelynn Lee Taylor is a 74 year-old veteran of the United States Navy. See Am. Compl., ¶ 2 (Docket No. 13). 2. In 1995, Ms. Taylor married Jean Mixner in a religious (but not legally binding) ceremony in Oregon. See id. at ¶ 11. In 2008, Ms. Taylor and Ms. Mixner legally married in California. See id. at ¶ 13; see also Ex. A to Am. Compl. (Docket No. 13, Att. 1).

1 This section discusses not only the instant action’s backdrop, but also two other legal proceedings taking place over the same period of time – namely, Latta v. Otter and Obergefell v. Hodges. These proceedings sometimes overlap, potentially contributing to a disjointed landscape that creates the setting for this Memorandum Decision and Order. To help reduce any confusion that might stem from the overlapping nature of the cases, this section is organized numerically, in chronological format.
MEMORANDUM DECISION AND ORDER - 1

3. In 2012, Ms. Mixner passed away. See Am. Compl., ¶ 13 (Docket No. 13).
4. In December 2013, Ms. Taylor drove to the Idaho State Veterans Cemetery in
Boise, Idaho to make arrangements to have her own ashes interred with Ms. Mixner’s ashes in a
granite columbarium there. See id. at ¶¶ 4 & 14. According to Ms. Taylor, “[v]eterans are
permitted to be buried or interred in the Idaho State Veterans Cemetery along with their spouses,
and the Cemetery routinely allows such burial or interment for opposite-sex married couples.”
See id.
5. On May 12, 2014, Ms. Taylor submitted an “Application for Pre-Registration”
(“Application”) to the Idaho Division of Veterans Services (“Veterans Services”). See Ex. C to
Am. Compl. (Docket No. 13, Att. 3). The Application requested the “pre-registration” of both
Ms. Taylor (as a veteran) and Ms. Mixner (as Ms. Taylor’s deceased spouse), with cremation
listed as the “interment type.” See id.
6. On June 4, 2014, Veterans Services granted, in part, and denied, in part, Ms.
Taylor’s Application. James Earp, Director of the Idaho State Veterans Cemetery, sent a letter to
Ms. Taylor in which he said:
Thank you very much for your Pre-registration Application for interment at the Idaho State Veterans Cemetery. We are pleased to inform you that you meet the eligibility requirements for interment in the Cemetery. The application for interment you submitted is hereby approved, in part, as it relates to interment benefits for yourself. . . . .
Your application, however, is denied in part as it relates to interment of the individual you listed in the spousal pre-registration section, Ms. Jean Francis Mixner. Your application indicates that both you and Ms. Mixner are female. In accordance with administrative rules governing the Cemetery, a preregistration application for interment of the spouse of an eligible veteran must be accompanied by a valid record (certificate) of marriage between an individual and the veteran. Although your application is accompanied by a certificate of marriage to Ms. Mixner issued by the State of California, Idaho
MEMORANDUM DECISION AND ORDER - 2

law does not permit the Cemetery to recognize such as valid. Specifically, the Idaho Constitution at Article III, Section 28 provides that “[a] marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Similarly, the Cemetery is limited by section 32-209, Idaho Code which indicates that same-sex marriages entered into under the law of another state violate the public policy in Idaho and are not valid in Idaho. The Cemetery is required to comply with current Idaho law; and accordingly, unable to provide interment benefits to Ms. Mixner at this time.
The Cemetery is aware that legal proceedings are currently pending which address the validity of Idaho’s laws regarding what constitutes a valid marriage in the state.[2] The outcome of such proceedings may directly affect the eligibility for benefits of Ms. Mixner and alter our determination of your application as indicated above as it relates to her. If that occurs, the Cemetery will reprocess your application for benefits as it relates to Ms. Mixner – you need not provide us with a new application at that time. As soon as any legal proceedings involving that matter are finally and sufficiently concluded, the Cemetery will notify you of any change in its decision as it relates to interment benefits for Ms. Mixner.
As it relates to your own eligibility for interment in the Cemetery, please be advised of the information that follows. As you know, pre-registration allows Veterans to establish in advance, their eligibility for interment and is intended to simplify and assist the next-of-kin at the time of death. Therefore, please note that this confirmation of your eligibility does not constitute a contractual agreement obligating you to interment in the Cemetery, nor does it reserve a specific site. In addition, pre-registration is not intended to override decisions
2 On May 13, 2014 (one day after Ms. Taylor submitted her Application), Chief U.S. Magistrate Judge, Candy Wagahoff Dale, declared “Idaho’s Marriage Laws” (identified as “the Constitution and laws of the State of Idaho”) unconstitutional under the Fourteenth Amendment of the United States Constitution and permanently enjoined the State of Idaho from enforcing its laws to the extent the laws would prohibit same-sex marriage in Idaho or not recognize same-sex marriages celebrated outside Idaho. See Latta v. Otter, 19 F. Supp. 3d 1054, 1060 (D. Idaho 2014) (“Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.”). On May 14, 2014, Judge Dale denied the Latta defendants’ motion for a stay pending appeal and entered judgment in the Latta plaintiffs’ favor, consistent with its May 13, 2014 decision. The Latta defendants appealed the decision to the United States Court of Appeals for the Ninth Circuit and, on May 20, 2014, the Ninth Circuit granted a stay pending appeal. Presumably, it is this state of events to which Mr. Earp refers to in his June 4, 2014 letter.
MEMORANDUM DECISION AND ORDER - 3

