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IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN
EQUALITY, ET AL.
V.

PLAINTIFFS
CIVIL ACTION NO. 3:14cv818-CWR-LRA

PHIL BRYANT, in his official capacity


as Governor of the State of Mississippi,
ET AL.
DEFENDANTS
______________________________________________________________________________
MEMORANDUM OF AUTHORITIES SUPPORTING GOVERNOR
PHIL BRYANTS AND ATTORNEY GENERAL JIM HOODS
RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION
______________________________________________________________________________
INTRODUCTION
The background and circumstances of this legal dispute over social policy are
well-known. Since the creation of the United States, the individual states have
possessed virtually exclusive authority to regulate domestic relations. Until very
recent years, every individual states regulations conformed with the traditional
understanding that marriage exists, and can only be defined, as between one man
and one woman. Then some individual states stances on the meaning of marriage
changed through judicial interpretations of their own constitutions, and later,
legislation and other democratically-adopted initiatives.
Meanwhile, in 1997, like a majority of other states and admittedly in light of
developments afoot elsewhere, the Mississippi Legislature codified and reinforced
the States traditional understanding of marriage by enacting Mississippi Code
Section 93-1-1(2) which provides that

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Any marriage between persons of the same gender is prohibited and


null and void from the beginning. Any marriage between persons of
the same gender that is valid in another jurisdiction does not
constitute a legal or valid marriage in Mississippi.
Subsequently, in November 2004, Mississippians enacted Article 14, Section 263A
of the Mississippi Constitution pursuant to the States legislative constitutional
amendment procedure, approved by 86% of total votes cast in that years general
election. The constitutional provision affirms that
Marriage may take place and may be valid under the laws of this State
only between a man and a woman. A marriage in another State or
foreign jurisdiction between persons of the same gender, regardless of
when the marriage took place, may not be recognized in this State and
is void and unenforceable under the laws of this State.
Particularly in the past eighteen months since the United States Supreme
Court decided United States v. Windsor, 133 S.Ct. 2675 (2013), different plaintiffs
have filed suit in different courts claiming that the federal Constitution now forbids
state laws maintaining governmentally sanctioned marriage as solely applicable to
opposite-sex couples. Courts have approached the constitutional issues with
different rationales and reached different ultimate results.
On October 20, 2014, Plaintiffs, the Campaign for Southern Equality,
Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb (collectively
the Campaign) raised the same issues targeting Mississippis laws by suing the
Governor, Attorney General, and a Circuit Clerk. Simultaneously, the Campaign
moved for a preliminary and immediate injunction constituting full and final relief
on the merits that is now before the Court.

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A preliminary injunction is an extraordinary remedy in any case and


normally requires proving four elements, one based on the legal validity of the
movants claims and three grounded in the equities bearing on the parties and the
public. Additionally, when the relief sought constitutes a mandatory command
altering the defendants conduct, and would essentially but only temporarily resolve
the whole case in the movants favor, the proof required must be overwhelming.
The Campaigns instant motion fails to satisfy all the foregoing
considerations. A substantial likelihood of success on the merits has not been
proven. Supreme Court precedent forecloses the Campaigns claims. And, even if
not, Mississippis traditional marriage laws satisfy rational basis reviewthe only
standard of review applicable to them. The equities, when appropriately balanced,
also weigh against redefining marriage in Mississippi by way of preliminary
injunctive relief. There is no threat of immediate irreparable harm, the balance of
potential harms favors the State, and the public interest would be disserved by the
Campaigns requested relief. For all those reasons explained in detail below, the
Campaigns motion should be denied.
ARGUMENT
A preliminary injunction is extraordinary in any instance, and even more
suspect when, as here, the movants seek a mandatory injunctive award equivalent
to the relief sought in the final judgment on the merits. Enterprise Intl, Inc. v.
Corporation Estatal Petrolera Ecuatoriana, 762 F.2d 464, 476 (5th Cir. 1985) (A
preliminary injunction, therefore, should not grant relief properly awarded only in a
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final judgment, and it is an abuse of discretion for the district court to issue a
preliminary injunction which permits one party to obtain an advantage by acting,
while the hands of the adverse party are tied by the writ). The standard of review
places the burden on the Campaign to prove each of the following elements:
(1) a substantial likelihood they will prevail on the merits; (2) a
substantial threat that they will suffer irreparable injury if the
injunction is not granted; (3) their substantial injury outweighs the
threatened harm to the party to be enjoined; and (4) granting the
preliminary injunction will not disserve the public interest.
Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th
Cir. 2012) (internal citation omitted). A failure to meet its burden on any one of
those elements requires denial of the Campaigns requested relief. Bond Pharmacy,
Inc. v. AnazaoHealth Corp., 815 F.Supp.2d 966, 971 (S.D. Miss. 2011) ([i]f the
movant fails clearly with respect to any one of the four criteria, then the
preliminary injunction shall be denied.) (quoting Metal Mgmt. Mississippi, Inc. v.
Barbour, 2008 WL 3842979, at *4 (S.D. Miss. Aug. 13, 2008)).
I. The Campaign Lacks a Substantial Likelihood of
Prevailing on the Merits.
A.

