IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY JANICE BARRIER, et al., Plaintiffs, v. Case No. Division 6 GAIL VASTERLING, in her of?cial capacity as Director of the Missouri Department of Health and Senior Services, et al., Defendants. ORDER AND JUDGMENT This case presents an issue of first impression in Missouri: Under the Constitutions of the United States and State of Missouri, most defendants recognize ont- of~state marriages between same-sex couples that are legal in the jurisdiction in. which they were contracted just as it recognizes all other similarly valid out~of~state marriages? The answer is yes. To the extent sections 451.022 and 104.012 of the Revised Statutes of Missouri and Article 1, section 33 of the Missouri Constitution purport to compel a different conclusion, they are invalid. INTRODUCTION Plaintiffs are gay and lesbian couples who live in Missouri, and who were married in jurisdictions in which same-sex marriages are legal. Pursuant to the above statutory and constitutional provisions, however, their marriages are not recognized in Missouri. Defendant. Gail Vasterling is the Director of the Missouri Department of Health and Senior Services. Defendant Chris Koster is the Attorney General of the State of Missouri, and Defendant Jeremiah W. (Jay) Nixon is its Governor. Defendant City of Kansas City, Missouri (referred to as ?the City?) is a municipal corporation and political a - 23-" ?35-'53 C: cum mt; "t we. ?5322s (0 I: (2: Kim i. .32" mm subdivision of the State of Missouri. All of these defendants are responsible for faithfully executing, implementing, and enforcing the law and, in the case of defendant Vasterling, administering her department?s programs and services in compliance with the law. It is undisputed by these defendants (collectively referred to as ?the State defendants?) that they do not recognize the validity of plaintiffs? out-of-state marriages. The City is similarly required to follow the law and has enacted ordinances and policies that extend protections and benefits based upon marital status. Relying on the above statutory and constitutional provisions, however, the City likewise does not recognize the marriages of same?sex couples like plaintiffs. On February ll, 2014, eight of the current plaintiffs ?led this action pursuant to 42 U.S.C. 1.983, seeking the following relief: I. A declaratoryjudgnient finding that the above provisions violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; 2. A declaratory judgment finding that the above provisions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; A permanent injunction directing defendants to recognize marriages validly entered into outside the state of Missouri by plainti?s and other samewsex couples; and. 4. An award of costs and attorneys? fees under 42 U.S.C. 1988(b). Ex.) On. May 21, 2014, an amended petition was filed adding plaintiffs John Parks, Joseph Lopez, Randall W. Short, and Eric J. Goodman?Short, and adding allegations regarding these plaintiffs? claims against the City of Kansas City. On April. 23, 2014, plaintiffs filed a. motion for summary judgment on. their claims against defendants pursuant to Rule 74.04 of the Missouri Rules of Civil Procedure. On May 30, 201.4, newly?joined plaintiffs Parks, Lopez, Short, and Goodman-?Shoth filed a separate motion for summary judgment addressing their claims against the City. All defendants filed responses to plaintiffs? motions. In addition, on. August 5, 2014, the State defendants filed a motion seeking judgment in their favor on the pleadings arguing that, taking as true the facts set forth in plaintiffs? amended petition, the ultimate question. presented in. this case is solely one of law, and is appropriately decided by the Court. Eaton v. Mallinckrodl, Inc, 224 596, 599?600 (Mo. banc 2007). All of the pending motions have been well and fully briefed,I and on September 25, 2014, the Court heard oral argument on them. Thereafter, the Court took the matter under advisement. For the reasons that follow, the Court determines that sections 451.022 and - 104.012 of the Revised Statutes of Missouri and Article 1, Section 33 of the Missouri Constitution violate plaintiffs" rights to equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution in that they discriminate against plaintiffs on the basis of their sexual orientation, and are not rationally related to a legitimate govermnental interest. 