made as a result of subsequent estate planning, authorization given to next-ofkin, or various contractual agreements addressing interment. If you have any questions, please feel free to call the Cemetery Office at (208) 780-1340.
Thank you for your interest in the Idaho State Veterans Cemetery. We are grateful for your support and most appreciative that we are able to pay tribute to our Veterans by providing a final resting place of honor.
Ex. D to Am. Compl. (Docket No. 13, Att. 4).
7. On July 7, 2014, Ms. Taylor filed this lawsuit, later amending her pleading on
September 11, 2014. See Compl. (Docket No. 1); Am. Compl. (Docket No. 13). Through her
Amended Complaint, Ms. Taylor “request[ed] that the Court issue an injunction directing
Defendant David E. Brasuell, as Administrator of [Veterans Services], in his official capacity,
approve her Application for Pre-Registration to be interred along with her deceased spouse at the
Idaho State Veterans Cemetery.” Am. Compl., ¶ 1 (Docket No. 13); see also id. at ¶ VI(A), p.
14.3
8. On October 7, 2014, the Ninth Circuit affirmed Judge Dale’s decision in Latta,
reasoning:
Idaho[’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. These harms are not inflicted on opposite-sex couples, who may, if they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a “legitimate purpose . . . overcome[s]” the injury inflicted by the law on lesbians and gays and their families. . . . . Because
3 In addition to the requested injunctive relief, Ms. Taylor’s Amended Complaint also contained these “claim[s] for relief”: (1) “Idaho’s Failure to Recognize the Marriage of Plaintiff Deprives Her of Due Process of Law in Violation of the Fourteenth Amendment to the United States Constitution”; and (2) “Idaho’s Failure to Recognize the Plaintiff’s [Marriage] Denies Her Equal Protection of the Laws in violation of the Fourteenth Amendment to the United States Constitution.” Am. Compl., pp. 9, 12, & 13 (Docket No. 13).
MEMORANDUM DECISION AND ORDER - 4

defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause. Latta v. Otter, 771 F.3d 456, 476 (9th Cir. 2014) (internal citations omitted). 9. Upon application by Latta’s defendants, on October 8, 2014, the Supreme Court temporarily stayed the Ninth Circuit’s mandate in Latta; that same day, the Ninth Circuit withdrew its mandate, pending further order of the Ninth Circuit or the Supreme Court. 10. On October 10, 2014, the Supreme Court formally denied the application for stay, effectively vacating its October 8, 2014 order staying the proceedings; that same day, Latta’s plaintiffs moved for dissolution of the May 20, 2014 stay pending appeal. 11. On October 13, 2014, the Ninth Circuit granted the Latta plaintiffs’ motion to dissolve the May 20, 2014 stay pending appeal, effective at 9 a.m. on October 15, 2014. 12. On October 15, 2014, the Ninth Circuit found that the Latta defendants were no longer entitled to a stay of this Court’s May 13, 2014 order. See Latta v. Otter, 771 F.3d 496 (9th Cir. 2014) (finding support, in part, on Supreme Court’s October 6, 2014 decision to deny review of seven petitions arising from lower court decisions striking down bans on same-sex marriage in Indiana, Wisconsin, Utah, Oklahoma, and Virginia). Even so, the Ninth Circuit afforded the Latta defendants a second opportunity to obtain an emergency stay from the Supreme Court. Id. at 501.4 13. On October 21, 2014, the Latta defendants filed a petition for rehearing en banc with the Ninth Circuit.
4 It does not appear that the Latta defendants ever attempted to obtain a second emergency stay from the Supreme Court. MEMORANDUM DECISION AND ORDER - 5

14. On October 28, 2014, Ms. Mixner’s remains were interred at the Idaho State Veterans Cemetery. See Earp Decl., ¶ 5 (Docket No. 18, Att. 2) (stating that “Idaho’s marriage laws recently changed as a result of developments in the Latta v. Otter case” which “permitted Veterans Services to reconsider Ms. Taylor’s interment application for Ms. Mixner.”).
15. On October 29, 2014, Defendant David Brasuell, the Administrator of Veterans Services, filed the at-issue Motion to Dismiss this case, arguing that Ms. Taylor’s claims are now moot, owing to the fact that Ms. Mixner’s remains are now interred at the Idaho State Veterans Cemetery. See Mem. in Supp. of MTD, pp. 1-2 (Docket No. 18, Att. 1) (“When [P]laintiff originally filed this action, Idaho law prohibited recognition of same-sex marriages. That law has now changed to permit recognition of [P]laintiff’s marriage. As a result, the Idaho Division of Veterans Services has granted [P]laintiff’s request for interment of her spouse’s remains at the Idaho State Veterans Cemetery. Thus, [P]laintiff has received all the relief requested in her complaint.”).
16. Also on October 29, 2014, Ms. Taylor filed the at-issue Motion for Summary Judgment in this action, arguing that, while the placement of Ms. Mixner’s remains at the Idaho Veterans Cemetery is “a first step toward the relief sought in this action, . . . [it] do[es] not provide complete relief . . .” Mem. in Supp. of MSJ, p. 3 (Docket No. 19, Att. 1). Specifically, Ms. Taylor contends that she “is entitled to a judgment to determine the parties’ rights and obligations and to prevent Defendant from changing course in the future and repeating his unconstitutional rejection of her burial request.” Id. at p. 5. According to Ms. Taylor, “[o]nly a final order granting summary judgment can protect [her] interests and constitutional rights and [e]nsure that upon her death, her remains are in fact interred with her spouse.” Id.
MEMORANDUM DECISION AND ORDER - 6

