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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

Andrea Andi Mooneyham,

Plaintiff,v.

Ozark Fire Protection District, a political

subdivision of the State of Missouriand municipal corporation,

Defendant.

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No. 6:14-cv-3496-MDH

SUGGESTIONS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Table of Contents

Table of Authorities ........................................................................................................................ 2

A. Cases ....................................................................................................................... 2

B. Statutes .................................................................................................................... 7

C. Missouri Constitution.............................................................................................. 7

D. U.S. Constitution ..................................................................................................... 7

I. Introduction ......................................................................................................................... 8

II. Factual Background ............................................................................................................ 9

III. Argument .......................................................................................................................... 12

A. Standard for a Preliminary Injunction................................................................... 12

B. Plaintiff is likely to prevail on the merits.............................................................. 12

C. The remainingDataphasefactors weigh in favor of a preliminary injunction..... 23

IV. Conclusion ........................................................................................................................ 24

Case 6:14-cv-03496-MDH Document 9 Filed 12/02/14 Page 1 of 26

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Table of Authorities

A. Cases

Amos v. Higgins,

996 F. Supp. 2d 810 (W.D. Mo. 2014) ............................................................................. 22

Back v. Hastings on Hudson Union Free Sch. Dist.,

365 F.3d 107 (2d Cir. 2004)............................................................................................... 17

Barrier v. Vasterling,

No. 1416-CV03892, 2014 WL 4966467 (Mo. Cir. Ct. Oct. 3, 2014) ......................... passim

Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014) ............................................................................................. 20

Beall v. London City Sch. Dist. Bd. of Educ.,

No. 2:04-cv-290, 2006 WL 1582447 (S.D. Ohio June 8, 2006) ........................................ 21

Califano v. Goldfarb,

430 U.S. 199 (1977) ........................................................................................................... 19

Citizens for Equal Protection v. Bruning,

455 F.3d 859 (8th Cir. 2006) ............................................................................................. 20

Cohen v. Cohama Cnty., Miss.,

805 F. Supp. 398 (N.D. Miss. 1992) .................................................................................. 23

Commc'ns Workers of Am., Dist. One, AFL-CIO v. NYNEX Corp.,

898 F.2d 887 (2d Cir. 1990)............................................................................................... 24

Cornerstone Consultants, Inc. v. Prod. Input Solutions, L.L.C. ,

789 F. Supp. 2d 1029 (N.D. Iowa 2011) ............................................................................ 20


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Dataphase Sys., Inc. v. C L Sys., Inc.,

640 F.2d 109 (8th Cir. 1981) ................................................................................. 12, 13, 23

Davis v. Passman,

442 U.S. 228 (1979) ........................................................................................................... 17

Dawkins v. Richmond Cnty. Sch.,

No. 1:12CV414, 2012 WL 1580455 (M.D.N.C. May 4, 2012) ......................................... 20

Diaz v. Brewer,

656 F.3d 1008 (9th Cir. 2011) ........................................................................................... 20

Doe v. S. Iron R-1 Sch. Dist.,

453 F. Supp. 2d 1093 (E.D. Mo. 2006).............................................................................. 24

Edwards v. McNeill,

894 S.W.2d 678 (Mo. App. W.D. 1995) ............................................................................ 14

Glen v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ................................................................................... 18, 19

Glover v. Williamsburg Local Sch. Dist. Bd. of Educ.,

20 F. Supp. 2d 1160 (S.D. Ohio 1998) .............................................................................. 21

Hafer v. Melo,

502 U.S. 21 (1991) ............................................................................................................. 14

Hall v. BNSF Ry. Co.,

No. C132160 RSM, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ........................... 17

Heckler v. Mathews,

465 U.S. 728 (1984) ........................................................................................................... 26


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Hutchinson v. Cuyahoga Cnty.Bd. of Cnty. Comrs,

No.1:08-CV-2966, 2011 WL 4452394 (N.D. Ohio Sept. 26, 2011)................................. 22

In re Levenson,

560 F.3d 1145 (9th Cir. Jud. Council 2009) ...................................................................... 18

Jernigan v. Crane,

No. 4:13-cv-00410 KGB, 2014 WL 6685391 (E.D. Ark. Nov. 25, 2014) ........................ 18

Jolly v. Coughlin,

76 F.3d 468 (2d Cir.1996).................................................................................................. 23

Kentucky v. Graham,

473 U.S. 159 (1985) ........................................................................................................... 14

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013) ................................................................................ 18

L.A. Dept of Water & Power v. Manhart,

435 U.S. 702 (1978) ..................................................................................................... 17, 18

Lathrop v. City of St. Cloud, Minn.,

Civ. No. 10-2361(DWF/LIB), 2012 WL 185780 (D. Minn. Jan. 23, 2012) ...................... 20

Latta v. Otter,

Nos. 14-35420, 14-35421, 12-17668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) ............ 18

Lawson v. Kelly,

No. 14-0622-CV-W-ODS, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014) ........................ 18

McCullough v. AEGON USA Inc.,

585 F.3d 1082 (8th Cir. 2009) ........................................................................................... 20


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Monell v. New York City Dept of Social Services,

436 U.S. 658 (1978) ........................................................................................................... 14

