Case 2:14-cv-02518-DDC-TJJ Document 90 Filed 02/20/15 Page 1 of 12

IN THE UNITED STATED DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D., and DONNA
DITRANI, JAMES E. PETERS and GARY A.
MOHRMAN; CARRIE L. FOWLER and
SARAH C. BRAUN; and DARCI JO
BOHNENBLUST and JOLEEN M.
HICKMAN,
Plaintiffs,
v.

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)
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) Case No. 14-CV-2518-DDC-TJJ
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ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of
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Health and Environment and
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DOUGLAS A. HAMILTON, in his official
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th
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Capacity as Clerk of the District Court for the 7
Judicial District (Douglas county), and
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BERNIE LUMBRERAS, in her official capacity
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as Clerk of the District Court for the 18th
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Judicial District (Sedgwick County),
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NICK JORDAN, in his official capacity as
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Secretary of the Kansas Department of Revenue, )
LISA KASPAR, in her official capacity as Director )
of the Kansas Department of Revenues Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
)
Health Plan,
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Defendants.
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_________________________________________ )

REPLY IN SUPPORT OF MOTION OF DEFENDANTS JORDAN, KASPAR, AND

MICHAEL TO DISMISS

Defendants Nick Jordan, Lisa Kaspar, and Mike Michael, named in their respective
official capacities, have moved for dismissal of all claims asserted against any of them in the
First Amended Complaint for lack of subject matter jurisdiction and/or failure to state a federal
claim on which relief may be granted (document 79). Plaintiffs have filed a response (document
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83) that does not explicitly address the claims against defendant Kaspar. The response to the
motion to dismiss fails to establish either jurisdiction or substantive merit concerning the claims
against defendants Jordan and Michael. Because the response does not either establish subject
matter jurisdiction or articulate a claim against these three defendants on which relief may be
granted, the motion must be granted.
The response does not closely follow the format of the motion. The motion stated a
separate argument for each of the three moving defendants, and then added a fourth argument
addressing all claims concerning recognition of marriages performed in other states.
1. The claims [against defendant Jordan] relating to personal income taxes are barred by
the Eleventh Amendment, by the Tax Injunction Act and/or by principles of comity;
2. The claims [against defendants Jordan and Kaspar] relating to names on drivers
licenses do not state a federal question and are barred by the Eleventh Amendment;
3. The claims [against defendant Michael] relating to the administration of the Kansas
State Employee Health Plan do not state a federal question and are barred by the
Eleventh Amendment;
4. The claims [against all three moving defendants] relating to recognition of out-ofstate marriages do not state a federal question and are barred by Section 3 of the
Defense of Marriage Act.
The response to these claims appears to be as follows:
1. General references to equal protection rights are sufficient to state a federally
cognizable claim, even if there is no constitutional liberty interest implicated in the
administration of personal income tax laws, driver licensing laws, or employment
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related health insurance benefits;

2. Although Direct Marketing Association v. Brohl, 735 F.3d 904 (10th Cir. 2013)
would appear to support defendants motion, the Court should ignore it because
certiorari has been granted and because other circuits disagree with that decision;
3. The Tax Injunction Act should not be applied in this case because it was not applied
in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014);
4. The doctrine of comity ought not to apply because taxation of married persons
implicates noncommercial fundamental rights;
5. 28 U.S.C. 1738C should not be construed to permit Kansas to refuse to recognize
marriages performed in other states because doing so would violate plaintiffs equal
protection rights.
The issues raised in the response will be addressed in the order they are stated rather than trying
to fit the arguments into the format of the motion.
ARGUMENT AND AUTHORITIES
1. NO POTENTIALLY MERITORIOUS EQUAL PROTECTION CLAIM IS
PROPERLY PLED AGAINST THESE THREE DEFENDANTS.
The motion to dismiss challenged the legal sufficiency to state a claim on which relief
could be granted based on equal protection grounds. Mere mention of equal protection will not
suffice to state a claim. The First Amended Complaint sets forth no facts in support of a claim
against defendants Jordan, Kaspar, or Michael for violation of any plaintiffs equal protection
rights. No factual basis for concluding that Jordan, Kaspar, and Michael are applying Kansas
laws unequally to persons similarly situated to plaintiffs appears in the First Amended
Complaint. Statement of a bare legal conclusion does not state a claim on which relief may be
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granted against defendants Jordan, Kaspar, or Michael.