1 On September 24, 2014, the Court granted PROMO leave to ?le a memorandum in support of plaintiffs? motions as amicus curiae. ANALYSIS First, all parties agree the case may be decided on the basis of the motions pending before it. Plaintiffs have filed two motions for summary judgment. Defendants largely do not dispute that the only remaining issues are issues of law for the Court to decide. Rule 74.04. in addition, the State defendants have, as part of their opposition to plaintiffs? motions for summary judgment, filed a motion forjudgment on the pleadings. As the State defendants correctly argue, judgment on the pleadings is appropriate ?where the question before the Court is strictly one oflaw.? Eaton, 224 at 599. In considering such a motion, the Court must accept as true the well-pleaded facts of the petition, and give the non?moving party the benefit of all reasonable inferences to be drawn from the petition; Twehous Excavating Co, Inc. 12. LL. Lewis Investmenls, LLC, 295 542, 546 (Mo. App. WQD. 2009). Thus, the facts regarding plaintiffs, their relationships, and their marriages are either undisputed or taken as true for purpose of this judgment, as are the facts regarding the enactment of the statutory and constitutional provisions at issue in this case. In 1996, Chapter 451 of the Revised Statutes of Missouri was revised to prohibit same?sex couples from marrying. The revision enacted. at that time as section 451.022 u? stated: It is the public policy of this state to recognize marriage only between a man and a woman. 2. Any purported marriage not between a man and a woman is invalid. 3. No recorder shall issue a marriage license, except to a man and a woman.? In 2001, the statute was further amended to add the following language: A marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted.? This 2001 amendment marked an unprecedented departure from the well? established rule in Missouri and other states that ?a marriage, valid where contracted, is valid everywhere.? Green v. McDoweU, 242 S.W. 168, 171 (Mo. App. 1922). Also in 2001, the General Assembly enacted section 104.012 as part of Missouri laws governing, the operation. of state retirement systems. That statute provides, ?For the purposes of public retirement systems administered pursuant to this chapter, any reference to the term ?spouse? only recognizes marriage between a man and a woman.? Finally, in the 2004 primary election, Missouri. voters approved Constitutional Amendment 2, placed on the ballot pursuant to Senate Joint Resolution 29. As a result, the Missouri Constitution now provides in Article 1, section 33 that, be valid and recognized in this state, a marriage shall exist only between a man and a woman.? Plaintiffs have sued these defendants for declaratory and injunctive relief pursuant to 42 U.S.C. 1983. They also seek an order of attorney?s fees pursuant to section 1988(b). No defendant disputes that section 1983 is the appropriate vehicle for bringing these claims, nor does any defendant dispute that each of them is subject to section. 1983?s provisions. The question as framed by the parties is, therefore, whether the statutory and constitutional provisions at issue in this action violate plaintiffs? constitutional rights. Statutes are presumed constitutional and. are construed in favor of their ?constitutional validity.? Glossip v. M0. Dept. Qf'Tramp. Hwy. Pam)! Employees" Rel; Sys, 411 796, 802 (Mo. banc 2013) (citing Beard v. M0. State Employees Ref. 8325., 379 167 (Mo. banc 2012)). Moreover, it is the. burden of the party challenging a statute?s validity to prove that the statute ?clearly and undoubtedly? violates the constitution. Id. at 301. The same principles apply to the evaluation of a constitutional amendment like Article 1, section 33. The power of Missouri citizens to amend their Constitution emanates from, and is constrained by, the provisions of Article .1, section 3, which provides: That the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof, and to alter and abolish. their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided such change he not repugnant to the Constitution @7226 United States. MO CONST. art. 1, sec. 3 (emphasis supplied). The Court?s evaluation of plaintiffs? equal protection claims thus begins with the . Fourteenth Amendment to the United States Constitution, which provides: ?No state shall . . . deny to any person. within its jurisdiction the equal protection of the laws.? U.S. Const. amend XIV. Similarly, Missouri?s Constitution provides in Article 1, section 2 that ?[A]ll persons are created equal and are entitled to equal rights and opportunity under the law.? The Missouri Constitution?s equal protection clause is ?coextensive? with the Fourteenth Amendment. Glossip, 4'1 1 at 805 (citing State v. Yormg, 362 386 (Mo. banc 2012)). Initially, the Court evaluates whether plaintiffs have standing to make such a claim against these defendants. Standing requires that a party have ?some legally protectable interest in the litigation so as to be directly and adversely affected by its outcome." Glossip, 411 at 803 (quoting Schweich v. Nixon, 408 769 (Mo. banc 2013)). The Glossip court observed that, generally, ?