Baker v. Nelson Precludes the Campaigns Fourteenth Amendment


Claims.
In Baker v. Nelson, the Minnesota Supreme Court specifically held that a

state statute defining marriage as a union between persons of the opposite sex did
not violate the First, Eighth, Ninth, or Fourteenth Amendments of the United
States Constitution. 191 N.W. 2d 185 (Minn. 1971), appeal dismissed, 490 U.S. 810
(1972). The Minnesota Supreme Court rejected the Baker plaintiffs claim that a
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right to marry, without regard to the sex of the parties, is a fundamental right
protected by the Fourteenth Amendment. Id. at 186-87. It also held the Equal
Protection Clause was not offended by the states classification of persons
authorized to marry and the States choice to define marriage as between opposite
sex couples was not a product of irrational or invidious discrimination. Id. at
187.1
The Baker plaintiffs appealed the Minnesota Supreme Courts ruling
pursuant to 28 U.S.C. 1257(2).2 The United States Supreme Court unanimously
rejected the Baker plaintiffs arguments by dismissing the appeal for want of a
substantial federal question. Baker, 409 U.S. at 810. That disposition constituted
a decision on the merits. It was, and remains, a precedential ruling on the merits
that binds all state and lower federal courts. See Mandel v. Bradley, 432 U.S. 173,
176 (1977) (summary dismissals prevent lower courts from coming to opposite
conclusions on the precise issues presented and necessarily decided by those
actions); Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting C. Wright, Law of

In reaching its holding endorsed by the Supreme Court, the Minnesota Supreme
Court expressly rejected the argument that Loving v. Virginia, 388 U.S. 1 (1967), which
relied on the Constitutions prohibition against race discrimination to strike down a
Virginia interracial marriage ban five years earlier, compelled a different result. Baker,
191 N.W. 2d at 187.
2

At the time, Section 1257 provided an automatic right of appeal to the United
States Supreme Court from decisions of States highest courts rejecting federal
constitutional challenges to State laws. Congress has since eliminated that automatic
right of appeal. See Public Law No. 100-352 (effective June 27, 1988). However, when the
Supreme Court decided Baker, its review of that type of constitutional challenges was
mandatory.

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Federal Courts 495 (2d ed. 1970) and explaining [s]ummary disposition of an
appeal, . . . either by affirmance or dismissal for want of a substantial federal
question, is a disposition on the merits); Cervantes v. Guerra, 651 F.2d 974, 981 (5th
Cir. 1981) (summary dismissal is a dismissal on the merits that must be given full
precedential effect by lower courts).
Over the past ten years, and even as recently as last week, a multitude of
state and federal courts have followed Bakers mandate in rejecting Fourteenth
Amendment-based challenges to state laws prescribing a traditional man-woman
definition of marriage.3 Two judges in this Court have also specifically held Baker
3