There is not even a conclusory allegation in the first amended complaint asserting that
any of these three defendants is treating plaintiffs differently than any other similarly situated
persons. All that is alleged is that these defendants enforce policies that one or another plaintiff
wants to avoid, without any reference to whether other similarly situated persons also are
expected to abide by the same rules and regulations. Such conclusory references are insufficient
to meet the pleading requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007). The narrative portions of the first amended complaint describe
plaintiffs contentions that the alleged constitutional right of same sex couples to marry should be
expanded to include constitutional protection for every activity that married persons ever engage
in. But these are legal contentions rather than factual allegations.
FACTUAL ALLEGATIONS CONCERNING TAXATION
Defendant Jordan is alleged to have overseen the issuance of a guidance document that
describes existing Kansas statutes concerning personal income tax returns filed by married
taxpayers. But plaintiffs Peters and Mohrman do not allege that they are treated any differently
than heterosexual married couples under the guidance. Instead they allege that they are treated
differently under Kansas law than they are treated under the Internal Revenue Code. See
paragraphs 34-36 of the first amended complaint. Their grievance about the difference between
federal tax forms and state tax forms does not state a claim for denial of equal protection. There
is no constitutional requirement that state income tax laws conform to federal income tax laws,
as explained in United States v. Windsor, __U.S.__, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013).
Peters and Mohrman do not complain that they are taxed any differently by the State of Kansas
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than a heterosexual married couple would be. No other plaintiff complains about income
taxation.
FACTUAL ALLEGATIONS CONCERNING DRIVER LICENSING
Plaintiffs Fowler and Braun allege that defendants Jordan and Kaspar refuse to let them
rely on Illinois marriage papers to accomplish a name change. But again there is no allegation
that a heterosexual couple from Illinois would be treated differently under Kansas law. K.S.A.
2014 Supp. 23-2506 plainly limits the procedure they sought to invoke for change of name to
marriages performed in the State of Kansas pursuant to K.S.A. 2014 Supp. 23-2511. No unequal
application of the law is described with regard to Fowler and Braun.
Plaintiffs Bohnenblust and Hickman allege that they were not allowed to restore their
premarital surnames appearing on their respective birth certificates by presenting a marriage
license that purported to legitimize those changes. But they do not allege that a heterosexual
couple would have been permitted to achieve name restoration in this manner. The statute relied
upon, K.S.A. 2014 Supp. 23-2506, only permits certain new names to be approved, and does not
authorize restoration of a former name using this method. No unequal treatment of similarly
situated persons is alleged.
FACTUAL ALLEGATIONS CONCERNING HEALTH INSURANCE
Four plaintiffs (two employees and two same-sex spouses) contend that their right to
participate in the Kansas State Employee Health Plan was unlawfully impaired or denied in
November of 2014. But they allege no facts that would establish entitlement to the insurance
coverage they seek, under present Kansas law. Neither do they allege that similarly situated
persons are treated differently. Eligibility for health insurance benefits under the Kansas State
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Employee Health Plan is controlled by K.A.R. 108-1-1, amended effective January 2, 2015,
which states in pertinent part:
(g) Eligible dependent participants.
(1) Any person enrolled in the health care benefits program as a primary participant may
enroll the following dependents, subject to the same conditions and limitations that apply
to the primary participant:(A) The primary participant's lawful wife or husband, as
recognized by Kansas law and subject to the documentation requirements of the
commission or its designee;
The regulation states only that a wife or husbands status is to be determined by Kansas law and
proved by documentation acceptable to the agency. It does not state whether same sex marriages
are to be recognized under Kansas law or not.
Assuming arguendo that allegations of disparate treatment of similarly situated insurance
applicants can be read into these allegations, they would not give rise to an equal protection
violation. In the context of insurance coverage, even apparently arbitrary distinctions among
classes of potential beneficiaries are not considered per se irrational or arbitrary, and similar laws
have repeatedly been held to pass constitutional scrutiny. See for example Weinberger v. Salfi,
422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Califano v. Boles, 443 U.S. 282, 99 S.
Ct. 2767, 61 L. Ed. 2d 541 (1979); Astrue v. Capato ex rel. B.N.C., __U.S.__, 132 S. Ct. 2021,
182 L. Ed. 2d 887, (2012); Johnson v. Califano, 656 F.2d 569 (10th Cir. 1981).
2. Direct Marketing Association v. Brohl, 735 F.3d 904 (10th Cir. 2013) CONTROLS