Neel v. Strong,

114 S.W.3d 272 (Mo. App. E.D. 2003) ............................................................................. 15

Norton v. Shelby Cnty.,

118 U.S. 425 (1886) ........................................................................................................... 14

Overstreet v. LexingtonFayette Urban Cnty. Gov't,

305 F.3d 566 (6th Cir.2002) .............................................................................................. 23

Papasan v. Allain,

478 U.S. 265 (1986) ........................................................................................................... 14

Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III Sch. Dist.,

853 F. Supp. 2d 888 (W.D. Mo. 2012) .............................................................................. 12

PCTV Gold, Inc. v. SpeedNet, LLC,

508 F.3d 1137 (8th Cir. 2007) ........................................................................................... 13

Phelps-Roper v. City of Manchester, Mo.,

697 F.3d 678 (8th Cir. 2012) ............................................................................................. 24

Phelps-Roper v. Nixon,

545 F.3d 685 (8th Cir. 2008) ............................................................................................. 24

Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action,

558 F.2d 861 (8th Cir. 1977) ............................................................................................. 23

Planned Parenthood v. Rounds,

530 F.3d 724 (8th Cir. 2008) ............................................................................................. 13


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Reynolds v. Sims,

377 U.S. 533 (1964) ........................................................................................................... 22

Rosenbrahn v. Daugaard,

No. 4:14-CV-04081-KES, 2014 WL 6386903 (D.S.D. Nov. 14, 2014) ............................ 18

Roudachevski v. All-Am. Care Ctrs, Inc.,

648 F.3d 701 (8th Cir. 2011) ............................................................................................. 23

Smith v. City of Salem, Ohio,

378 F.3d 566 (6th Cir. 2004) ............................................................................................. 17

SmithKline Beecham Corp. v. Abbott Labs.,

740 F.3d 471 (9th Cir. 2014) ............................................................................................. 20

State ex rel. Igoe v. Bradford,

611 S.W.2d 343 (Mo. App. W.D. 1980) ............................................................................ 15

State ex rel. Missouri Pac. Ry. Co. v. Williams,

120 S.W. 740 (Mo. 1909) ............................................................................................ 15, 16

State of Missouri v. Homesteaders Life Assn,

90 F.2d 543 (8th Cir. 1937) ............................................................................................... 15

Stroder v. Ky. Cabinet for Health & Family Servs.,

No. 09CV947H, 2010 WL 2464913 (W.D. Ky. June 14, 2010) ....................................... 21

United States v. Windsor,

133 S. Ct. 2675 (2013) ................................................................................................ passim

United States v. Windsor,

699 F.3d 169 (2d Cir. 2012)............................................................................................... 20


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Watkins Inc. v. Lewis,

346 F.3d 841 (8th Cir. 2003) ............................................................................................. 13

Weaver v. Nebo Sch. Dist.,

29 F. Supp. 2d 1279 (D. Utah 1998) .................................................................................. 21

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) ........................................................................................................... 19

Witt v. Dept of the Air Force,

527 F.3d 806 (9th Cir. 2008) ............................................................................................. 20

Young v. Hayes,

218 F.3d 850, 853 (8th Cir. 2000) ..................................................................................... 20

Ysursa v. Pocatello Educ. Assn,

555 U.S. 353 (2009) ........................................................................................................... 22

B. Statutes

Mo. Rev. Stat. 27.050 .......................................................................................................... 15, 16

Mo. Rev. Stat. 27.060 ................................................................................................................ 15

Mo. Rev. Stat. 451.022 ...................................................................................... 10, 11, 13, 14, 16

C. Missouri Constitution

Art. I, 33 ............................................................................................................. 10, 11, 13, 14, 16

D. U.S. Constitution

U.S. Const. amend. XIV ............................................................................................................... 17


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I. Introduction

As a result of a declaratory judgment and permanent injunction issued against the State of

Missouri by the Circuit Court of Jackson County inBarrier v. Vasterling, No. 1416-CV03892,

2014 WL 4966467 (Mo. Cir. Ct. Oct. 3, 2014), amended by, 2014 WL 5469888 (Mo. Cir. Ct.

Oct. 27, 2014), Missouri now provides full recognition to the legal marriages of same-sex

couples from other jurisdictions. But, despite the binding and conclusive decision inBarrier, the

Defendant, Ozark Fire Protection District, continues to enforce its own discriminatory employee-

benefit policy and refuses to recognize the legal marriages of same-sex couples for purposes of

providing spousal healthcare to its employees. Because the District pays 100% of the cost of

premiums, spousal health, vision, and dental care coverage is a particularly significant element of

compensation for District employees.

Plaintiff, Andi Mooneyham, is a fire captain in the District who legally married her wife

in 2013.1But, unlike every other legally married employee of the District, Captain Mooneyham

is barred from enrolling her spouse under the Districts healthcare plan because she and her

spouse are both members of the same sex. She challenges the Districts spousal healthcare policy

as employment discrimination based on sex and sexual orientation in violation of the Fourteenth

Amendment.

Mooneyham seeks a preliminary injunction because she is likely to prevail on her claim;

allowing the District to persist with its likely unconstitutional policy during the pendency of this

case creates a threat of irreparable harm to her; the harm to Plaintiff outweighs any injury that

granting an injunction would inflict upon the District; and a preliminary injunction is in the

public interest.