[S]tanding requires the plaintiff to prove that he has a personal stake or legally protectable interest; that this interest is at risk from a threatened or actual injury; and that this interest will be directly and materially affected by the outcome of the litigation.? Id. Further, in the context of an equal protection challenge, Giossip instructs that plaintiffs must: (1) identify a classification that distinguishes between similarly?situated persons in the exercise of a right or the receipt of a bene?t; (2) Show that they are a member of the disadvantaged. class; and (3) Show that, but for the challenged classi?cation, they would be eligible for the right or benefit. Id. at 803 (citations omitted). There is no apparent disagreement by the State defendants with the proposition that plaintiffs have met their burden to show their standing to sue the State defendants in order to challenge the statutory and constitutional provisions at issue here. The State defendants? refusal to recognize the out~of~state marriages of plaintiffs in reliance on those provisions clearly distinguishes same-sex couples from siinilarly~sitnated persons in the exercise of their right to be recognized as lawfully married, and to be eligible for the various - and undisputed. - bene?ts that ?ow from being so recognized. See plaintiffs? Motion for Summary Judgment, pp. 8- 1 3. In addition, and possibly more fundamental, is this fact: Plaintiffs are, without dispute, loving and committed couples who presented themselves at a recorder?s of?ce, or its equivalent, in. a jurisdiction in which it is legal for same-sex partners to marry. They are, therefore, legally married both in the jurisdictions in which their marriages were contracted, and in other jurisdictions which recognize out~of-state marriages pursuant to the doctrine of [ex loci contractus. Missouri follows the same doctrine and recognizes marriages deemed lawful in other states for everyone except same?sex couples. For example, ?rst cousins are not. allowed to marry in Missouri. 451.020, No party contests that in many other states, they may. Similarly, common law marriages are ?null and void? in Missouri. 451.0404, RSMO. in many other states, they are valid without any restriction. Missouri restricts the ability of people under the age of 18 to marry without depending on the parties? ages parental or custodial consent. or court order. 451.090, There are other states that have less restrictive provisions in this regard than Missouri. Thus, Missouri2 has made the choice to regulate and in some cases, prohibit outright, the ability of certain couples to get married here. However, in accordance with the deeply?rooted concept of [ex loci continents, Missouri has historically recognized the validity of such marriages if they were lawful in the state in which they were contracted. By singling out plaintiffs? marriages for different treatment, the State defendants are singling out plaintiffs themselves and are doing so because ofa characteristic that distinguishes them from other people: their sexual orientation. Simply put, if plaintiffs were treated the same as their opposite?sex counterparts with legal out-of?state marriages, their marriages would be recognized in Missouri. They are not. This inability to live 7 The Court recognizes that its use of the word ?Missouri? in this context is necessarily synonymous with not only the phrases ?members of the Missouri General Assembly? and ?Missouri Governor,? but also with the phrase ?Missouri voters.? The signi?cance of this is not lost on the Court, nor should it be, as the State defendants are correct when they point out that Article 1, section I of the Missouri Constitution con?rms that ?all political power is vested in. and derived from the people;? and that ?all government of right originates from the people,? and is ?founded upon their will only." Section 1 also makes clear, however, that this power is to be ?instituted solely for the good ofthe whole.? (Emphasis sappiied). Moreover, this Court is obligated to read these provisions not in isolation, but in harmony with the other provisions of the Constitution including Article section 2?s assurance that ?all persons are created equal and are entitled to equal rights and opportunity under the law.? In any event, as the United States Supreme Court has repeatedly confirmed, the electorate cannot by ?referendum or otherwise? order action in violation of constitutional rights. Cit}? ofoebza'ne, Tex. v. Clebnme Living Can, 473 118.432, 448, 105 3249, 87 L.Ed.2d 313 (1935); W. V. Stare Bd. Qf'Edac. v. Eamon/e, 3 l9 US. 624, 638, 63 l78, 87 I628 U943) rights may not be submitted to vote; they depend on the outcome of no election?). here and be recognized as ?married? is not only a benefit from an economic standpoint, but is also a right denied them for no reason other than the fact. that they are gay men and. lesbians. Plaintiffs have standing to assert that they are being unlawfully discriminated. against by the State defendants. 