UNLESS AND UNTIL IT IS ACTUALLY OVERULED.
The contention that a grant of certiorari should nullify the effect of a circuit decision is
not legally correct. And plaintiffs attempts to distinguish the holdings of Direct Marketing
Association v. Brohl, 735 F.3d 904 (10th Cir. 2013) are logically untenable.
No plaintiff can avoid the effect of the Tax Injunction Act by personally disavowing any
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subjective purpose to restrain collection of state taxes, when the obvious effect of a permanent
injunction would be to restrain the collection of state income taxes from the same plaintiffs and
from other taxpayers governed by the same laws in future tax years. Plaintiffs are not asking the
Court solely for relief from the burden of filling out forms. They are asking the Court to prevent
the collection of the information contained on those forms, as well as preventing the use of that
information to levy state income taxes. The married plaintiffs would not be satisfied with an
injunction that allowed the State of Kansas to tax them as single persons as long as the state does
all of the paperwork. This is precisely the false distinction that required dismissal of the Direct
Marketing case, the impairment by a non-taxpayer plaintiff of the states ability to collect the
information needed to collect taxes by objecting to the obligation to fill out the mandated
paperwork.
Plaintiffs Peters and Mohrman allege that they did not file jointly for tax year 2013 either
for state or federal income taxes. By filing separately they are taxed the same as they would be if
they were unmarried taxpayers. But nothing prevents them from filing jointly in the future, if the
relief they seek is granted. They would only have standing to object to a rule that would
hypothetically prevent them from filing jointly if they desired to do so. Joint filers are taxed
differently than they would be if they filed a joint return, under Kansas law, as was explained in
Peden v. State, 261 Kan. 239, 930 P.2d 1 (1996). The unfounded supposition in the response that
the State of Kansas would not suffer significant economic harm if the injunctive relief sought in
this case is granted is not a fact alleged in the first amended complaint. That assumption cannot
be relied upon to combat a motion to dismiss on the pleadings, especially since the assumption is
contradicted by the facts recited in the Peden case.
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3. Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) DOES NOT EXEMPT SAME
SEX MARRIAGE LAWSUITS FROM THE TAX INJUNCTION ACT OR
FROM THE TRADITIONAL DOCTRINE OF COMITY APPLICABLE TO
SUITS SEEKING TO INTERFERE WITH STATE TAXATION METHODS.
Plaintiffs argue that the mention of unequal income taxation as one of the adverse
consequences asserted by the plaintiffs in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)
should be construed as a finding that the Tax Injunction Act and principles of comity do not
apply to similar cases. This conclusion is untenable for multiple reasons.
No relief was sought in Kitchen against any defendant responsible for administering
income tax laws, and the injunction entered in that case was not directed at tax collection
activities. Taxation was asserted only as a ground for standing to complain about Oklahomas
marriage laws, and it was asserted by parties who alleged that they wanted to take advantage of
the lower rate of taxation available to married couples rather than seeking to prohibit the state
from mandating full and complete reporting of separate income information. Because the relief
sought was different, and because there was no party defendant who could invoke the Tax
Injunction Act, any comments concerning the possible propriety of a federal court injunction
would have been pure dicta.
The contention that principles of comity ought not to apply is a logically circular ipse
dixit seeking to bootstrap a wholly unjustifiable conclusion. No authority is cited for the
conclusion that taxation of married persons implicates a fundamental constitutional right, just
because the right to marry is a fundamental right. Differential taxation of married persons
compared to single persons does not implicate any fundamental right. These plaintiffs do not
contend that they are singled out for adverse tax treatment because they are married; they claim
they are being treated differently because they are homosexuals. That claim is not subject to
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heightened scrutiny. See for example Druker v. C.I.R., 697 F.2d 46 (2d Cir. 1982); Mapes v.
United States, 576 F.2d 896 (Ct.Cl.1978), cert. denied 439 U.S. 1046 (1978).
The effect of the Tax injunction Act would be to require dismissal without prejudice of
the claims relating to alleged discriminatory income taxation practices, for lack of subject matter
jurisdiction in a federal district court. These claims could still be litigated in the usual state
proceedings that resolve disputes concerning state income taxes.
4. THE EXPRESS AUTHORITY GRANTED TO STATES BY 28 U.S.C.A. 1738C
PERMITS KANSA TO GIVE NO EFFECT TO SAME SEX MARRIAGES
ENTERED INTO OUTSIDE THE STATE OF KANSAS.
Plaintiffs argument concerning the ineffectiveness of 28 U.S.C.A. 1738C is illogical