1 Mooneyham was married in California. Same-sex couples were permitted to marry in California at

the time of her marriage.


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II. Factual Background

Mooneyham is a captain in the Ozark Fire Protection District. Ex. 1 at 2 (Mooneyham

Declaration). She has been employed by the District since December 28, 2006.Id.at 2-4.

Recognizing that the Districts employees put their lives on the line to protect the

residents of the District, the District provides generous spousal benefits to its employees.Id.at

7. These include full health, dental, and vision insurance coverage for spouses of fulltime

employees at no expense to the employee.Id.

Mooneyham is a full-time employee of the District.Id.at 4. Like other fulltime

employees of the District, she is married.Id.at 5-6. She has been legally married to her

spouse since July 25, 2013.Id. at 6. The District does not provide her with the spousal benefits

it provides to each of its other fulltime employees for one reason: Mooneyham is a woman who

is married to a woman.Id.at 7. If either Mooneyham or her spouse were male, Mooneyham

would receive the same spousal benefits that all of her coworkers enjoy.Id.

It is the policy of the District not to provide any spousal benefits to married persons of

the same-sex. Mooneyham has repeatedly requested that this policy be changed.Id.at 7-9.

After the Districts insurance provider, Anthem, changed its policy to allow benefits to be

extended to same-sex spouses, the Districts governing board publicly considered changing its

own policy.Id.at 9; Ex. 2 at 3 (Rothert Declaration). One board member, who was

supportive of the change, reported receiving nasty, ugly anonymous messages. Ex. 2 at 4.

Those who opposed the change referred to Missouris definition of marriage, [Todd A.]

Johnsons legal opinion on the boards authority[,] or Biblical scripture.Id.at 5. At a

September 2014 meeting, the board tabled a motion to update its policy based on the advice of its

attorney.Id.at 3, 6. The District has justified its current policy that discriminates against

same-sex couples by relying upon Mo. Rev. Stat. 451.022 and Art. I, 33 of the Missouri


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Constitution, both of which purport to prohibit recognition of marriages entered into by persons

of the same sex. Ex. 2 at 7.

On October 3, 2014, the Circuit Court of Jackson County declared that Mo. Rev. Stat.

451.022 and Art. I, 33 of the Missouri Constitution violate the Fourteenth Amendment to the

United States Constitution insofar as they prohibit the recognition of marriages of same-sex

couples married in jurisdictions where marriages of same-sex couples are lawful. See Barrier v.

Vasterling, No. 1416-CV03892, 2014 WL 4966467 (Mo. Cir. Ct. Oct. 3, 2014), amended by,

2014 WL 5469888 (Mo. Cir. Ct. Oct. 27, 2014). TheBarrier court entered the following

declaratory judgment and injunction against, inter alios, Governor Jeremiah (Jay) Nixon and

Attorney General Chris Koster, in their official capacities as Governor and Attorney General of

the State of Missouri:

1. The Court finds and declares that sections 451.022 and 104.012 of the Revised

Statutes of Missouri, and Article I, section 33 of the Missouri Constitutionprohibit the recognition of marriages of same-sex couples married in jurisdictions

where same-sex marriage is lawful, and allow the recognition of the marriages of

similarly-situated opposite-sex couples, and thereby deny plaintiffs their right to

equal protection of the laws in violation of the Fourteenth Amendment to theUnited States Constitution.

2. Defendants, their agents, servants, employees, attorneys, and all persons actingin knowing concert or participation with them who receive actual notice of this

judgment by personal service or otherwise, are permanently enjoined and

restrained from enforcing these laws prohibition on the recognition in Missouriof plaintiffs marriages, as well as the marriages of any same-sex couples entered

into in any jurisdiction in which same-sex couples may lawfully marry.

3. Defendants, their agents, servants, employees, attorneys, and all persons actingin knowing concert or participation with them who receive actual notice of this

judgment by personal service or otherwise, are further permanently enjoined and

restrained from refusing in any way to recognize these plaintiffs' marriages, as

well.Barrier, 2014 WL 5469888, at *10. This declaratory judgment and injunction are binding and

conclusive on the State of Missouri and its officials.


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TheBarrier court did not stay its decision, and the Attorney General chose not to

appeal. As a result ofBarrier, state agencies and political subdivisions have amended their

policies to provide equal spousal benefits to their employees regardless of the sex or sexual

orientation of the employee or his or her spouse.

The District, however, has attempted, without any authority, to resurrect Mo. Rev. Stat.

451.022 and Art. I, 33 of the Missouri Constitution and continue enforcing those provisions

unconstitutional definition of spouse for purposes of administering benefits to the spouses of its

employees. In response to a letter from the American Civil Liberties Union of Missouri

regarding the binding effect of theBarrier decision, the Districts attorney asserted that the

District was not bound by theBarrier decision because the District was not a party toBarrier

and the decision was not issued by an appellate court. Ex. 2 at 14.

Although the Attorney General defended the lawsuit inBarrier and advanced a

nondiscriminatory justification for the laws, the Districts attorneysaid he seriously doubt[s]

this is the reason over 68% of Missouri voters approved the constitutional amendment.Id.at

8, 11. The Districts attorneyfurther asserted, incorrectly, that theBarrier court did not address

or consider the Supreme Courts holding in United States v. Windsor, 133 S. Ct. 2675 (2013).