1T hese same principles con?rm plaintiffs have standing to assert their 1983 claims against the City, as well. Only plaintiffs Parks, Lopez, Short, and Goodman?Short advance such claims in their motion for summary judgment. Reply to Defendant City of Kansas City?s Opposition to Plaintiffs? First and Second Motions for Summary Judgment, p, 1, n. 2. Evaluating the issue of standing as outlined in Glossip, the Court determines that the four plaintiffs listed above also have standing to assert their claims for declaratory and injunctive relief against the City under 42 U.S.C. 1983. The City is clearly a state actor for purposes of section 1983. Wickersham v. City ofColumbia, 481 .3d 591, 598 n. 4 (8thl Cir. 2007). Further, these plaintiffs allege that the City is Violating their constitutional rights under color of law. Mott! v. Mo. Lawyer Trust Acct. Found, 133 142, l46 n. 3 (M0. App. WD. 2004). These plaintiffs have demonstrated that a controversy exists between them and the City. They have a legally proteetable interest at stake in this litigation, a substantial controversy exists between them and the City, and the controversy is ripe for determination. See Mo. Alliancefbr Retired Americans v. Dept. ofLabor India: Relations, 277 670, 676 (Mo. banc 2009). The City alleges that it takes care within the con?nes of the statutory and constitutional. provisions by which it claims it is bound to ensure that its citizens and employees are not discriminated against because of their ?marital status? and that it extends bene?ts to ?domestic partners.? Nevertheless, it is undisputed that the City does not recognize plaintiffs? marriages. .lt admits that it does not provide any retirement or survivor bene?ts to employees who are married to someone of the same sex, and that it does provide such bene?ts to similarly-situated employees in. opposite-sex marriages. Further, and although the City recently con?rmed that it has changed its policies to prevent a ?domestic partner?s? health insurance from being considered imputed income to its employees, the fact remains that in order to be a ?domestic partner? and receive even these limited benefits, those preparing and submitting a Domestic Partnership Af?davit must affirm, under oath, that they ?[a]re not legally married.? Since these plaintiffs believe they are legally married, they cannot do this. Lastly, these plaintiffs? claims are ripe because their legally protectable interests ?contemplate a pecuniary or perSOnal interest directly in issue or jeopardy which is subject to some consequential relief, immediate or prospective.? Piriilips v. Mo. Dept. art/Soc. Serves. Child Support Div, 723 2, 4 (Mo. banc 1987) (emphasis supplied) (citations omitted). Again, and even in light. of the efforts the City has taken to ?workaround? the con?nes of the statutory and constitutional provisions at issue here, the fact remains that bene?ts aside the City does not recognize these plaintiffs as ?married.? This extent of this disparate treatment is only highlighted by the extraordinary steps the City has taken in some areas to minimize the effect on plaintiffs of being labeled simply as ?domestic partners? when they have what they believe are legal marriages. A ?live controversy? thus exists between these plaintiffs and the City. Oliver 12. State Tax Com ofMissonri, 37 243, 247 (Mo. banc 2001); Mo. R. Civ. P. 87.01. 10 Turning to the substantive equal protection issues before it, the Court ?rst rejects the argument of the State defendants that this Court?s equal protection analysis is foreclosed by Baker v. Nelson, 409 US. 810, 93 37, 34 L.Ed.2d 65 (1972). There, the United States Supreme Court dismissed an appeal from a state court determination that prohibiting same-sex marriage did not violate the Constitution. It did so without an opinion, and on the basis that the appeal failed to present ?a substantial federal question.? Although the State defendants are generally correct that even such a disposition is considered to be on the merits and binding, the Supreme Court has held that this principle is inapplicable ?when doctrinal developments indicate otherwise.? Hicks v. Miranda, 422 US. 332, 344, 95 2281, 45 L.Ed.2d 223 (1975). In order to consider itself bound by Baker, this Court would have to ignore the existence of the Supreme Court?s subsequent decisions in Romer v. Evans, 517 US. 620, 116 1620, 134 2d 855 (1996), Lawrence v. Texas, 539 US. 558, 123 2472, 156 L.Ed.2d 508 (2003), and, of course, United States 12. Windsor, U.S. m, 133 2675, 186 L.Ed.2d 808 (2013). This is to say nothing ofthe fact that in the 42 years since Baker, 19 states have legalized same?sex marriage, and bans in 12 others have been invalidated by court decisions which are in various stages of appellate review. The Court concludes that Baker does not dispose of the issues before it. In 610.933), the Missouri Supreme Court con?rmed that, in determining whether a state law violates equal protection, Courts generally engage in a two-part process involving the identi?cation of the group disadvantaged by the law, and then depending on the nature of the group affected application of the appropriate level of scrutiny. Id. at 801?02. As the parties point out, and as the (910555;) court observed, the United States 11 Supreme Court has not yet determined what level of scrutiny applies to cases alleging discrimination based on sexual orientation.3 411 at 805?06, (citing l/lr?incisor, U.S. m, 133 2675, 186 L.Ed.2d 808 (2013)). The question ofwhether strict or intermediate scrutiny should be used in evaluating classifications based on sexual orientation is, thus, an open question in Missouri, awaiting an answer. See Glossip, 411 at 813 (Teitelman, dissenting). This answer may yet come from the Missouri Supreme Court or the United States Supreme Court. For now, however, this Court believes it is unnecessary to wade into the debate, because it concludes that the statutes and constitutional provisions at issue here are not rationally related to a legitimate governmental interest and, thus, cannot survive even the most deferential level of scrutiny. Even rational basis review requires an evaluation of the laws at issue and the allegedjustifications for such laws. ?