See, e.g., DeBoer v. Snyder, --- F.3d ---, 2014 WL 5748990, at *5-7 (6th Cir. Nov. 6,
2014) (holding Baker remains binding Supreme Court precedent); Citizens for Equal
Protection v. Bruning, 455 F.3d 859, 870-71 (8th Cir. 2006) (citing Baker in rejecting
constitutional claim to same sex marriage); Conde-Vidal v. Garcia-Padilla,--- F.Supp.3d ---,
2014 WL 5361987, at *10 (D. P.R. Oct. 21, 2014) (holding Baker, which necessarily decided
that a state law defining marriage as a union between a man and a woman does not violate
the Fourteenth Amendment, remains good law); Merritt v. Attorney General, 2013 WL
6044329, at *2 (M.D. La. Nov. 14, 2013) (finding under Baker, the Constitution does not
require states to permit same-sex marriage); Jackson v. Abercrombie, 884 F.Supp.2d 1065,
1086-88 (D. Hawaii 2012) (holding Baker precluded federal due process and equal
protection challenges to States marriage classifications), vacated as moot on account of
legislative action, 2014 WL 5088199 (9th Cir. Oct. 10, 2014); Wilson v. Ake, 354 F.Supp.2d
1298, 1304-05 (M.D. Fla. 2005) (dismissing claim that Florida must recognize
Massachusetts marriage because Baker is binding precedent upon this Court); Langan v.
St. Vincents Hosp. of N.Y., 25 A.D. 3d 90, 94 (N.Y. App. Div. 2005) (finding Baker
precluded finding that same sex marriages give rise to any rights of survivorship as a
matter of constitutional rights); Morrison v. Sadler, 821 N.E. 2d 15, 19-20 (Ind. Ct. App.
2005) (plurality opinion) (recognizing Baker as binding United States Supreme Court
precedent indicating that state bans on same sex marriage do not violate the United States
Constitution.); Hernandez v. Robles, 26 A.D. 3d 98, 115 (N.Y. App. Div. 2005) (recognizing
Plaintiffs equal protection claim is foreclosed by the Supreme Courts summary
disposition in Baker v. Nelson.). See also Kitchen v. Herbert, 755 F.3d 1193, 1231 (10th Cir.
2014) (Kelly, J., concurring in part and dissenting in part) (arguing the import of Baker to
this case is clear: neither due process nor equal protection bar states from defining
marriage as between one man and one woman, or require states to extend marriage to
same-gender couples); Massachusetts v. U.S. Dept. of Health and Human Services, 682

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controls resolution of challenges to Mississippis traditional marriage laws. In 2006,


Judge Sumner and Judge Lee both relied on Baker to dismiss Fourteenth
Amendment claims targeting Mississippi Constitution Section 263A and Mississippi
Code Section 93-1-1(2). Order in Walker v. Mississippi, Civil Action No. 3:04cv140LS (Apr. 11, 2006) (copy affixed to Response as Ex. 1), report and recommendation
adopted, Order in Walker v. Mississippi, Civil Action No. 3:04cv140-LS (July 25,
2006) (copy affixed to Response as Ex. 2). Judge Sumner analyzed the equal
protection and due process claims, found Baker conclusively foreclosed them, and
recommended dismissal with prejudice because until the United States Supreme
Court makes a different pronouncement on the issues decided in Baker, other
federal courts must reach the same result on those issues. Order, Response Ex. 1
at 3. Subsequently, Judge Lee fully adopted Judge Sumners recommendation,
dismissed the plaintiffs claims, and recognized
Plaintiffs complaint in this case presents an issue of law, and the
resolution of that issue rests on application of clear federal
precedent, including the opinion of the United States Supreme Court
in Baker v. Nelson, 409 U.S. 810 (1972). In considering this issue,
the court has not merely relied on the authorities identified by
the State, but has conducted its own research on the issue, and
has determined that the authorities support the States
position.
Order, Response Ex. 2 at 2 (emphasis added).
The Campaigns opening brief fails to mention Baker. Its forthcoming reply

F.3d 1, 8 (1st Cir. 2012) (holding Baker is binding precedent barring claims based on an
alleged constitutional right to same-sex marriage).