17. Shortly thereafter, on November 6, 2014, the United States Court of Appeals for the Sixth Circuit reversed five consolidated district court cases upholding challenges to marriage restrictions on same-sex couples in four Sixth Circuit states. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (holding that involved states have no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out-of-state).5 Soon thereafter, the plaintiffs in the underlying district court cases submitted petitions for certiorari, requesting that the Supreme Court review the Sixth Circuit’s decision.
18. On December 30, 2014 and January 1, 2015, the Latta defendants submitted petitions for certiorari, requesting that the Supreme Court review the Ninth Circuit’s October 7, 2014 judgment affirming Judge Dale’s May 13, 2014 decision in Latta.
19. On January 9, 2015, the Ninth Circuit denied the Latta defendants’ petition for rehearing en banc.
20. On January 16, 2015, the Supreme Court granted review of the Sixth Circuit’s November 6, 2014 decision in DeBoer, limited to these questions: (1) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and (2) whether the Fourteenth Amendment requires a state to recognize a same-sex marriage licensed and performed in a state which does grant that right.
21. On January 21, 2015, the Ninth Circuit issued a mandate, stating that its October 7, 2014 judgment affirming Judge Dale’s decision in Latta became effective that same date.
5 Michigan, Kentucky, Ohio, and Tennessee defined marriage as a union between one man and one woman. The plaintiffs in those cases (two cases from Ohio) filed suits in federal district courts in their home states, claiming that the defendant state officials violated the Fourteenth Amendment to the United States Constitution by denying them the right to marry or to have marriages lawfully performed in another state given full recognition. Each district court ruled in the plaintiffs’ favor, but, on the defendants’ appeal, the Sixth Circuit consolidated the cases and reversed the judgments of the district courts. MEMORANDUM DECISION AND ORDER - 7

22. On June 26, 2015, the Supreme Court reversed the Sixth Circuit in DeBoer,
holding that the Fourteenth Amendment requires a state to license a marriage between same-sex
couples and to recognize a same-sex marriage lawfully licensed and performed out-of-state. See
Obergefell v. Hodges, 2015 WL 2473451 (2015). In doing so, Justice Kennedy, writing for the
majority, concluded:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Id. at *23.
23. On June 30, 2015, consistent with its holding in Obergefell, the Supreme Court
denied the Latta defendants’ December 30, 2014 and January 1, 2015 petitions for certiorari.
II. DISCUSSION
Article III of the Constitution limits federal courts to the adjudication of actual, ongoing
cases or controversies between litigants. See U.S. Const. Art. III, § 2, cl. 1. There is no question
that, when Ms. Taylor originally brought this action on July 7, 2014, a genuine dispute existed
between the parties – that is, whether Ms. Taylor, as a veteran, could be interred at the Idaho
State Veterans Cemetery along with her same-sex spouse, Ms. Mixner.
However, if a “live” controversy ceases to exist because of changed circumstances after
the complaint is filed, the claim is rendered moot and no longer justiciable. See Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1016 (9th Cir. 2006); see also Am. Rivers v.
MEMORANDUM DECISION AND ORDER - 8

Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (“A claim is moot if it has lost its character as a present, live controversy. . . . . If an event occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed.”); Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986) (“[T]he question is not whether the precise relief sought at the time [the case] was filed is still available. The question is whether there can be any effective relief.”). Relevant here, when an administrative agency has performed the action sought by a plaintiff in litigation, a federal court generally “lacks the ability to grant effective relief,” and the claim is moot. See Pub. Util. Comm’n v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). Defendant Brasuell moves to dismiss Ms. Taylor’s claims on such authority, arguing that, “[b]ecause Ms. Taylor has received all the relief requested in her amended complaint – internment of Ms. Mixner’s remains at the Veterans Cemetery – her case is now moot.” Mem. in Supp. of MTD, p. 4 (Docket No. 18, Att. 1). The “party moving for dismissal on mootness grounds bears a heavy burden.” In re Thorpe Insulation Co., 677 F.3d 869, 879 (9th Cir. 2012) (citation omitted).
Mr. Brasuell’s argument in this respect identifies certain touchstones of possible mootness to Ms. Taylor’s claims, but the fact that Ms. Mixner’s remains are now interred at the Idaho State Veterans Cemetery does not ipso facto compel a dismissal of the entire action. It is true that Ms. Taylor’s Amended Complaint requests that Ms. Mixner’s remains be interred at the Idaho State Veterans Cemetery. But to conclude that the Amended Complaint seeks only such relief overlooks Ms. Taylor’s overarching motivation – that, once she dies, her remains will be forever interred with Ms. Mixner’s remains at the Idaho State Veterans Cemetery. On this point, the Amended Complaint alleges in no uncertain terms:
Ms. Taylor brings this suit pursuant to 42 U.S.C. § 1983 for injunctive relief against the Defendant. Specifically, Ms. Taylor seeks a permanent injunction
MEMORANDUM DECISION AND ORDER - 9