Id.at 12. He also alleged that the District has been threatened with litigation by unnamed

residents if its funds are used to pay for spousal benefits for Mooneyham.Id.at 13. Finally,

despite acknowledging that the District is a political subdivision of Missouri, he contended that

the District is not bound by the judgment and injunction against Missouri.Id.at 14.

According to press reports, the Districts attorney further elaborated on his views and

expressed dissatisfaction with the Attorney Generals unsuccessful effortsto defend those laws.


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In a news story explaining the Districts decision to continue withholding spousal benefits from

Mooneyham, the Districts attorneyis quoted as saying:

The attorney general is just failing to make any effort to defend these cases and

hes offering such a lame rationale for these laws thats the reason they arefailing. . . . Hes essentially failing to perform the job that hes hired by thecitizens of Missouri to perform ... Its the attorney general of the states job to

defend those laws and to do so vigorously and properly, and hes failing to do so.

Id.at 9. The Districtsattorney also said he think[s] the Attorney General has an obligation

to appeal [theBarrier decision] and his failure to do so is inexcusable.Id.at 10.

In the meantime, the protracted and public nature of the dispute has inflicted additional

dignitary harms on Mooneyham beyond the financial effects of the Districts discriminatory

policy. Ex. 1 at 10.

III. Argument

A. Standard for a Preliminary Injunction

When considering a motion for preliminary injunction, this Court must determine

whether: (a) Plaintiff is likely to prevail on the merits; (b) there exists a threat of irreparable

harm to Plaintiff absent the injunction; (c) the harm to Plaintiff outweighs the injury that granting

the injunction would inflict upon Defendant; and (d) the preliminary injunction is in the public

interest. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc);

accord Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III Sch. Dist.,

853 F. Supp. 2d 888, 895 (W.D. Mo. 2012).

B. Plaintiff is likely to prevail on the merits.


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Because the District has adopted a discriminatory benefits policy that no longer has any

basis in existing Missouri law, the Districts policy does not receive the deference afforded to a

valid law enacted pursuant to reasoned democratic processes, and Plaintiff need show only a

fair chance of prevailing to satisfyDataphases first prong.See Planned Parenthood v.

Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). Thus, here, Plaintiff is not required to show

a greater than fifty percent likelihood that [s]he will prevail,PCTV Gold, Inc. v. SpeedNet,

LLC, 508 F.3d 1137, 1143 (8th Cir. 2007) (quotingDataphase Sys., Inc., 640 F.2d at 113); she

needs to show only that her claims provide fair ground for litigation. Watkins Inc. v. Lewis,

346 F.3d 841, 844 (8th Cir. 2003). Nevertheless, Mooneyham can meet the more rigorous

standard for likelihood of success on the merits required in cases that challenge duly enacted

statutes because, in similar cases in Missouri and across the country, plaintiffs have, in fact,

prevailed on the merits.

1. The District is not enforcing Missouris definition of spouse.

Missouri currently recognizes legal marriages performed in other jurisdictions regardless

of whether the marriage involves same-sex or different-sex couples. Until recently, the marriages

of same-sex couples were denied recognition in Missouri pursuant to the State definition of

marriage set forth in Mo. Rev. Stat. 451.022 and Art. I, 33 of the Missouri Constitution, but

since October 3, 2014, those provisions, as they relate to the recognition of out-of-state

marriages, have been declared facially unconstitutional and rendered null and void as result of a

declaratory judgment and permanent injunction issued against the State by the Circuit Court of

Jackson County inBarrier.

Because the State of Missouri was a party to theBarrier litigation, through the Governor

and the Attorney General in their official capacities, theBarrier decision is binding and


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conclusive on the State of Missouri and all its officials. When a cause of action is stated against

a state official in his official capacity, the action is one against the state.Edwards v. McNeill,

894 S.W.2d 678, 682 (Mo. App. W.D. 1995);see also Hafer v. Melo, 502 U.S. 21, 25

(1991) (noting that[s]uits against state officials in their official capacity therefore should be

treated as suits against the State). This is because [p]ersonal-capacity suits seek to impose

personal liability upon a government official for actions he takes under color of state law[, where

o]fficial-capacity suits, in contrast, generally represent only another way of pleading an action

against an entity of which an officer is an agent.Kentucky v. Graham, 473 U.S. 159, 165

(1985) (quotingMonell v. N.Y.C.Dept of Social Servs., 436 U.S. 658, 690, n.55 (1978)).

The District suggests that it cannot provide spousal healthcare benefits to employees with

same-sex spouses because the word spouse,as defined by Mo. Rev. Stat. 451.022 and Art. I,

33 of the Missouri Constitution, excludes persons of the same sex from the definition of

spouse. Those provisions, however, are now null and void. [A]n unconstitutional state

enactment is void and . . . any action by a state official that is purportedly authorized by that

enactment cannot be taken in an official capacity since the state authorization for such action is a

nullity.Papasan v. Allain, 478 U.S. 265, 276 (1986);see alsoNorton v. Shelby Cnty., 118 U.S.

425, 442 (1886) (An unconstitutional act is not a law; it confers no rights; it imposes no duties;

it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though

it had never been passed.).