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brief will claim the Supreme Court has silently overruled Baker and emphasize
that, over the past several months, some lower federal courts in other jurisdictions
have bought-in to that theory. There are compelling and ultimately fatal flaws in
anything the Campaign will say about Baker.
While the Campaign might believe lower courts can ignore established
precedents by hypothesizing that the Supreme Court has since implicitly abrogated
them, the Supreme Court has disavowed that practice. When directly applicable
precedent like Baker exists, or even when a question exists over whether that
precedent is still good law, lower courts should follow the precedent. The Supreme
Court has established that [i]f precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line of decisions, lower
courts should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions. Rodriquez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989); see also Agostini v. Felton, 521 U.S. 203, 237
(1997) (re-affirming Rodriquez de Quijas and discouraging lower courts from
concluding Supreme Court precedents have been overruled by implication); Scheiber
v. Dolby Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.) ([W]e have no
authority to overrule a Supreme Court decision no matter how dubious its
reasoning strikes us, or even how out of touch with the Supreme Courts current
thinking the decision seems.). It is the Supreme Court Justices task to ferret out
reasons from different lines of authority to overrule their precedents, if warranted.

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In the meantime, lower courts are not authorized to assume that role by guessing
how the Justices might rule.4
Even if lower courts could ignore established precedent by predicting the
Supreme Court has changed course in another line of decisions, in this instance, no
such other line of decisions diminishes Baker. Subsequent Supreme Court decisions
addressing issues tangential to same-sex marriage, such as Romer v. Evans, 517
U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003), did not do the trick. If
those decisions intended to overrule or even diminish Baker, the Supreme Court
could have said so, but did not. The Court has disclaimed that intention, see
Lawrence, 539 U.S. at 578 (cautioning that the case does not involve . . . formal
recognition of same-sex marriages), and lower courts consistently rejected it in the
wake of Romer and Lawrence. See, e.g., Massachusetts, 682 F.3d at 8; Bruning, 455
F.3d at 870-71; Walker v. Mississippi, Civil Action No. 3:04cv140-LS (Apr. 11, 2006),
Response Ex. 1 (following Baker and recognizing Lawrence did not alter the
dispositive effect of the Baker decision, as the issues were not the same, nor did the
decision make any explicit reference to the Baker holding.).
A decade after Lawrence, the Supreme Court had a chance to address Baker

Predicting the Supreme Courts current stance on a previously settled issue based
on a denial of certiorari is similarly inappropriate. The Campaign might erroneously
contend recent denials of certiorari in Fourth Circuit and Tenth Circuit same-sex marriage
cases tell us Baker lacks value, or assert those denials endorse the merits of their case.
Any claim of those sorts is patently wrong. Denial of certiorari is not affirmation of a
decision, or even tantamount to affirmation. Teague v. Lane, 489 U.S. 288, 296 (1989) (As
we have often stated, the denial of a writ of certiorari imports no expression of opinion
upon the merits of the case.) (quoting United States v. Carver, 260 U.S. 482, 490 (1923)).

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when Windsor invalidated the federal Defense of Marriage Act of 1996s provisions
prohibiting recognition of same-sex marriages currently authorized by state law for
purposes of federal statutory benefits. But Windsor declined to expressly reach the
issue of whether the Fourteenth Amendment compels states to honor same-sex
marriages decided in Baker, or even comment on it. Windsor did not even mention
Baker, much less criticize it, which the majority surely would have done if there was
any intention to overrule Baker. Instead, Windsor disavowed the idea it reached
any further than its own unique facts and circumstances by commanding that its
opinion and its holding are confined to those lawful marriages already authorized
by state law. Windsor, 133 S.Ct. at 2696.
Even without Windsors express disclaimer, Baker and Windsor do not
conflict. Windsor invalidated federal DOMAs Section 3 because New York
conferred an equal dignity on same-sex couples that the federal statute
displace[d] by treating those persons as living in marriages less respected than
others. Windsor, 133 S.Ct. at 2696. In concluding that DOMA injure[d] those
whom the State, by its marriage laws, sought to protect in personhood and dignity,
id., the Court did not create a free-standing substantive right for same sex couples
to marry or have their marriages recognized.
Windsor reinforced and complemented Baker by emphasizing the need to
safeguard the States historic and essential authority to define the marital
relation free from federal intrusion. Windsor, 133 S.Ct. at 2692. The Court

