Marie et al v. Moser et al

Filing 62

MEMORANDUM AND ORDER denying 53 Renewed Motion to Intervene. Signed by District Judge Daniel D. Crabtree on 12/18/2014. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAIL MARIE et al.,
Plaintiffs,
v.
Case No. 14-cv-02518-DDC/TJJ
ROBERT MOSER, M.D. et al.,
Defendants.

MEMORANDUM AND ORDER
Westboro Baptist Church (“WBC”) has filed a Renewed Motion to Intervene as a
defendant in this case (Doc. 53). WBC filed its first Motion to Intervene on October 26, 2014
(Doc. 19). And though the Court denied that motion (Doc. 35), it invited WBC to file an amicus
brief. On November 22, 2014, plaintiffs filed their First Amended Complaint (Doc. 52), which
includes new plaintiffs, new defendants, and asserts marriage recognition claims. WBC filed its
Renewed Motion to Intervene in response to plaintiffs’ First Amended Complaint. None of the
existing parties filed a response to WBC’s Renewed Motion to Intervene within the time limits
imposed by D. Kan. Rule 6.1(d)(1). Thus, WBC’s motion is ripe for ruling. After considering
the arguments contained in its motion, the Court denies WBC’s Renewed Motion to Intervene
for the reasons explained below.
Analysis
WBC is an independent church located in Topeka, Kansas. For nearly 25 years, WBC
members have engaged in picketing, protesting, and other visible forms of public testimony
against what they consider to be the “proud ruinous sins of this generation,” including
homosexuality. WBC asserts an interest in preventing the State of Kansas from affording

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respect, dignity, and social approval to same-sex marriages. It also claims an interest in
preventing the state of Kansas from requiring it to participate in and honor same-sex marriages.
A. Plaintiff’s First Amended Complaint
On November 26, 2014, plaintiffs filed their First Amended Complaint, which added the
following six plaintiffs. James Peters and Gary Morhman are a same-sex couple residing in
Douglas County, Kansas. Mr. Peters and Mr. Morhman have been in a relationship for more
than thirty years and entered a same-sex marriage under the laws of Iowa in 2010. Carrie Fowler
and Sarah Braun are a same-sex couple residing in Jefferson County, Kansas. In June 2014, they
entered into a same-sex marriage under the laws of Illinois. Darci Jo Bohnenblust and Joleen
Hickman are a same-sex couple residing in Riley County, Kansas. On November 13, 2014, Ms.
Bohnenblust and Ms. Hickman received a marriage license in Riley County, Kansas and married
during a ceremony performed that same day.
Plaintiffs also named three new defendants in their First Amended Complaint: Nick
Jordan, Secretary of the Kansas Department of Revenue; Lisa Kaspar, Director of the Kansas
Department of Revenue’s Division of Motor Vehicles; and Mike Michael, Director of Kansas’
State Employee Health Plan. Plaintiffs presumably added the new parties to address standing
issues on their broadened claims. In particular, they have added plaintiffs who claim to have
standing to seek recognition of out-of-state same-sex marriages and defendants who arguably
occupy state government positions responsible for administering the collateral rights and benefits
that Kansas gives to couples in legally recognized marriages.
WBC argues that the First Amended Complaint confirms the theme of its original Motion
to Intervene—namely, that same-sex marriage plaintiffs will continue to litigate until the rights
they assert “lap over onto the churches of Kansas, including WBC,” and until same-sex couples

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“get the official sanction of the religious pillar of society.” WBC argues that such an outcome
would amount to an impairment of its protectable interest in religious expression, and,
accordingly, it seeks to intervene as a defendant in this lawsuit under Fed. R. Civ. P. 24(a) and
(b).
B. Intervention of Right
Rule 24 recognizes two types of intervention: intervention as a matter of right and
permissive intervention. Intervention as a matter of right under Rule 24(a) is mandated when a
federal statute gives the applicant an unconditional right to intervene or when the applicant
satisfies each of four conditions: (1) the applicant has moved for intervention timely; (2) the
applicant has a significantly protectable interest relating to the property or transaction that is the
subject of the action; (3) the applicant is situated such that the disposition of the action may
impair or impede the party’s ability to protect that interest; and (4) the applicant’s interest is not
represented adequately by existing parties. Alameda Water & Sanitation Dist. v. Browner, 9
F.3d 88, 90 (10th Cir. 1993). “Failure to satisfy any one of the requirements is fatal to the
application, and [the Court] need not reach the remaining elements if one of the elements is not
satisfied.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). When
it ruled on the first Motion to Intervene, the Court concluded that WBC had failed to carry its
burden to show that the current defendants would not represent WBC’s interest adequately, and,
therefore, denied the motion without reaching the remaining factors. The Court concludes WBC
has failed to show that this action has changed in a way that justifies a different ruling on its
Renewed Motion to Intervene.
When this Court denied WBC’s first Motion to Intervene, it found that the ultimate
objectives of the existing defendants and WBC are the same—both seek to uphold Kansas’