Because political subdivisions have no authority to litigate on behalf of the State, the

Districts attorneys criticismsof the Attorney Generals litigation decisions inBarrier are

irrelevant. While the Districts attorney opines that the Attorney General should have raised

different arguments in defense of the challenged law and appealed theBarrier decision, the


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District and its attorney have no power or authority to second-guess the litigation decisions made

by the Attorney General on behalf of the State of Missouri. In legal actions on behalf of the

state, only the Attorney General may represent the state with sovereign power.Neel v. Strong,

114 S.W.3d 272, 275 (Mo. App. E.D. 2003).

Sections 27.050 and 27.060, RSMo 1978 confer authority on the attorney general

as to litigation involving the state. By these statutes, the attorney general managesall appeals in cases where the state is a party and the attorney general is charged

with the duty to enforce the rights of the state. It is for the attorney general to

decide where and how to litigate issues involving public rights and duties and to

prevent injury to the public welfare.

State ex rel. Igoe v. Bradford, 611 S.W.2d 343 (Mo. App. W.D. 1980); accord State of Missouri

v. Homesteaders Life Assn, 90 F.2d 543, 548 (8th Cir. 1937).

Accordingly, political subdivisions, like the District, have no authority to enforce state

laws that have been invalidated in litigation in which the Attorney General represented the

States interests by claiming that they were not a party to the judgment. The Missouri Supreme

Court made this principle clear more than 100 years ago in State ex rel. Missouri Pac. Ry. Co. v.

Williams, 120 S.W. 740 (Mo. 1909). The Williams case was filed in state court after the U.S.

District Court for the Western District of Missouri, in litigation between various railroad

companies and the Attorney General in his official capacity, struck down Missouri statutes that

prohibited railroad companies from charging more than two cents per mile as a violation of the

railroads due process rights under the Fourteenth Amendment.Id.at 745. After the federal court

issued its decision declaring the statutes to be unconstitutional, the circuit attorney for St. Louis

tried to enforce the same statutes against the Missouri Pacific Railway Company by seeking an

injunction prohibiting the company from charging three cents per mile.Id.at 746. The St. Louis

circuit attorney argued that he was not bound by the federal decree because St. Louis was not a

party to the federal litigation and, as a result, the parties to the said suits are not the same.Id.


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But the Missouri Supreme Court rejected that argument and explained that because Missouri was

a party to the earlier litigation through the participation of the Attorney General, the circuit

attorney of the city of St. Louis could not open up and have relitigated the questions involved in

that record and determined in the decree of the federal court.Id.at 748. The court further

explained that the Attorney General, not the St. Louis circuit attorney, is responsible for

litigating legal issues in the name of the State of Missouri because [t]he duties of the Attorney

General are defined by statute, and . . . demonstrate that the lawmaking power charged the

Attorney General with the duty of conducting all litigation on behalf of the state, as distinguished

from a county or some municipality.Id.at 749.

The same principle applies here. The court inBarrier, a case where the Attorney General

was a party representing the sovereign interest of Missouri, held that Mo. Rev. Stat. 451.022

and Art. I, 33 of the Missouri Constitution are unconstitutional insofar as they deny legal

recognition to the marriages of same-sex couples. By statute, the Attorney General is vested with

the power to determine whether to appeal that ruling. Mo. Rev. Stat. 27.050 (providing that the

Attorney General shall have the management of and represent the state in all appeals towhich

the state is a party).The District, which is not vested with any authority whatsoever to litigate in

the name of the State, may not continue to enforce the same statutes that have been declared

facially unconstitutional simply because the Districts attorney disapproves of and disagrees with

the outcome of the binding court decision.

If the District intends to administer its spousal health benefits policies by excluding

same-sex couples from its definition of spouse, that policy has to rise and fall on its own

merits. The District cannot hide behind State statutes and constitutional provisions that have been

rendered null and void to claim it mustdiscriminate against Mooneyham.


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2. The Districts spousal-benefit policy discriminates against Mooneyham based

on sex.2

The Equal Protection Clause protects public employees from discrimination based on

their sex, which includes discrimination based on their gender nonconformity or failure to

conform to sex stereotypes.Davis v. Passman, 442 U.S. 228, 235 (1979); Glen v. Brumby, 663

F.3d 1312, 1316 (11th Cir. 2011); Smith v. City of Salem, Ohio, 378 F.3d 566, 576-77 (6th Cir.

2004);Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 11721 (2d Cir.

2004). Discrimination against public employees based on sex is unconstitutional unless the

employer can meet the demanding standard of heightened scrutiny by showing that the

gender classification is substantially related to a sufficiently important governmental interest.

Glen, 663 F.3d at 1316 (internal quotation marks omitted and alterations incorporated).

The simple test for determining whether an employment practice discriminates based

on sex is whether the evidence shows treatment of a person in a manner which but for that

persons sex would be different.L.A.Dept of Water & Power v. Manhart, 435 U.S. 702, 711

(1978) (internal quotation marks omitted). The Districts spousal-benefits policy fails that test. If

Mooneyham were a man named Andrew instead of a woman named Andi, Mooneyham would

receive spousal benefits for her wife. Similarly, if Mooneyhams spouse were male, Mooneyham

would receive spousal benefits for her husband. Because the District would provide spousal

benefits to Mooneyham if she or her spouse were male, it has discriminated against Mooneyham

based on sex.See, e.g.,Hall v. BNSF Ry. Co., No. C132160 RSM, 2014 WL 4719007, at *3

(W.D. Wash. Sept. 22, 2014) (finding that plaintiff stated Title VII sex discrimination by

2 Because the test for determining sex discrimination in employment under the Equal Protection

Clause mirrors the test for determining sex discrimination under Title VII of the Civil Rights Act, this section relies

on precedent from both Equal Protection and Title VII cases. See Floyd-Gimon v. Univ. of Ark. for Med. Scis. ex rel.

Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1148 (8th Cir. 2013).


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alleging that employer provided spousal benefits to female employees who are married to males

but denied it to [male plaintiff] who is married to a male);In re Levenson, 560 F.3d 1145 (9th

Cir. Jud. Council 2009) (holding that denial of spousal benefits to same-sex spouses is sex

discrimination because employee was unable to make his spouse a beneficiary of his federal

benefits due solely to his spouses sex); cf. Latta v. Otter, Nos. 14-35420, 14-35421, 12-17668,

2014 WL 4977682, at *15-18 (9th Cir. Oct. 7, 2014) (Berzon, J., concurring) (applying same

reasoning to conclude that laws prohibiting same-sex couples from marrying discriminate based

on sex);Jernigan v. Crane, No. 4:13-cv-00410 KGB, 2014 WL 6685391, at *23-24 (E.D. Ark.

Nov. 25, 2014) (same);Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2014 WL 6386903,

at *7-8 (D.S.D. Nov. 14, 2014) (same);Lawson v. Kelly, No. 14-0622-CV-W-ODS, 2014 WL

5810215, at *8 (W.D. Mo. Nov. 7, 2014)(same);Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206

(D. Utah 2013) (same), affd, 755 F.3d 1193 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014).

In concluding that the District discriminates against Mooneyham because of her sex, it

makes no difference that the District discriminates equally against female employees who marry

women and male employees who marry men. InManhart, the Supreme Court squarely rejected

the employers argument that the absence of a discriminatory effect on women as a class

justifies an employment practice which, on its face, discriminated against individual employees

because of their sex.Manhart, 435 U.S. at 716. Instead,Manhartinstructed courts to focus on

fairness to individuals rather than fairness to classes.Id.at 709.

At the individual level, the sex discrimination inflicted on Mooneyham is stark. As a

result of the Districts policy, Mooneyham has failed to receive for her family the same

protection which a similarly situated male worker would have received. Weinberger v.

Wiesenfeld, 420 U.S. 636, 645 (1975). The Districts policy thus provides [Mooneyhams]


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heightened scrutiny, it is well settled that distinguishing between homosexual and heterosexual

employees [who are] similarly situated . . . cannot survive rational basis review.Diaz v. Brewer,

656 F.3d 1008 (9th Cir. 2011);see also Dawkins v. Richmond Cnty. Sch., No. 1:12CV414, 2012

WL 1580455 (M.D.N.C. May 4, 2012);Lathrop v. City of St. Cloud, Minn., Civ. No. 10-

2361(DWF/LIB), 2012 WL 185780 (D. Minn. Jan. 23, 2012);Hutchinson v. Cuyahoga Cnty. Bd.

of Cnty. Comrs, No.1:08-CV-2966, 2011 WL 4452394 (N.D. Ohio Sept. 26, 2011); Stroder v.

Ky. Cabinet for Health & Family Servs., No. 09CV947H, 2010 WL 2464913 (W.D. Ky. June 14,

2010);Beall v. London City Sch. Dist. Bd. of Educ., No. 2:04-cv-290, 2006 WL 1582447 (S.D.

Ohio June 8, 2006); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279, 1289 (D. Utah 1998);

Glover v. Williamsburg Local Sch. Dist. Bd. of Educ. , 20 F. Supp. 2d 1160, 1174 (S.D. Ohio

1998).

4. The Districts discrimination against Mooneyham based on her sex and

sexual orientation has no connection to any legitimate interest.

review. But after Windsor, the Ninth Circuit concluded that Windsorrequires that we reexamine our prior

precedents and we are required by Windsorto apply heightened scrutiny to classifications based on sexual

orientation for purposes of equal protection. SmithKline, 740 F.3d at 484. Just as Windsor abrogated Wittin the

Ninth Circuit, it also abrogatesBruning in the Eighth Circuit. Eighth Circuit decisions are not binding when anintervening expression of the Supreme Court is inconsistent with those previous opinions. Young v. Hayes, 218

F.3d 850, 853 (8th Cir. 2000);McCullough v. AEGON USA Inc., 585 F.3d 1082, 1085 (8th Cir. 2009) (same).

Similarly, district courts within the Eighth Circuit must follow intervening Supreme Court decisions if they conflict

with a prior ruling of the Eighth Circuit. See Cornerstone Consultants, Inc. v. Prod. Input Solutions, L.L.C. , 789 F.

Supp. 2d 1029, 1039 (N.D. Iowa 2011) ([B]oth the district court and the Circuit Court of Appeals are obligated to

follow Supreme Court decisions. Thus, I must follow the Supreme Courts formulation of the pleading standard,

contrary language in [an Eighth Circuit precedent] notwithstanding. (citation omitted)). Thus, this Court should

follow WindsornotBruningand subject sexual orientation classifications to the heightened scrutiny Windsor

requires.