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stressed that, [b]y history and tradition the definition and regulation of marriage .
. . has been treated as being within the authority and realm of the separate States.
Id. at 2689-90. It reaffirmed that [t]he definition of marriage is the foundation of
the States broader authority to regulate the subject of domestic relations with
respect to the [p]rotection of offspring, property interests, and the enforcement of
marital responsibilities. Id. at 2691 (quoting Williams v. North Carolina, 317 U.S.
287, 298 (1942) (alteration in original)). And, precisely due to its understanding of
the martial relation as a virtually exclusive province of the States, id. at 2680
(quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)), the Court concluded that
DOMAs refusal to respect New Yorks decision to permit same sex marriage
represented an impermissible federal intrusion on state power. Id. at 2692.
Baker has not been displaced by Windsor and it cannot be overruled by lower
courts to reach a contrary desired result. Baker leaves the definition of marriage for
every state to decide for itself. Windsor prohibits the federal government from
interfering in a states decision whether to allow same sex marriage. Reading the
precedents together, they establish a rational and consistent, federalism-based
resolution to the difficult issues presented by state same-sex marriage laws that
courts in this Circuit and elsewhere have wisely accepted by refusing to overrule
Baker on their own accord. See DeBoer, --- F.3d ---, 2014 WL 5748990, at *5-7;
Conde-Vidal, --- F.Supp.3d ---, 2014 WL 5361987 at *10; Merritt, 2013 WL 6044329,
at *2. This Court should follow the same approach, hold Baker compels finding the

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Campaign has no likelihood of success on the merits, and deny the request for a
preliminary injunction.
B.

The Campaigns Fourteenth Amendment Claims Lack Merit


Even assuming Baker does not preclude the Campaign from prosecuting the

State, finding it has a substantial likelihood of success would still be inappropriate.


The constitutional issues are important and contentious, and can be made overcomplicated. But the pathway to correctly concluding that the Campaign has no
substantial likelihood of success is simple. Heightened scrutiny is not
appropriate. No suspect class or fundamental right is involved. Mississippis
traditional marriage laws satisfy rational basis review.
1.

Heightened Scrutiny Does Not Apply

The test for whether state laws should be subjected to heightened scrutiny
or rational basis review under the Fourteenth Amendment is well-established: if
a law neither burdens a fundamental right nor targets a suspect class, courts apply
rational basis review and will uphold the legislative classification so long as it
bears a rational relation to some legitimate end. Romer, 517 U.S. at 631 (citing
Heller v. Doe, 509 U.S. 312, 319-20 (1993)); see also Greater Houston Small Taxicab
Co. Owners Assn v. City of Houston, Texas, 660 F.3d 235, 239 (5th Cir. 2011).
Properly applying the test here, the Court only needs to analyze whether
Mississippis traditional marriage laws discriminate against a recognized suspect
class or implicate an acknowledged fundamental right, and after concluding no,
identify whether the laws are rationally related to a legitimate goal, and hold they
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do.
No Suspect Classification. Pages six to nine of the Campaigns brief
complain Mississippis marriage laws discriminate on the basis of sexual
orientation, same-sex couples constitute a suspect class, and thereby some form of
heightened scrutiny is triggered here. Those contentions do not comport with
controlling Supreme Court and Fifth Circuit precedent, or numerous other Circuits
persuasive rulings that likewise do not recognize sexual orientation as a protected
class despite having had numerous opportunities to hold otherwise.
The Supreme Court has always treated state law classifications allegedly
discriminating on account of sexual orientation as subject to rational basis review.
For example, in Romer, the Court rejected heightened scrutiny in evaluating a
state law banning state or local legislation that created rights for persons to claim
minority status, quota preferences, protected status, or discrimination based on
sexual orientation. 571 U.S. at 624. The Court deemed the state law
unconstitutional, however, it did so only by applying rational basis review. Id. at
631-33. The same held true in Windsor, where the Court did not elevate the level of
scrutiny levied against a federal DOMAs Section 3. The plaintiff alleged sexual
orientation discrimination but the Court exclusively relied on rational basis
jurisprudence reserved for non-suspect classifications to reach its limited result. Id.
at 2693 (relying on Romer and Department of Agriculture v. Moreno, 413 U.S. 528
(1973)); see also id. at 2706 (Scalia, J., dissenting) (As nearly I can tell, the Court