[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist. on knowing the relation between the classi?cation adepted and the object to be attained.? Romer, 517 U.S. at 632. This is because it is impermissible for a state to ?rely on a classi?cation whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.? Cieburne, 473 US. at 446. 3 The Court notes plainti?s? argument that the Court should evaluate the laws at issue here as laws that allegedly discriminate against them on the basis of their sex, as opposed to their sexual orientation. It is true that some courts have evaluated the constitutionality of similar laws within that framework, see rag, Kitchen v. Herbert, 755 F.3d l93 (l 0?11 Cir. 2014). This Court declines to consider the issues before it in that way. First, as is discussed below, the Court determines that the statutory and constitutional provisions being considered fail to survive even rational basis review. Thus, it is unnecessary for the Court to accept plaintiffs? request to frame the questions before it as discrimination based on plaintiffs? sex in order to hold these laws to a higher level of scrutiny. Further, and more fundamentally, there is no evidence before the Court suggesting that petiole who are not gay or lesbian wish to marry someone of the same sex and are being prohibited from doing so. he essence of the alleged discrimination at issue here is not based on the fact that plaintiffs are men and women it is because they are gay men and lesbians. 12 Plaintiffs address in their motion a number of possible legitimate interests that could be advanced to provide a basis for the refusal of the State defendants to recognize plaintiffs? out-of-state marriages. See Plaintiffs? Motion for Summary Judgment, pp. 35? 47. To their credit, the State defendants do not attempt to argue that any of these potential justi?cations for treating plaintiffs? out-of?state marriages differently than those of opposite?sex couples are legitimate interests, or that the disparate treatment of plaintiffs and their out?of?state marriages is rationally related to advancing those interests. This may be because each of these justifications has been largely rejected by the courts that have examined it using this deferential standard. See id. see also, Baskin v. Began, 2014 WL 4359059 Cir. Sept. 4, 2014). 4 Although the State defendants allude to other interests generally, they advance only one specific interest they argue is legitimate. That is, ?Missouri has a rational interest in setting forth a standardized de?nition of marriage, such that local authorities (6. recorders of deeds) responsible for issuing marriage licenses do so consistently, uniformly, and predictably across Missouri?s 114 counties." State defendants" ?1 The United States Court of Appeals for the Eighth Circuit held in Citizens for Equal Protection v. Brzming, 455 F.3d 859 (81h Cir- 2006) that Nebraska?s same sex marriage ban was subject to rational basis review, and that the ban was ?rationally related to the government interest in ?steering procreation into marriage?? which was based in part on a ?responsible procreation" theory that ?justi?es conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same?sex couples, who cannot.? Id. at 867. First, as the State defendants themselves acknowledge, Brzmer is not binding on this Court, Fun-cl! v. State, 667 404, 407 (Mo. banc 1984). Second, it is not persuasive. It was decided before Windsor and is inconsistent with it. Further, the plaintiffs there were not alleging, as are plaintiffs here, that the state?s refusal to recognize their out-of?state marriages violated their rights, but only that the law discriminated against. them because it deprived them of?equai footing in the political arena.? 1d. at 865. Lastiy, and in any event, the ?responsible procreation? theory held by the Brazier court to be a legitimate government interest that is rationally advanced by banning same?sex man'iages is a theory that has been rejected by other courts, most recently in Baskin, 20M WL 4359059 at I 0 (?Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure?). Suggestions in Opposition to Plaintiffs? Motion. for Summary Judgment and in Support of Judgment on the Pleadings, p. 12. Plaintiffs agree that this is a legitimate interest, Plaintiffs? Reply and Opposition, p. 8, but argue that refusing to recognize plaintiffs? otherwise legal out-of?state marriages is not rationally related to it. The Court agrees. While having a standardized definition of marriage that promotes ?consistency, uniformity, and predictability? may be a legitimate governmental. interest, there is no logical relationship between that interest and laws that discriminate against gay men and lesbians who have been married in jurisdictions in which same-sex marriages are legal. This is especially so where the out?of~state marriages of similarly~ situated opposite?sex couples are recognized without question in Missouri, and have been for decades even in cases where those same marriages would be ?presumptively void? if contracted here, such as marriages between first cousins, or ?null and void? as is the case with common law marriages. 451.020, 451.0404, RSMO. urther, there is no evidence before the Court that treatng same-sex marriages from other jurisdictions differently assists or otherwise has any impact on the ability of ?local authorities? to do their jobs ?consistently, uniformly, or predictably.? How does treating same-sex couples lawfully married in other jurisdictions differently from their opposite~sex counterparts even have anything to do with ?local authorities?? No defendant has been able to say. Indeed, at oral argument, counsel for the State defendants conceded that ?recorders of deeds? have no role in determining whether an out?of?state marriage should be recognized or not, and that Missouri marriage licenses are not even issued to people who were married in other states. 14 Rather, the ?uniform, consistent, and predictable? practice that has been in place for decades around the country is that ?a marriage, valid where contracted, is valid everywhere.? Green, 242 SW. at 171. Frankly, it would be a more ?uniform, consistent, and predictable? practice to simply dictate that no marriage contracted in any state other than Missouri is valid here. Of course, that would probably be unconstitutional, as well. It would in any event be an arbitrary distinction, which. only underscores the fact that discriminating against plaintiffs the way these laws do is even more arbitrary than that. It is true as the State defendants argue that it is plaintiffs? burden to overcome the presumption that. these laws are rationally related to the above interest. Amick v. Dir. of Revenue, 428 63 8, 640 (Mo. banc 2014) (Citations omitted). Plaintiffs have unquestionably done so. The ?wisdom, social desirability or economic policy? underlying these laws may be questionable, but these issues are not the ones driving plaintiffs? claims, or this Court?s decision. Id. The requirement under even rational basis review that ?the classification bear a rational relationship to an independent and legitimate legislative end . . . ensure[s] that classi?cations are not drawn for the purpose of disadvantaging the group burdened by the law.? Romer, 517 US. at 633. As Judge Posner recently wrote for the Seventh Circuit in Baskin, degree of arbitrariness is inherent in. government regulation, but when there is nojustification for government?s treating a traditionally discriminated-against group signi?cantly worse than the dominant group in the society, doing so denies equal protection of the laws.? 2014 WL 4359059 at 12. The undisputed facts before the Court show that, to the extent these laws prohibit plaintiffs" legally contracted marriages from other states from being recognized here, they are wholly irrational, do not rest upon any reasonable basis, and are 15 purely arbitrary. All they do is treat one segment of the population gay men and lesbians differently than their same~sex counterparts, for no logical reason.5 Accordingly, they violate plaintiffs? rights to equal protection under the law, and are invalid. Other than arguing that the four plaintiffs bringing claims against it lack standing to do so an argument the Court has disposed ofw the City otherwise agrees that the statutes and constitutional provisions here deny plaintiffs equal protection of the law on the basis of their sexual orientation, and should be declared unconstitutional. Defendant City of Kansas City, Missouri?s Opposition to Plaintiffs? First Motion for Summary Judgment, p. 2; Defendant City ofKansas City, Missouri?s Opposition to Plaintiffs? Second Motion for Summary Judgment, p. 2. indeed, the City would simiiarly be prepared to stipulate that the laws at issue violate plaintiffs? rights to due process, as well. 10'. Plaintiffs? argument that these laws violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution is based on their contention that. the laws arbitrarily intrude on plaintiffs? fundamental right to marry and remain married. The Court assumes the Missouri Supreme Court will have an opportunity to provide the last word on all of the important legal issues presented by this case, and its review of this Judgment will be de novo. Nail v. Husch Blackwelt Sander-tr, LLP, 436 556 (Mo. banc 2014). In light of that 5 At oral argument, counsel for the State defendants was asked how it advanced the stated purpose of these laws to refuse to recognize plaintiff?s? out-of?state marriages, but to recognize out-of?state common iaw marriages and marriages between ?rst cousins. Counsel?s response was