directing Defendant to approve her Pre-Registration Application to be interred upon her death with her deceased spouse, Ms. Mixner, and to direct him to approve, upon Ms. Taylor’s upon death, her interment, together with her spouse at the Idaho State Veterans Cemetery. . . . .
Idaho’s refusal to respect Ms. Taylor’s [marriage to Ms. Mixner] subjects her to an inferior “second class” status as an Idahoan relative to the rest of the community. It denies her even the basic dignity of having her burial wishes, and the wishes of her spouse, respected by the State of Idaho, solely because of its refusal to recognize their lawful marriage. Idaho has denied Ms. Taylor the comfort and dignity of knowing that she will be able to honor her promise to her spouse. Namely, that upon Ms. Taylor’s death, their remains will be comingled for burial, so that they may rest together in peace. This has caused, and continues to cause Ms. Taylor great pain and anguish. . . . .
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment: Directing Defendant David E. Brasuell, as Administrator of the Idaho Division of Veterans Services, in his official capacity, to approve her Application for Pre-Registration to be interred along with her deceased spouse at the Idaho State Veterans Cemetery, and to approve Ms. Taylor’s interment upon her death together with her spouse.
Am. Compl., ¶¶ 8, 25, VI(A) (Docket No. 13) (capitalization in original, italics added). That Ms.
Taylor is entitled to be eventually buried at the Idaho State Veterans Cemetery, and Ms.
Mixner’s remains are currently interred there, presumably is of present comfort to Ms. Taylor
and to the respective families and loved ones of Ms. Taylor and Ms. Mixner. But such present
comfort is not enough when considering the scope of relief actually sought within Ms. Taylor’s
Amended Complaint.
To be clear, through this action, Ms. Taylor demands that, upon her death, she and Ms.
Mixner be interred together in perpetuity at the Idaho State Veterans Cemetery. Mr. Brasuell’s
actions since Ms. Taylor first initiated this proceeding should be credited; however they fall
short of providing certain assurance to Ms. Taylor that she and Ms. Mixner will be guaranteed a
reunification in death by virtue of their joint interment at the Idaho State Veterans Cemetery.
MEMORANDUM DECISION AND ORDER - 10

The final denouements of the Latta and Obergefell cases entitle her to such an assurance.6 This
relief remains outstanding to Ms. Taylor and she can seek such relief as part of this action’s
adjudication and eventual resolution. As a result, it cannot be said that the interment of Ms.
Mixner’s remains at the Idaho State Veterans Cemetery moots the balance of Ms. Taylor’s case.
Mr. Brasuell’s Motion to Dismiss is accordingly denied.
Separately, even when assuming this case to be otherwise moot, courts have long
recognized a “voluntary cessation” exception to mootness.7 Under this doctrine, the mere
6 This is particularly the case when considering that Ms. Taylor currently faces several significant health challenges. See Taylor Decl., ¶¶ 4 & 7 (Docket No. 19, Att. 3) (discussing Ms. Taylor’s chronic health issues, including cardiovascular disease and chronic obstructive pulmonary disease). Absent an order from this Court, Ms. Taylor arguably has no remedy if she passes away and Veterans Services proceeds to do something different than what they have represented they will do (inter both Ms. Taylor’s and Ms. Mixner’s remains together at the Idaho State Veterans Cemetery). See Opp. to MTD, pp. 7-9 (Docket No. 20) (“. . . Ms. Taylor needs relief now, during her lifetime, because under Idaho law, civil rights claims brought under 42 U.S.C. § 1983 abate upon death. . . . . Even though Latta v. Otter will be binding precedent in Idaho, there will be no one with standing to enforce it against Defendant with respect to Defendant’s obligation to permit the deceased spouses to be interred together in the Veteran’s Cemetery in perpetuity. . . . . Because civil rights actions abate upon death under Idaho law, that is the only way to ensure that Ms. Taylor can obtain the relief she has requested, including the incalculable peace of mind and security of knowing that Defendant must honor her request that she and her deceased spouse will be interred together after her death.”).
7 Other recognized exceptions to the mootness doctrine include (1) collateral legal consequences, (2) wrongs capable of repetition yet evading review, and (3) class actions where the named party ceases to represent the class. See Pilate v. Burrell, 415 F.3d 994, 998 (9th Cir. 2005). In her opposition to Mr. Brasuell’s Motion to Dismiss, Ms. Taylor argues that “[t]he possibility that [Mr. Brasuell] could renew his discrimination against [her] after her death,” represents the exception of a “wrong capable of repetition, yet evading review.” See Opp. to MTD, pp. 8-9 (Docket No. 20). This is a misapplication of the exception to the facts of this case. That exception applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Federal Election Com’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (internal citation omitted). It is a narrow exception and applies only in exceptional situations. See City of L.A. v. Lyons, 461 U.S. 95, 109 (1983). It “is concerned not with particular lawsuits, but with classes of cases that, absent the
MEMORANDUM DECISION AND ORDER - 11

cessation of a challenged practice (in this case, Veterans Services’ reversal of its original denial
of the Application vis á vis Ms. Mixner’s remains) “‘does not deprive a federal court of its power
to determine the legality of the practice” unless the party alleging mootness can show that 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, 189 (2000) (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Without the exception, “‘the courts would be
compelled to leave [t]he defendant . . . free to return to his old ways.’” Porter v. Bowen, 496
F.3d 1009, 1017 (9th Cir. 2007) (quoting United States v. Concentrated Phosphate Exp. Ass’n,
393 U.S. 199, 203 (1968)).
The standard for determining whether a case has been mooted by a defendant’s voluntary
conduct is “stringent.” Laidlaw, 528 U.S. at 189. “A case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Concentrated Phosphate, 393 U.S. at 203. “The ‘heavy burden of
persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up
again lies with the party asserting mootness.” Laidlaw, 528 U.S. at 189 (quoting Concentrated
Phosphate, 393 U.S. at 203).
exception, would always evade judicial review.” Protectionmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014). Election cases involving election laws that would inherently take more time to resolve than the election cycle permits are the typical sorts of cases invoking this exception. See, e.g., Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003) (“Election cases often fall within this exception, because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits.”). In contrast, here, there is no actual challenged action (let alone challenged action of a limited duration) – only the possibility of conduct that could/would be challenged and, even if so challenged, by someone other than Ms. Taylor. In the Court’s mind, these arguments more aptly speak to the “voluntary cessation” exception, not the “wrong capable of repetition, yet evading review” exception. Indeed, Ms. Taylor relies on the latter (and not the former) in her Motion for Summary Judgment. See Mem. in Supp. of MSJ, pp. 4-5 (Docket No. 19, Att. 1).
MEMORANDUM DECISION AND ORDER - 12