and circular. Plaintiffs apparently contend that a federal district court can decide to give no effect
to an act of Congress without declaring it to violate the Constitution, as long as plaintiffs refuse
to comply with F.R.C.P. 5.1. Plainly this conclusion would dispense entirely with F.R.C. P. 5.1
and render its provisions meaningless. The rule requires formal notice to be given to the United
States Attorney General whenever litigation in which the United States is not a party calls into
question the constitutionality of an act of Congress:
Rule 5.1. Constitutional Challenge to a Statute--Notice, Certification, and Intervention
(a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing
into question the constitutionality of a federal or state statute must promptly:
(1) file a notice of constitutional question stating the question and identifying the paper
that raises it . . .
The rule does not say that notice is required only when a plaintiff directly asserts a claim that
seeks explicitly to declare a federal statute unconstitutional. Defendants can raise constitutional
issues also. See Benally v. Herbert, No. 2:12-CV-00275-DN-EJF, 2014 WL 4698655 (D. Utah
Sept. 19, 2014). The defendant, not the plaintiff, raised issues concerning the constitutionality of
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a federal statute as a defense in Oklahoma ex rel Edmondson v. Pope, 516 F.3d 1214 (10th Cir.
2008), triggering F.R.C.P. 5.1.
There is no logical room between an argument that a statute is unavailable because it
cannot be applied constitutionally and an argument that the statute would be unconstitutional as
applied. Either contention draws into question the constitutionality of the statute. If 28
U.S.C.A. 1738C is a constitutionally valid exercise of the power of Congress to give definition
to the Full Faith and Credit Clause, then Kansas has the constitutional authority to disregard
same-sex marriages entered into in other states. Any argument that would nullify the laws of
Kansas must be equally destructive of the federal statute that authorizes the law which plaintiffs
seek to nullify. If the plaintiffs in this case are not willing to shoulder the burden of mounting a
successful constitutional challenge to 28 U.S.C.A. 1738C, then their claims must fail, unless
they are rescued by a decision that arrives before their claims are dismissed. There has never
been any doubt that the purpose of Congress in passing 28 U.S.C.A. 1738C was to achieve the
result that plaintiffs want this court to undo. There is also no doubt that the statute remains
enforceable and legally effective until it is properly declared unconstitutional. If that is to occur,
the decision will come in the pending case of DeBoer v. Snyder, 2015 WL 213650 (U.S. Jan. 16,
2015).
Any challenge to 28 U.S.C.A. 1738C is in essence a demand for the extension of the full
faith and credit clause beyond the limits defined by the United States Supreme Court and by
Congress, to compel states to accept the domestic relations laws of every other state. No such
interpretation has ever been placed on the Full Faith and Credit laws. See, for example, Williams
v. State of N.C., 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (U.S. 1945) rejecting the claim
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that North Carolina was constitutionally obligated to recognize a Nevada divorce; and In re
Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001), aff'd in part, rev'd in part, 273
Kan. 191, 42 P.3d 120 (2002), concluding that Kansas is not obligated to identify the gender of a
purported marital partner under Wisconsin law rather than Kansas law. None of the claims
asserted in the first amended complaint is distinguishable from the claims rejected in Williams v.
State of N.C., supra. None of the plaintiffs claims to have a judgment entered by the courts of
another state in litigation where there was jurisdiction over the parties and the subject matter,
which Kansas is refusing to recognize. Kansas is not constitutionally obligated to recognize a
marriage entered into by two Kansas residents in another state any more than it would be
obligated to recognize a divorce obtained by Kansas residents in another state.
CONCLUSION
The claims against defendants Jordan, Kaspar, and Michael must be dismissed, either
with prejudice or without, for all of the reasons described above and in their motion to dismiss.

Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
s/ Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420; Fax: (785) 296-6296
Email: [email protected]
Attorney for Defendants Jordan, Kaspar and
Michael
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CERTIFICATE OF SERVICE
This is to certify that on this 20th day of February, 2015, a true and correct copy of the
above and foregoing was filed and served via the Courts electronic filing system upon Plaintiffs
counsel of record, Stephen Douglas Bonney, ACLU Foundation of Kansas, 3601 Main Street,
Kansas City, MO 64111, Mark P. Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100,
Kansas City, MO 64111, [email protected] and [email protected] and Joshua
A. Block, American Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY
100004, [email protected].
s/Steve R. Fabert
Steve R. Fabert
Attorney for defendants Jordan, Kaspar, and Michael

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