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constitutional and statutory prohibitions against same-sex marriage. The Court noted that when a
prospective intervenor shares an ultimate objective with the existing parties, a presumption of
adequate representation arises. Hodes & Nauser, MDs, P.A. v. Moser, No. 2:11-CV-02365-CMKMH, 2011 WL 4553061, at *3 (D. Kan. Sept. 29, 2011). The prospective intervenor must
overcome this presumption by making a “compelling showing” to the contrary, which, the Court
concluded, WBC had failed to do. WBC now makes several new arguments that the new claims
and parties in the First Amended Complaint present new circumstances and they require the
Court to permit WBC to intervene.
First, WBC clams that plaintiff’s Amended Complaint presents a possibility of a broad
continuum of outcomes, over which WBC and the existing defendants’ interests might diverge.
WBC presumably makes this argument because the Court distinguished New Mexico OffHighway Vehicle Alliance v. United States Forest Serv. (“NMOHVA”), 540 F. App’x 877, 878
(10th Cir. 2013) on this basis when it denied WBC’s first Motion to Intervene.
[I]n NMOHVA, there existed the possibility that the district court would enjoin or
modify the Travel Management Plan only in part. Id. at 881-82. Here, there is
not a continuum of possible outcomes along which WBC’s interest and the
existing defendants’ interest may diverge. Rather there are only two possible
outcomes: either the Court permits Kansas to continue enforcing its same-sex
marriage ban, or the Court enjoins Kansas from enforcing the ban. WBC and the
existing defendants both seek the former result.
Doc. 35 at 6. WBC has not persuaded the Court that this case is any more similar to NMOHVA
simply because plaintiffs have added recognition claims. The scope of relief sought by plaintiffs
may have expanded, but there are still only limited outcomes that could result from this
litigation: either the defendant state agencies must recognize plaintiff’s same-sex marriages, or
they may continue to enforce Kansas’ prohibition on recognizing same-sex marriages. As the

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Court explains below, none of the possible outcomes are ones that require WBC to intervene to
protect its interest in freely exercising its religious beliefs.
Moreover, WBC’s argument for intervention as a matter of right does not rely on the
issues at stake in the current litigation. Instead, their arguments focus on issues that might be at
stake if same-sex couples continue to litigate civil rights claims based on sexual orientation.
WBC relies primarily on the argument that plaintiffs, by amending their Complaint to include
recognition claims, have confirmed WBC’s concern that same-sex marriage proponents will “not
rest until local and state government is largely occupied with meeting their demands and
satisfying their needs.” Doc. 53 at 3. The “highly likely” result of the expanding scope of this
litigation, WBC argues, is that plaintiffs eventually “will include claims that the government
should require all churches to marry them upon demand” and, therefore, “WBC is entitled to
assert its interests to be protected from being forced to participate in this soul-crushing nationdestroying state-bankrupting sin.” Doc. 53 at 9.
The Court need not speculate about the course of this litigation or the prospects of
additional litigation because the adequacy of representation element “is to be determined by a
litigation’s condition at the time of the application to intervene.” Pierson v. United States, 71
F.R.D. 75, 80 (D. Del. 1976) (citation omitted). Based on the case’s current state, the Court
finds that existing defendants who seek to uphold Kansas same-sex marriage and recognition
bans adequately represent WBC’s interest on the issues currently before the Court.
Next, WBC challenges the Kansas Attorney General’s capability and willingness to
represent its interest in this case. WBC claims that the Kansas Attorney General can no longer
represent WBC’s interest in this litigation because of his “apparently waning interest in these
new issues.” WBC worries that this will be like other same-sex marriage litigation where the