In further support of his argument that this case is moot, Mr. Brasuell contends that Ms. Taylor’s concern about possible future changes are wholly unfounded and therefore cannot create the requisite case or controversy establishing this Court’s jurisdiction. See Opp. to MSJ, pp. 1 & 5-6 (Docket No. 22) (“There is no valid factual basis for this alleged concern. Indeed, Veterans Services approved Plaintiff’s request to be interred at the Cemetery before she filed suit, and its commitment on that point has never wavered. Plaintiff’s alleged concern about possible future harms is far too speculative to create any justiciable controversy.”). Although persuasive on the issue of a litigant’s standing to bring a claim in the first instance,8 “[t]he Supreme Court has emphasized that the doctrine of mootness is more flexible than other strands of justiciability doctrine.” Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003). Standing and mootness are not interchangeable inquiries; rather, “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” See Laidlaw, 528 U.S. at 190.
Ms. Taylor raises concerns that Veterans Services may in fact perform an about-face and renege on its apparent approval to inter Ms. Taylor’s eventual remains with Mixner’s currentlyinterred remains at the Idaho State Veterans Cemetery. She points out that, at nearly every turn, Idaho state officials sought to overturn Latta and restore Idaho’s same-sex marriage ban. See Reply in Supp. of MSJ, pp. 3-5 & 7 (Docket No. 23) (“[I]t remains the State of Idaho’s position that the Latta decision is erroneous and that the state laws struck down in that case are constitutional and enforceable, which means it is not only likely, but virtually certain, that
8 Mr. Brasuell’s reliance on Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) reflects as much. See Opp. to MSJ, p. 6 (Docket No. 22). In Coons, the Ninth Circuit was addressing the doctrine of ripeness – an inquiry often treated under the rubric of standing. See Coons, 762 F.3d at 897. Coons did not deal with the mootness doctrine. MEMORANDUM DECISION AND ORDER - 13

Defendant will again enforce the marriage ban if given the opportunity to do so.”) (emphasis
added). This is true – even after Veterans Services interred Ms. Mixner’s remains at the Idaho
State Veterans Cemetery, Latta was in the cross-hairs of Idaho’s legal fight against same-sex
marriages. See, e.g., supra (filing petition for rehearing en banc with Ninth Circuit9 and
submitting petitions for certiorari on December 30, 2014 and January 1, 2015).
There is no question but that those on both sides of the argument raised in the Latta and
Obergefell cases have firm and deeply-felt convictions about the “rightness” of their particular
position. Further, the landscape left by Latta and Obergefell is still very warm to the touch.10
However, the remaining issues in this case must be decided against the judicial finish line of
those cases, not against the arguments raised along the way. In that space, this Court is not
persuaded that Veterans Services, via Mr. Brasuell, has borne its “formidable” burden of
establishing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur.” Concentrated Phosphate, 393 U.S. at 203. Perhaps, even without an
9 Technically, this preceded Ms. Mixner’s interment at the Idaho State Veterans Cemetery by seven days. See supra. Regardless, the petition was not denied until approximately three months later, during which time challenges to Latta’s mandate continued. See id.
10 The Court takes judicial notice that, on June 26, 2015, Idaho’s Governor, C.L. “Butch” Otter, issued the following news release concerning Obergefell, expressing his own disappointment in the decision:
Today’s decision is truly disappointing for states, including Idaho, where the people chose to define marriage for themselves as between one man and one woman. I have maintained from the very beginning that it should be the prerogative of the states – not the courts – to determine whether same-sex marriage is consistent with the values, character, and moral fabric of that particular state. That is why it was especially troubling that the Court treated the 10th Amendment as a footnote, instead of a guiding principle our founding fathers intended.
News Release, at http://www.gov.idaho.gov/mediacenter/press/pr2015/2 Feb/pr_40.html
MEMORANDUM DECISION AND ORDER - 14