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agrees [that rational-basis review applies]; its opinion does not apply strict scrutiny,
and its central propositions are taken from cases like Moreno.). The Campaign
cannot credibly assert the Supreme Court has deemed sexual orientation gets
suspect class treatment.
Consistent with the Supreme Court, the Fifth Circuit also exclusively applies
rational basis review to laws allegedly burdening persons on the basis of sexual
orientation. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (Neither the
Supreme Court nor this court has recognized sexual orientation as a suspect
classification . . ..). So too does nearly every other Circuit that has taken on the
issue. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v.
Gates, 528 F.3d 42, 61 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103,
1113-14 & n. 9 (10th Cir. 2008); Bruning, 455 F.3d at 865-66; Lofton v. Secy of Dept.
of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Veney v. Wyche, 293
F.3d 726, 731-32 (4th Cir. 2002); but see Latta v. Otter, --- F.3d ---, 2014 WL 4977682
(9th Cir. Oct. 7, 2014); Windsor v. United States, 699 F.3d 169, 180-85 (2nd Cir.
2012).
The Campaign acknowledges the Fifth Circuits controlling precedent bars its
quest to establish sexual orientation as a new suspect classification here.
Nevertheless, it contends the Court should pay no attention to controlling precedent
because a straw man concept justifies recognizing sexual orientation as a suspect
classification for the first time in this jurisdiction. On page nine of its brief, the

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Campaign says that, in Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), the Fifth
Circuit declined to elevate sexual orientation to a suspect classification based on
then-existing Supreme Court precedent in Doe v. Commonwealths Attorney for the
City of Richmond, 425 U.S. 901 (1976). Then, the Campaign concludes that Wade is
undermined because Commonwealths Attorney has since been repudiated.
Sexual orientation cannot become a new suspect classification in the Fifth
Circuit by setting up Wade, then knocking it down. Whether Wades, or
Commonwealths Attorneys, rationale have been abrogated or not is irrelevant here.
Apart from Wade, the Fifth Circuits stance that sexual orientation does not qualify
as a suspect classification is based on Romer, a decision the Campaign might wish
had gone further but would never claim is bad law. Johnson, 385 F.3d at 532-33
(citing Romer, 517 U.S. at 631-32). Unless and until the Fifth Circuit says
otherwise, discrimination allegedly based on sexual orientation is subject to
rational basis review.5
Mississippis traditional marriage laws do not discriminate against a suspect
5

In passing, footnote 8 of the Campaigns brief makes a similar plea for


heightened scrutiny that would break new ground in the Fifth Circuit on the subject of
gender discrimination. Federal appellate courts, including the Fifth Circuit, have not
endorsed the Campaigns theory that traditional man-woman marriage laws, like
Mississippis, discriminate based on gender. Disparate treatment of men and women as a
class is a threshold element for gender discrimination. See, e.g., United States v. Virginia,
518 U.S. 515, 519-20 (1996). But Mississippis laws defining marriage do not disadvantage
either sex as a class. The laws apply to same-sex male couples and same-sex female
couples alike. See, e.g., Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1286
(N.D. Okla. 2014) ([c]ommon sense dictates a man-woman definition of marriage has
nothing to do with gender-based prejudice or stereotypes); Jackson, 884 F.Supp.2d at 1099
(collecting authorities and agree[ing] with vast majority of courts considering the issue
that an opposite-sex definition of marriage does not constitute gender discrimination).