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The only justification the District has provided for discriminating against Mooneyham

based on sex and sexual orientation is that it is enforcing Missouris statutory and constitutional

restrictions that purportedly apply to the recognition of the marriages of same-sex couples. As

discussed, however, those restrictions have been conclusively declared unconstitutional and

rendered null and void.

Just as the District has no legitimate interest in enforcing laws that have already been

enjoined as facially unconstitutional, it also has no interest as a political subdivision in crafting

its own, more restrictive, definition of spouse for the purpose of providing employee

healthcare benefits. Based on his previous statements, it appears that the Districts attorney

believes that the Attorney General did not provide a sufficiently robust defense of Missouris

marriage recognition bans based on principles of federalism discussed in Windsor.But the

District cannot invoke principles of federalism in defense of its own discrimination against same-

sex couples. Unlike sovereign states whose responsibilities for the definition and regulation of

marriages dates to the Nations beginning[,] Windsor, 133 S. Ct. at 2691, political subdivisions

have no similar authority to define and regulate and define the marital status of their employees

or residents. Political subdivisions of Statescounties, cities, or whatevernever were and

never have been considered as sovereign entities.Reynolds v. Sims, 377 U.S. 533, 575 (1964);

Ysursa v. Pocatello Educ. Assn, 555 U.S. 353, 362 (2009). Indeed, at the same time that

Windsoracknowledged States traditional role in defining and regulating marriage, subject to

constitutional restraints, Windsoralso emphasized the long-established precept that the

incidents, benefits, and obligations of marriage are uniform for all married couples within each

State.Windsor, 133 S. Ct. at 2691. By defining spouse for purposes of its employees benefits


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group.Heckler v. Mathews, 465 U.S. 728, 739-740 (1984); accord Windsor, 133 S. Ct. at 2694

(The differentiation demeans the couple, whose moral and sexual choices the Constitution

protects.);see also Ex. 1 at 10.

Finally, the mere threat of the termination of healthcare benefits to striking workers has

been held to be an irreparable harm.Commc'ns Workers of Am., Dist. One, AFL-CIO v. NYNEX

Corp., 898 F.2d 887, 891 (2d Cir. 1990). Here Plaintiff is being denied spousal healthcare

benefits as a result of the Districts policy.

Any minimal injury to the District from being preliminarily enjoined from refusing to

extend spousal benefits to Mooneyham and cannot outweigh the substantial harm caused by

refusing her equal benefits. The District already provides the exact spousal benefits Mooneyham

seeks to each of its other fulltime employees. The balance of equities generally favors the

protection of constitutional rights.Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008)

overruled by on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th

Cir. 2012).

Finally, [i]t is always in the public interest to protect constitutional rights.Id. at 689.

The public interest supports the Constitution, and thus it also supports an injunction that is

necessary to prevent a governmental entity from violating [it].Doe v. S. Iron R-1 Sch. Dist.,

453 F. Supp. 2d 1093, 1103 (E.D. Mo. 2006), aff'd, 498 F.3d 878 (8th Cir. 2007).

IV. Conclusion

For the forgoing reasons, this Court should enter a preliminary injunction against the

District and require it to offer Mooneyham the same benefits that it offers to employees with

different-sex spouses.


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Respectfully submitted,

/s/ Anthony E. RothertAnthony E. Rothert, #44827

Grant R. Doty, #60788

Andrew McNulty, #67138ACLU of Missouri Foundation454 Whittier Street

St. Louis, Missouri 63108

Phone: 314-652-3114Fax: 314-652-3112

[email protected]

[email protected]

[email protected]

Gillian R. Wilcox, #61278

ACLU of Missouri Foundation3601 Main Street

Kansas City, Missouri 64111

[email protected]

Joshua Block, pro hac vice forthcoming

LGBT & AIDS Project

ACLU Foundation125 Broad Street, 18th Floor

New York, New York 10004

ATTORNEYS FOR PLAINTIFF


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Certificate of Service

I certify that, on December 2, 2014, a copy of the forgoing was mailed via USPS first

class mail to Ozark Fire Protection District, 604 North 3rd Street, Ozark, Missouri 65721. In

addition, on December 2, 2014, a courtesy copy was faxed to Todd A. Johnson, (417) 866-1064.

/s/ Anthony E. Rothert


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SOUTHERN DIVISION


Plaintiff,v.



Defendant.

)

)))

)

))

)

No. 6:14-cv-3496-MDH

DECLARATION OF ANDREA (ANDI) MOONEYHAM

I, Andrea (Andi) Mooneyham, declare as follows:1. I am over the age of 18. I have personal knowledge of the facts set forth in this

declaration and could and would testify competently to those facts if called as a witness.

2. I am a fire captain with the Ozark Fire Protection District.

3. I have been employed by the District since December 28, 2006. I started with the

District as a firefighter, and I worked in that position for eight years; I was later promoted to

captain.

4. I am a fulltime employee of the District.

5. I am a woman and I am married to a woman.

6. I legally married my wife, Tara Muck, in California on July 25, 2013.

7. The District provides benefits, including health, dental, and vision insurance

coverage for spouses of fulltime employees. However, because I am a woman who is married to

a woman, I am not provided these same benefits. The District refuses to provide any spousal

benefits to employees who are married to persons of the same sex.