enforceable order ensuring that Ms. Taylor and Ms. Mixner will be permanently interred
together at the Idaho Veterans Cemetery, they would nonetheless be so laid in perpetuity. But
notwithstanding the rulings in Latta and Obergefell, a future director at Veterans Services or the
Idaho State Veterans Cemetery (or some other applicable state actor) may come to view his or
her role as being responsible for deciding what is/is not constitutional under the law on matters
that may impact Ms. Taylor’s claimed right to be interred there with her same-sex spouse. It is
not unusual for legal precedent – even Supreme Court decisions – to be tested in such ways over
time to “settle the pond” on novel and evolving issues. Dismissal on the grounds of mootness
would be justified only if this possibility was categorically foreclosed or, said another way, if it
was absolutely clear that Ms. Taylor no longer had any need of the judicial protection that she
seeks. The record now before the Court does not support such a conclusion.11 For this separate
reason, Mr. Brasuell’s Motion to Dismiss is denied.
11 Mr. Brasuell reasonably contends that the “voluntary cessation” exception to the mootness doctrine cannot apply to save Ms. Taylor’s case because, in reality, “Veterans Services did not voluntarily choose to change its position regarding Ms. Taylor’s request to have Ms. Mixner’s remains interred at the [Idaho State Veterans] Cemetery” but, “[i]nstead, it permitted Ms. Mixner’s interment because the Ninth Circuit’s decision in Latta changed the law controlling Veterans Decisions’ decisions.” Opp. to MSJ, p. 7 (Docket No. 22); see also id. at pp. 6-8 (citing cases where changes in law are “usually” enough to render case moot); Sea-Land Serv., Inc. v. Int’l Longshoremen’s and Warehousemen’s Union, Locals 13, 63, and 94, 939 F.2d 866, 870 (9th Cir. 1991) (“‘[L]egally compelled’ cessation of such conduct is not ‘voluntary’ for purposes of this exception to the mootness doctrine.”). However, cases following this line of reasoning do not apply neatly here. In those cases, the plaintiffs would be able to bring litigation to vindicate their rights under controlling precedent. In contrast, here, Ms. Taylor’s requested remedy addresses a unique temporal situation – one that coalesces only after she dies (interring her remains with those of Ms. Mixner’s in the Idaho State Veterans Cemetery). But if Ms. Taylor – already in an infirm state – dies without first securing the requested order/judgment, she could be without a remedy when understanding that her section 1983 claims may cease upon her death. See supra. This Court is reluctant to put Ms. Taylor or any similarly-situated litigant in such a predicament by finding as a matter of law that her claim is moot. Regardless, as stated earlier in this Memorandum Decision and Order, effective relief remains available to Ms. Taylor. See id.
MEMORANDUM DECISION AND ORDER - 15

With Ms. Taylor’s claims still intact, the Court turns to Ms. Taylor’s Motion for Summary Judgment. There is no dispute that Ms. Taylor and Ms. Mixner were legally married in California in 2008. Now, with Latta and Obergefell providing the template upon which the states must recognize same-sex marriages, there is no reason for Ms. Taylor to wait longer. Ms. Taylor is entitled to have the assurance that there is a court order in place requiring that what she has a right to have happen if she were to pass away today, will happen when she does pass away. That is the relief she seeks and, equally importantly, her right.
Therefore, upon her death, Ms. Taylor shall be interred with her deceased spouse, Ms. Mixner, at the Idaho State Veterans Cemetery. Moreover, the State of Idaho, its political subdivisions, and its officers, employees, and agents, are enjoined from enforcing any constitutional provision, statute, regulation, or policy preventing qualified same-sex couples from being buried or interred together at the Idaho State Veterans Cemetery which, if the spouses were not of the same sex, would be otherwise valid under the laws of the state. Such remedies fall underneath the legal umbrella of Latta’s and Obergefell’s holdings. Ms. Taylor’s Motion for Summary Judgment is accordingly granted.
III. ORDER Based on the foregoing, IT IS HEREBY ORDERED THAT: 1. Defendant’s Motion to Dismiss (Docket No. 18) is DENIED; and 2. Plaintiff’s Motion for Summary Judgment (Docket No. 19) is GRANTED. Upon Ms. Taylor’s death, Defendant shall approve and facilitate her interment, together with her spouse, Ms. Mixner, at the Idaho State Veterans Cemetery.
MEMORANDUM DECISION AND ORDER - 16

3. Within 10 days of this Memorandum Decision and Order, Plaintiff shall submit a proposed form of judgment for the undersigned’s consideration.
DATED: July 9, 2015 Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 17

 
 Case 1:14-cv-00273-REB Document 39 Filed 09/22/15 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Case No. 1:14-cv-00273-REB

Plaintiff, v.

ORDER ADOPTING STIPULATION FOR AWARD OF ATTORNEYS’ FEES AND COSTS

DAVID E. BRASUELL, as Administrator of the Idaho Division of Veterans Services, in his official capacity,

(Docket No. 38)

Defendant.

This Court entered judgment in favor of Plaintiff on July 21, 2015. (Docket No. 31). As a prevailing party, Plaintiff is entitled to an award of her reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. In the interest of resolution of this matter without further litigation and the further accumulation of attorneys’ fees and costs, the Parties, by and through their counsel of record, have stipulated to an award of attorneys’ fees and costs to Plaintiff.
Accordingly, IT IS HEREBY ORDERED: 1. The State of Idaho shall pay on Defendant’s behalf, and the Plaintiff will accept, the sum total of seventy thousand dollars ($70,000.00) in full settlement of the attorneys’ fees and costs due to Plaintiff pursuant to Title 42 U.S.C. § 1988. The State of Idaho’s Board of Examiners has approved this negotiated payment of fees and costs. 2. More specifically, the State of Idaho shall pay to the National Center for Lesbian Rights, thirty-four thousand seven hundred and forty-four dollars and eighty-nine cents ($34,744.89), plus four hundred and fifty dollars ($450.00) in costs, for a total of thirty-five thousand one hundred and ninety-four dollars and eighty-nine cents ($35,194.89), and to pay
ORDER - 1

Case 1:14-cv-00273-REB Document 39 Filed 09/22/15 Page 2 of 2 Ferguson Durham, PLLC, thirty-four thousand eight hundred and five dollars and eleven cents ($34,805.11).
3. The applicable federal post-judgment interest rate is .33 per annum. The foregoing amounts shall be paid with interest at that rate from the date of this Order.
DATED: September 22, 2015 Honorable Ronald E. Bush U. S. Magistrate Judge
ORDER - 2

 
 Case 1:14-cv-273 Document <docnum> Filed <datefiled> Page 1 of 4
CONMAG,LCDG,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1.2 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:14−cv−00273−REB

Taylor v. Brasuell Assigned to: Judge Ronald E. Bush Cause: 42:1983 Civil Rights Act
Plaintiff Madelynn Lee Taylor

