                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1452
                        ___________________________

   Susan Waters; Sally Waters; Nickolas Kramer; Jason Cadek; Crystal Von
 Kampen; Carla Morris-Von Kampen; Gregory Tubach; William Roby; Jessica
 Kallstrom-Schreckengost; Kathleen Kallstrom-Schreckengost; Marjorie Plumb;
                Tracy Weitz; Randall Clark; Thomas Maddox

                      lllllllllllllllllllll Plaintiffs - Appellees

                                          v.

Pete Ricketts, in his official capacity as Governor of Nebraska; Doug Peterson, in
 his official capacity as Attorney General of Nebraska; Leonard J. Sloup, in his
  official capacity as Acting Tax Commissioner of the Nebraska Department of
   Revenue; Courtney Phillips, in her official capacity as CEO of the Nebraska
                    Department of Health and Human Services

                     lllllllllllllllllllll Defendants - Appellants

        Dan Nolte, in his official capacity as the Lancaster County Clerk

                            lllllllllllllllllllll Defendant

                             ------------------------------

                                  Liberty Counsel

                lllllllllllllllllllllAmicus on Behalf of Appellant(s)

  President of the House of Deputies of the Episcopal Church and the Episcopal
Bishops of Missouri and Nebraska; General Synod of the United Church of Christ;
 Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College
and Jewish Reconstructionist Communities; Union for Reform Judaism; Unitarian
   Universalist Association; Affirmation; Covenant Network of Presbyterians;
Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; Methodist
Federation for Social Action; More Light Presbyterians; Muslims for Progressive
 Values; Parity; Reconciling Ministries Network; Reconciling Works: Lutherans
 for Full Participation; Religious Institute; 24 Employers; American Sociological
Association; Howard University School of Law Civil Rights Clinic; Gary J. Gates;
  Historians of Marriage; Constitutional Law Scholars; American Psychological
     Association; Nebraska Psychological Association; American Psychiatric
     Association; American Academy of Pediatrics; American Association for
  Marriage and Family Therapy; Nebraska Association for Marriage and Family
 Therapy; American Psychoanalytic Association; National Association of Social
   Workers; National Association of Social Workers Nebraska Chapter; Family
  Equality Council; COLAGE; Historians of Antigay Discrimination; Americans
   United For Separation of Church and State; National Women's Law Center;
Connecticut Women's Education and Legal Fund; Legal Momentum; Legal Voice;
 National Association of Women Lawyers; National Partnership for Women and
  Families; Women's Bar Association of the District of Columbia; Women's Bar
   Association of Illinois; Women's Law Project; Williams Institute Scholars of
                         Sexual Orientation and Gender Law

                  lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                       ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                              Submitted: July 2, 2015
                              Filed: August 11, 2015
                                   [Published]
                                  ____________

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.



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       Plaintiffs are seven same-sex couples seeking to marry in Nebraska or to have
their marriage in another state recognized in Nebraska. They also seek state benefits
incident to marriage. The district court1 granted Plaintiffs’ motion for a preliminary
injunction. It found that Article I, § 29 of the Nebraska Constitution, which denies
same-sex couples the right to marry, likely violates the U.S. Constitution’s guarantee
of equal protection. Nebraska brings an interlocutory appeal. Having jurisdiction
under 28 U.S.C. § 1292(a)(1), this court affirms.

      While the appeal was pending, the Supreme Court decided Obergefell v.
Hodges, 135 S. Ct. 2584 (2015), abrogating Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006). This court, having stayed the injunction pending
appeal, vacated the stay after Obergefell. Nebraska filed a suggestion of mootness
and a motion to vacate the preliminary injunction.

      Nebraska no longer argues that Plaintiffs are unlikely to succeed on the merits.
The challenged provision is unconstitutional. As Obergefell concluded:

      [T]he right to marry is a fundamental right inherent in the liberty of the
      person, and under the Due Process and Equal Protection Clauses of the
      Fourteenth Amendment couples of the same-sex may not be deprived of
      that right and that liberty. The Court now holds that same-sex couples
      may exercise the fundamental right to marry. No longer may this liberty
      be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and
      now is overruled, and the State laws challenged by Petitioners in these
      cases are now held invalid to the extent they exclude same-sex couples
      from civil marriage on the same terms and conditions as opposite-sex
      couples.

Obergefell, 135 S. Ct. at 2604-05. The Supreme Court also noted,


      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

                                         -3-
      [I]t must be emphasized that religions, and those who adhere to religious
      doctrines, may continue to advocate with utmost, sincere conviction
      that, by divine precepts, same-sex marriage should not be condoned.
      The First Amendment ensures that religious organizations and persons
      are given proper protection as they seek to teach the principles that are
      so fulfilling and so central to their lives and faiths, and to their own deep
      aspirations to continue the family structure they have long revered. The
      same is true of those who oppose same-sex marriage for other reasons.
      In turn, those who believe allowing same-sex marriage is proper or
      indeed essential, whether as a matter of religious conviction or secular
      belief, may engage those who disagree with their view in an open and
      searching debate. The Constitution, however, does not permit the State
      to bar same-sex couples from marriage on the same terms as accorded
      to couples of the opposite sex.

Id. at 2607.

       Nebraska suggests that Obergefell moots this case. But the Supreme Court
specifically stated that “the State laws challenged by Petitioners in these cases are
now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury
Emps. Union, 513 U.S. 454, 477-78 (1995) (limiting relief to the parties before the
Court and noting “we neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants”). The Court invalidated laws in
Michigan, Kentucky, Ohio, and Tennessee—not Nebraska. See Campaign for S.
Equal. v. Bryant, 2015 WL 4032186, at *2 (5th Cir. July 1, 2015) (ordering district
court to enter final judgment that Texas laws denying same-sex couples the right to
marry are unconstitutional); Conde-Vidal v. Rius-Armendariz, No. 14-2184 (1st Cir.
July 8, 2015) (judgment vacating and remanding district court judgment that
dismissed challenge to law denying same-sex marriage). The Court also did not
consider state benefits incident to marriage, which were addressed by Plaintiffs and
the district court here. Nebraska has not repealed or amended the challenged
constitutional provision.


                                          -4-
       Nebraska’s assurances of compliance with Obergefell do not moot the case.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190
(2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.”). These assurances may,
however, impact the necessity of continued injunctive relief. The district court should
consider Nebraska’s assurances and actions and the scope of any injunction, based
on Obergefell and Federal Rule of Civil Procedure 65(d). Until then, if Nebraska is
unclear on its obligations under the preliminary injunction, it may clarify them with
the district court. See S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d
771, 776 (8th Cir. 2012) (preliminary injunctions are reviewed for abuse of
discretion, reversing when they are based on “clearly erroneous factual findings or
erroneous legal conclusions”). See also Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir.
2014) (finding injunction with language identical to the injunction here is not vague).

     The preliminary injunction is affirmed and the case remanded for entry of final
judgment on the merits in favor of the plaintiffs. All pending motions are denied.
                      ______________________________




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