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8. I have repeatedly requested that the District change its policy so that employees

married to someone of the same sex can receive the same benefits that married different-sex

employees receive. The District has refused to change its policy.

9. The Districts insurance provider, Anthem, changed its policy and now extends

benefits to same-sex spouses of District employees. After this change by the provider, the

Districts governing board publicly considered changing its own policy.The District has not yet

changed its policy and therefore continues to refuse to extend the same benefits to all employees.

10. The process of trying to have my marriage recognized by the District and receive

the same benefits as different-sex married couples has been an incredibly stressful process. It has

taken a toll on me and my wife to publicly expose ourselves and the details of our life in order to

seek equal treatment only to have our requests publicly rebuffed. Because my wife and I are both

women, despite being legally married, we are stigmatized and suffer discrimination.

11. I have reviewed the Complaint in this case and all of the allegations are true and

accurate.

12.

I declare under penalty of perjury that the foregoing is true and correct.

Dated this 1st day of December, 2014.

/s/ Andrea Mooneyham

Andrea Mooneyham

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SOUTHERN DIVISION


Plaintiff,v.



Defendant.

)

)))

)

))

)

No. 6:14-cv-3496-MDH

DECLARATION OF ANTHONY E. ROTHERT

I, Anthony E. Rothert, declare as follows:

1.

I am over the age of 18. I have personal knowledge of the facts set forth in this

declaration.

2. As a result of the decision inBarrier v. Vasterling, No. 1416-CV03892, 2014 WL

4966467 (Mo. Cir. Ct. Oct. 3, 2014), amended by, 2014 WL 5469888 (Mo. Cir. Ct. Oct. 27,

2014), state agencies and political subdivisions amended their existing policies and now provide

equal spousal benefits to all married employees, regardless of the sex or sexual orientation of the

employee or his or her spouse.

3. In September, the District considered whether to change its policy and offer the

same benefits to all married couples, regardless of their sex our sexual orientation. Ex. A

(Stephen Herzog, Ozark Fire Board Wont Extend Same-sex Benefits, Springfield News-Leader,

Sept. 3, 2014).

4.

One District board member, who supported a change in the Districts policyto

extend benefits to same-sex spouses, reported receiving nasty, ugly anonymous messages

related to the consideration of extending benefits to employees married to persons of the same

sex.Id.

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5. Those who opposed the change in policy referred to Missouris definition of

marriage, [Todd A.] Johnsons legal opinion on the boards authority or Biblical scripture.Id.

6. Pursuant to the advice of its attorney, Todd A. Johnson, the Districts governing

board tabled the motion and made no changes to the current policy that refuses equal benefits to

employees who are married to a spouse of the same sex.Id.

7. The District has justified its discriminatory policy of refusing to extend benefits to

the same-sex spouses of employees by relying on Missouri law. Specifically, the District relies

on section 451.022 of the Missouri Revised Statutes and Article I, Section 33, of the Missouri

Constitution. Ex. B (Letter from Todd A. Johnson, Ellis, Ellis, Hammons & Johnson, P.C., to

Anthony E. Rothert, American Civil Liberties Union of Missouri, (Oct. 15, 2014)).

8. The Missouri Attorney General defended the lawsuit filed against it inBarrier

and advanced a nondiscriminatory justification for the challenged laws. The Attorney General

decided not to appeal theBarrierdecision and has, instead, chosen to comply with the courts

ruling.

9.

As a justification for the continued unequal treatment of employees, despite the

Barrier decision, the Districts attorney has said: The attorney general is just failing to make

any effort to defend these cases and hes offering such a lame rationale for these laws thats

the reason they are failing. . . . Hes essentially failing to perform the job that hes hired by the

citizens of Missouri to perform ... Its the attorney general of the states job to defend those laws

and to do so vigorously and properly, and hes failing to do so. Ex. C (Amelia Wigton,ACLU

Files Suit Against Ozark Fire District for Denying Spousal Benefits, Christian County Headliner

News, Nov. 24, 2014).


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10. The Districts attorney has also said that he think[s] the Attorney General has

an obligation to appeal [theBarrier decision] and his failure to do so is inexcusable.Ex. D

(Donna Osborn, Same-sex Benefits More Likely in Missouri, Christian County Headliner News,

Oct. 14, 2014).

11. And, despite the Attorney General defending the lawsuit inBarrier, and

advancing a nondiscriminatory justification for the unequal treatment, the Districts attorney has

said that he seriously doubt[s] this is the reason over 68% of Missouri voters approved the

constitutional amendment.Ex. B.

12.

The Districts attorney also does mistakenly believes that theBarrierdecision

did not address or consider the Supreme Courts holding in United States v. Windsor, 133 S.

Ct. 2675 (2013).Id.

13. The Districts attorney also informed me that the District has repeatedly been

informed that it will be sued by residents and taxpayers of the District if it expends any funds to

providebenefits to a same sex spouse.Id.

14.

The Districts attorney acknowledges that the District is a political subdivision of

the State of Missouri; despite this, however, he asserts that the District is not bound by the

Barrierdecision[.]Id.

15. I declare under penalty of perjury that the foregoing is true and correct.

Dated this 1st day of December, 2014.

/s/ Anthony E. Rothert

Anthony E. Rothert


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C


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EXHIBIT

D


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