Date Filed: 07/07/2014 Date Terminated: 07/21/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Craig Durham Ferguson Durham, PLLC 223 N. 6th Street, Suite 325 Boise, ID 83702 208−345−5183 Fax: 208−906−8663 Email: chd@fergusondurham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah A Ferguson Ferguson Durham, PLLC 223 N. 6th Street Suite 325 Boise, ID 83702 208−345−5183 Fax: 208−906−8663 Email: daf@fergusondurham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher F Stoll National Center for Lesbian Rights 870 Market St, Suite 370 San Francisco, CA 94102 415−392−6257x320 Email: cstoll@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Minter National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415 392 6257 Fax: 415−392−8442 Email: sminter@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
David E Brasuell as Administrator of the Idaho Division of Veterans Services, in his official capacity

represented by W Scott Zanzig Office of the Idaho Attorney General, Civil Litigation POB 83720 Boise, ID 83720−0010 208−332−3556 Email: scott.zanzig@ag.idaho.gov

Case 1:14-cv-273 Document <docnum> Filed <datefiled> Page 2 of 4
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay R Smith OFFICE OF ATTORNEY GENERAL POB 83720 Boise, ID 83720−0010 (208) 334−4118 Fax: (208) 854−8073 Email: clay.smith@ag.idaho.gov ATTORNEY TO BE NOTICED

Date Filed 07/07/2014
07/07/2014 07/07/2014 07/07/2014 07/08/2014
07/10/2014 07/15/2014 07/15/2014 08/06/2014
08/29/2014 09/03/2014 09/10/2014
09/10/2014 09/11/2014

# Docket Text
1 COMPLAINT against David E Brasuell ( Filing fee $ 400 receipt number 0976−1179641.), filed by Madelynn Lee Taylor. (Attachments: # 1 Cover Sheet, # 2 Exhibit Marraige Certificate, # 3 Exhibit Honorable Discharge, # 4 Exhibit Application for Pre−Registration, # 5 Exhibit Rejection Letter)(Ferguson, Deborah)
2 MOTION FOR PRO HAC VICE APPEARANCE by Shannon P. Minter. ( Filing fee $ 225 receipt number 0976−1179652.)Deborah A Ferguson appearing for Plaintiff Madelynn Lee Taylor. Responses due by 7/31/2014 (Ferguson, Deborah)
3 MOTION FOR PRO HAC VICE APPEARANCE by Christopher F. Stoll. ( Filing fee $ 225 receipt number 0976−1179653.)Deborah A Ferguson appearing for Plaintiff Madelynn Lee Taylor. Responses due by 7/31/2014 (Ferguson, Deborah)
4 WAIVER OF SERVICE Returned Executed by Madelynn Lee Taylor. David E Brasuell waiver sent on 7/7/2014, answer due 9/5/2014. (Ferguson, Deborah)
5 DOCKET ENTRY ORDER approving 2 Motion for Pro Hac Vice Appearance of attorney Shannon Price Minter for Madelynn Lee Taylor; approving 3 Motion for Pro Hac Vice Appearance of attorney Christopher F Stoll for Madelynn Lee Taylor. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
6 NOTICE of Appearance by W Scott Zanzig on behalf of David E Brasuell (Zanzig, W)
7 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for David E Brasuell, Madelynn Lee Taylor re 6 Notice of Appearance, 1 Complaint, Consent/Objection to Magistrate due by 9/18/2014. (cjm)
8 Docket entry only − CONSENT to Magistrate Judge filed. (cjm) (Entered: 07/16/2014)
9 NOTICE of Hearing: Telephonic Scheduling Conference set for 9/10/2014 10:30 AM (Mtn.) in Telephonic Hearing − Boise Courtroom 7 before Judge Ronald E. Bush. (Attachments: # 1 Litigation Plan Materials− due no later than 8/29/14). * Instructions for preparation of Conference contained in this Notice with attachments.(lc)
10 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Madelynn Lee Taylor. (Durham, Craig)
11 ALL PARTIES HAVE CONSENTED TO PROCEED BEFORE A US MAGISTRATE JUDGE(cjm)
12 CASE MANAGEMENT ORDER. Amended Pleadings and Joinder of Parties due by 10/31/2014. Dispositive Motions due by 11/7/2014. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
15 Minute Entry for proceedings held before Judge Ronald E. Bush: Scheduling Conference held on 9/10/2014. Court to enter Case Management Order. (Court Reporter/ESR not recorded.) (so) (Entered: 09/12/2014)
13 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against David E Brasuell, filed by Madelynn Lee Taylor. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Ferguson, Deborah)

Case 1:14-cv-273 Document <docnum> Filed <datefiled> Page 3 of 4

09/11/2014 10/08/2014
10/28/2014 10/29/2014
10/29/2014
11/24/2014 11/24/2014 11/24/2014 12/11/2014 12/11/2014 12/16/2014
01/09/2015 01/09/2015 01/20/2015 01/28/2015
07/09/2015