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state has declined to defend its laws vigorously. The Court finds no basis for this concern.
Counsel from the Kansas Attorney General’s Office submitted extensive briefing before the
preliminary injunction hearing (Docs. 14, 15) and had continued to conduct additional research
and formulate arguments up until the morning of the preliminary injunction hearing (Doc. 24).
After the Court issued the order granting a preliminary injunction, defendants appealed the order
to Tenth Circuit (Doc. 30), and to the United States Supreme Court (Docs. 41, 42). Far from
showing a “waning interest,” the record reflects that the Kansas Attorney General’s Office has
advanced substantive arguments in defense of the challenged laws and exhausted all procedural
mechanisms for appealing the preliminary injunction. In short, the Kansas Attorney General’s
Office has discharged its statutory duty to defend these laws from constitutional challenge
vigorously. See K.S.A. § 75-702. Accordingly, the Court declines to conclude that existing
defendants lack the willingness or ability to represent WBC’s interest adequately.
WBC cites the Tenth Circuit’s decision in Kitchen v. Herbert, 755 F.3d 1193, 1227 (10th
Cir. 2014) to support its claim for intervention as a matter of right. Kitchen suggests, WBC
argues, that religious organizations should not wait until the threat of someone asserting a legal
duty to perform same-sex marriages exists (or otherwise recognize same-sex marriage within
their ministries) “is on their doorstep before they could seek relief,” or that they must “pursue
separate litigation” to assert their rights. Doc. 53 at 10. WBC cites the following passage from
Kitchen:
We also emphasize, as did the district court, that today’s decision relates solely to
civil marriage . . . [R]eligious institutions remain as free as they always have been
to practice their sacraments and traditions as they see fit . . . we continue to
recognize the right of the various religions to define marriage according to their
moral, historical, and ethical precepts. Our opinion does not intrude into that
domain or the exercise of religious principles in this arena. The right of an
officiant to perform or decline to perform a religious ceremony is unaffected by
today’s ruling.
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755 F.3d at 1227. In the Court’s judgment, WBC’s interpretation of this passage is simply
mistaken.
Here, the Tenth Circuit was clarifying that its ruling entitling same-sex to civil marriage
rights did not make any determinations about laws governing the exercise of religious beliefs
about marriage. Id. “‘[N]o religious organization will have to change its policies to
accommodate same-gender couples, and [] no religious clergy will be required to solemnize a
marriage in contravention of his or her religious beliefs.’” Id. (quoting Griego v. Oliver, 316
P.3d 865, 871 (N.M. 2013)). As the Tenth Circuit demonstrated in Kitchen, a court can
adjudicate claims for civil marriage rights without deciding religious organizations’ free exercise
rights. WBC’s free exercise rights likewise are not presently at issue in this case. WBC’s
unabashed and unsupported speculation that the future litigation objectives of same-sex marriage
advocates might, someday, implicate its free expression rights does not mean that WBC has a
significant protectable interest currently.
The remaining arguments asserted by WBC only describe how the arguments it would
make to the Court differ from those advanced by existing defendants. The Court already
considered this argument when it denied WBC’s first Motion to Intervene and rejected it:
In sum, the differences in interests that WBC identifies only amount to
differences in arguments that WBC would like to assert. This is an insufficient
basis to conclude WBC’s interests are not adequately represented by the existing
defendants. An applicant for intervention by a party who wishes only to assert
different arguments than the government can do so just as effectively by
participating as an amicus curiae. San Juan Cnty., 503 F.3d at 1206 (citing Maine
v. Director, U.S. Fish & Wildlife Service, 262 F.3d 13, 18-20 (1st Cir. 2001)
(affirming denial of intervention where prospective intervenors would present an
argument that the government was highly unlikely to make because they could
present the arguments in capacity of amicus curiae).
Doc. 35 at 6. The Court again concludes the likelihood of WBC asserting different arguments
than those asserted by existing defendants is an insufficient basis to conclude the existing
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defendants do not adequately represent WBC’s interests. If WBC has arguments it would like
the Court to consider, it may assert them in an amicus brief. In sum, WBC has failed to show
that plaintiffs’ new claims require the Court to change its conclusion that WBC is not entitled to
intervention as a matter of right.
C. Permissive Intervention
WBC also seeks permissive intervention. Under Fed. R. Civ. P. 24(b), the Court, in its
discretion, may permit an applicant to intervene if the applicant “is given a conditional right to
intervene by federal statute” or “has a claim or defense that shares with the main action a
common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(A)-(B); Arney v. Finney, 967 F.2d
418, 421 (10th Cir. 1992) (“Permissive intervention is a matter within the sound discretion of the
district court.” (quotations omitted)).
The Court originally declined to grant permissive intervention because it concluded that
allowing WBC to intervene with full-party status would clutter the litigation without providing
any compensating benefit to the Court or the parties. WBC claims it has particular experience
litigating constitutional issues, having asserted the rights of dissenting religious voices
throughout the country and before the Supreme Court of the United States. This expertise, WBC
contends, will assist the Court in resolving the unique constitutional questions presented in this
case.
WBC may have extensive experience litigating their rights to free exercise of religion.
But as the Court explained above, plaintiffs here only seek the right to marry and the right to
have the state recognize their marriages as valid. These claims only affect marriage in the
civil—not the religious—realm. Any expertise it holds, therefore, is not germane to the claims
now before the Court. Moreover, WBC’s filings reflect a desire to litigate controversies that do

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not share common questions of fact or law with the claims in this case. Those filings confirm the
Court’s concern that affording WBC full-party status would clutter the litigation without aiding
the Court or the parties’ ability to resolve the issues that are actually before the Court. As a
result, the Court, in its discretion, declines to allow WBC to intervene permissively.
The Court will permit WBC to retain its status as amicus curiae in this case. WBC may
continue to file amicus briefs asserting the arguments it would like the Court to consider. This
approach will permit WBC to present its arguments to the Court while avoiding the procedural
compilations that come with granting full-party status.
IT IS THEREFORE ORDERED BY THE COURT THAT that WBC’s Renewed
Motion to Intervene under Fed. R. Civ. P. 24(a) and (b) is denied (Doc. 53). The Court also
denies WBC’s request for oral argument on their Motion to Intervene because it has presented its
argument comprehensively and effectively in its motion papers. If WBC wishes to file an
amicus brief with the Court on any future motions, it must do so by filing it on defendants’ due
date, as it applies to that motion. The amicus briefs shall conform to D. Kan. Rule 7.6.
IT IS SO ORDERED.
Dated this 18th day of December, 2014, at Kansas City, Kansas.
s/ Daniel D. Crabtree ____
Daniel D. Crabtree
United States District Judge

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