that, traditionaliy, those types of marriages and others like them were between men and women. This may be a true statement, as far as it goes. It is also true, however, that advancing ?traditional? views of morality, marriage, intimacy, etc. has been dispensed with as a legitimate reason to validate laws that discriminate. See eg, Laiw'ence, 53.9 US. at 577-78 fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a suf?cient reason for upholding a law prohibiting the practice; . . . (quoting Bowers v. Hardwick, 478 US. 186, 216, 106 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting?. l6 standard of review, the Court believes it is unnecessary to go further than it has, and accordingly declines to address that question here. RELIEF Plaintiffs seek both declaratory and injunctive relief pursuant to 42 U.S.C. 1983. No defendant disputes that, should the Court find the issues in favor of plaintiffs, that declaratory and injunctive relief would be appropriate here. Indeed, section 1983 authorizes suits ?in equity.? In addition, it has long been held that, where a party proves his or her constitutional rights are being violated, irreparable harm supporting the entry of an injunction prohibiting the discriminatory practice is also shown. Planned Parenthood 0fMirm., Inc. v. Citizensfor Cami-mm.in Action, 558 F.2d 861, 867 (8111 Cir. 1977). In any event, if - as is the case here it is found that declaratory relief is appropriate, ?there is little practical difference? between that and injunctive relief. C'L'aiifomia v. Grace Brethren Church, 457 U.S. 393, 408, 102 2498, 73 L.Ed.2d 93 (1982). Lastly, the relief sought by plaintiffs includes a request for attorney?s fees pursuant to 42 U.S.C. 1988(b). That section provides, in pertinent part: In any action or proceeding to enforce a provision of sections 1981, i981a, 1982, 1983, i985, and 1986 ofthis title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney?s fee as part of the costs, . . . . Since plaintiffs are prevailing parties on their 1983 claims, the Court may, in its discretion, include an award of attorney?s fees in its judgment. Heuer v. Cify ofCape Git-urticaria 370 903, 916 (Mo. App. ED. 2012). The question of whether to award fees and in what amount depends on the circumstances of the case, including the extent ofplaintiffs? success on their claims, and the ?relatedness of the claims raised.? 1a. (citing Hensley v. Eckerharl, 461 U.S. 424, 103 1933, 76 LE.de 40 17 As was the case with the question of whether or not plaintiffs would be entitled to injunctive relief under section 1983, defendants have focused the entirety of their responses to plaintiffsa motions for summary judgment on the merits of plaintiffs? constitutional claims. No defendant has questioned whether, if successful, plaintiffs would be entitled to an award of fees under section 1988(b). The Court having taken into account the circumstances of the case and the determinations made herein concludes in its discretion that an award of such fees is appropriate. Plaintiffs and defendants will have 14 days from the date of this judgment to submit any pleadings, fee records, time sheets, and any other documents to assist the Court in determining the amount of the award, and the Court will decide the issue forthwith and amend this Judgment accordingly. CONCLUSION ACCORDINGLY, AND FOR THE REASONS SET FORTH, ABOVE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that plaintiffs? first and second motions for summary judgment are GRANTED, IN PART. Summary judgment is entered in favor of all plaintiffs against the State defendants, and in favor of plaintiffs Parks, Lopez, Short, and Goodman~Short against the City of Kansas City, as follows: 1.. The Court finds and declares that sections 451.022 and 104.012 of the Revised Statutes of Missouri, and Article section 33 of the Missouri Constitution prohibit 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 the United States Constitution. 18 2. Defendants, their agents, servants, employees, attorneys, and all persons acting in 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 Missouri of 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 acting in 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 as the marriages of any same-sex couples entered into in any jurisdiction in which same?sex couples may lawfully marry. 4. Pursuant to 42 U.S.C. 1988(b), the Court awards plaintiffs their reasonable attorney?s fees incurred in pursuing this action. Within 14 days from the date of this Judgment, the parties shall submit all materials related to their position regarding the amount of such. an award for the Court?s consideration. 5. In all other respects, plaintiffs? motions for summaryjudgment are DENIED. 6. The State defendants? motion on the pleadings is hereby DENIED. 7. Costs are assessed against defendants. IT IS SO ORDERED. {0 I ?5 I DATE .1. DALE CircuGJ'adge 19 Pursuant to Rule 103.09, notice ofthe entry of the above orde?judgmeni has been provided via the electronic filing system. to counsel of record. Judicial Administrative Assistant, Division 6 20