14 CERTIFICATE OF SERVICE by Madelynn Lee Taylor re 13 for AMENDED COMPLAINT (Ferguson, Deborah) Modified on 9/16/2014 to create link (cjm).
16 DOCKET TEXT NOTICE of Hearing: Telephonic Status Conference set for 10/28/2014 01:30 PM (MTN.) in Telephonic Hearing − Boise Courtroom 7 before Judge Ronald E. Bush. * Ms. Ferguson shall initiate the Conference Call connecting the parties and the Court at (208) 334−1495.(lc)
17 Minute Entry for proceedings held before Judge Ronald E. Bush: Status Conference held on 10/28/2014. (Court Reporter/ESR lcase.) (lc)
18 MOTION to Dismiss W Scott Zanzig appearing for Defendant David E Brasuell. Responses due by 11/24/2014 (Attachments: # 1 Memorandum in Support of Motion to Dismiss, # 2 Declaration of James Earp, # 3 Exhibit A to Declaration of James Earp)(Zanzig, W)
19 MOTION for Summary Judgment Deborah A Ferguson appearing for Plaintiff Madelynn Lee Taylor. Responses due by 11/24/2014 (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Plaintiff Madelynn Lee Taylor)(Ferguson, Deborah)
20 RESPONSE to Motion re 18 MOTION to Dismiss filed by Madelynn Lee Taylor. Replies due by 12/11/2014.(Ferguson, Deborah)
21 CERTIFICATE OF SERVICE by Madelynn Lee Taylor re 20 Response to Motion to Dismiss (Ferguson, Deborah)
22 RESPONSE to Motion re 19 MOTION for Summary Judgment filed by David E Brasuell. Replies due by 12/11/2014. (Attachments: # 1 Statement of Material Facts)(Zanzig, W)
23 REPLY to Response to Motion re 19 MOTION for Summary Judgment filed by Madelynn Lee Taylor. (Attachments: # 1 Second Declaration of Madelynn Lee Taylor)(Durham, Craig)
24 REPLY to Response to Motion re 18 MOTION to Dismiss filed by David E Brasuell.(Zanzig, W)
25 ORDER TO SHOW CAUSE On or before 1/9/15 each of the parties shall submit a brief (no more than five pages) detailing the reasons why this action should not be stayed pending resolution of the Latta v. Otter, et al. action before the United States Court of Appeals for the Ninth Circuit (Case Nos. 14−35420 & 14−35421). Show Cause Response due by 1/9/2015.. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
26 RESPONSE TO ORDER TO SHOW CAUSE by Madelynn Lee Taylor. (Ferguson, Deborah)
27 RESPONSE TO ORDER TO SHOW CAUSE by David E Brasuell. (Zanzig, W)
28 NOTICE by Madelynn Lee Taylor re 26 Response to Order to Show Cause Denial of En Banc Petitions (Ferguson, Deborah)
29 NOTICE On 1/9/15 the 9th Circuit Court of Appeals for the 9th Circuit denied the petitions for rehearing en banc. Therefore, the action will not be stayed and the parties' respective Motions to Dismiss (Docket Nos. 18 & 19 ) will be taken up by the Court in its ordinary course of business. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (Entered: 01/29/2015)
30 MEMORANDUM DECISION AND ORDER Defendants Motion to Dismiss (Docket No. 18 ) is DENIED; and Plaintiff's Motion for Summary Judgment (Docket No. 19 ) is GRANTED. Upon Ms. Taylor's death, Defendant shall approve and facilitate her interment, together with her spouse, Ms. Mixner, at the Idaho State Veterans Cemetery. Within 10 days of this Memorandum Decision and Order, Plaintiff shall submit a proposed form of judgment for the undersigned's consideration. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

Case 1:14-cv-273 Document <docnum> Filed <datefiled> Page 4 of 4

07/21/2015
07/24/2015 07/24/2015
08/11/2015 08/20/2015
08/21/2015 08/23/2015 08/24/2015 09/22/2015 09/22/2015
09/24/2015

31 JUDGMENT in accordance with the Court's Memorandum Decision and Order 30 . Judgment is entered in favor of Plaintiff. This Judgment is effective immediately. The Clerk of Court is directed to close this case. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
32 STIPULATION To Extend Deadline To File Fee Petition by Madelynn Lee Taylor. (Ferguson, Deborah) Modified on 7/24/2015 to remove all capitalization from docket text (cjs).
33 DOCKET ENTRY ORDER ADOPTING 32 Stipulation. Plaintiff's briefing is due on or before August 21, 2015; Defendant's response is due on or before September 21, 2015; Plaintiff's reply is due on or before September 30, 2015. Signed by Judge Ronald E. Bush. (dg)
34 BILL OF COSTS by Madelynn Lee Taylor. Taxation of Costs due by 8/25/2015 (Stoll, Christopher)
35 MOTION for Attorney Fees − Craig Durham appearing for Plaintiff Madelynn Lee Taylor. Responses due by 9/14/2015 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Deborah A. Ferguson, # 3 Declaration of Craig H. Durham, # 4 Declaration of Shannon P. Minter, # 5 Declaration of Howard Belodoff, # 6 Declaration of Lauren Scholnick)(Durham, Craig)
36 STIPULATION TO EXTEND BRIEFING DEADLINES by Madelynn Lee Taylor. (Ferguson, Deborah)
37 DOCKET ENTRY ORDER ADOPTING 36 Stipulation. Defendant's response to Plaintiff's Motion for Fees is due on or before September 25, 2015. Plaintiff's reply is due on or before October 9, 2015. Signed by Judge Ronald E. Bush. (dg)
Reset Deadlines as to 35 MOTION for Attorney Fees. Responses due by 9/25/2015. Replies due by 10/9/2015. Per Order Dkt. 37. (cjs)
38 STIPULATION re 35 MOTION for Attorney Fees − by Madelynn Lee Taylor. (Ferguson, Deborah)
39 ORDER ADOPTING STIPULATION FOR AWARD OF ATTORNEYSFEES AND COSTS re 38 Stipulation. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
40 DOCKET ENTRY ORDER finding as moot 35 Motion for Attorney Fees. Signed by Judge Ronald E. Bush. (dg)