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class. Heightened scrutiny based on a suspect classification does not apply here.
No Fundamental Right. Alternatively invoking heightened scrutiny
against Mississippis traditional marriage laws as a consequence of recognizing a
fundamental right to same-sex marriage would be just as inappropriate as creating
a new suspect class. The Campaigns fundamental right analysis fails for ignoring
what must be proven to define and establish fundamental rights:
Our established method of substantive-due-process analysis has two
primary features: First, we have regularly observed that the Due
Process Clause specially protects those fundamental rights and
liberties which are, objectively, deeply rooted in this Nations history
and tradition, Moore [v. City of E. Cleveland, 431 U.S. 494, 503 (1977)]
(plurality op.); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (so
rooted in the traditions and conscience of our people as to be ranked as
fundamental), and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed,
Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have
required in substantive-due-process cases a careful description of the
asserted fundamental liberty interest. [Reno v.] Flores, [507 U.S. 292,
302 (1993)]; Collins [v. City of Harker Heights, 503 U.S. 115, 125
(1992)]; Cruzan [v. Director, Miss. DOH, 497 U.S. 261, 277-78 (1990)].
Our Nations history, legal traditions, and practices thus provide the
crucial guideposts for responsible decisionmaking, Collins, supra, at
125, that direct and restrain our exposition of the Due Process Clause.
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). The test for categorizing a
right as fundamental boils down to whether, when carefully described, the
purported fundamental right is deeply rooted in this Nations history and
tradition. Id. at 720-21; Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505 (5th
Cir. 2006) (the proponent of a claimed fundamental right must describe it with
particularity and establish it as deeply rooted in this Nations history and

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tradition) (internal quotation marks and citations omitted).


When carefully described, the Campaign undoubtedly wants a newlyestablished fundamental right to same-sex marriage. The problem is that same sex
marriage as a concept, much less as a right, is not rooted in this countrys history
and tradition. As everyone knows and Windsor recognized, the notion of same-sex
marriage is a new perspective, a new insight that has not existed until recently.
Windsor, 133 S.Ct. at 2689. In past few years, some states have created a right to
marry for same-sex couples through the democratic process. Id. But prior to then,
same-sex marriage had no place in the countrys history and tradition whatsoever.
Moreover, courts across the country of all sorts including the Supreme Court and
courts governing states that have since adopted same-sex marriage democratically
recognized the lack of any pre-existing fundamental substantive due process right
attendant to it. See, e.g., Baker, 409 U.S. at 810; Jackson, 884 F.Supp.2d at 1094;
Andersen v. King County, 138 P.3d 963, 979 (Wash. 2006); Hernandez v. Robles, 855
N.E. 2d 1, 10 (N.Y. 2006); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006); Dean v.
District of Columbia, 653 A.2d 307, 333 (D.C. 1995); Baker, 191 N.W. 2d at 186.
The right to enter into a same-sex marriage, judged historically or traditionally, is
not and never has been a nationally-recognized and federally-protected
fundamental right.6

Even after Windsor, federal judges at different levels, including within the Fifth
Circuit and elsewhere, have rejected the new fundamental right the Campaign wants to
establish. DeBoer, --- F.3d ---, 2014 WL 5748990 at *16-18 (6th Cir. Nov. 6, 2014); Bostic v.
Schaefer, 760 F.3d 352, 393 (4th Cir. 2014) (Niemeyer, J., dissenting) (At bottom, the

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To avoid the inevitable dead end to which a genuine fundamental right


analysis of same-sex marriage leads, the Campaign eschews the necessity of
carefully describing the new fundamental right its asks this Court to establish.
Page ten of the Campaigns brief pretends a long-existing fundamental right
broadly consisting of the freedom to marry is really at issue, as proven by the
Supreme Courts failures in Loving v. Virginia, 388 U.S. 1 (1967) and Turner v.
Safley, 482 U.S. 78 (1987) to narrowly define the marriage rights they analyzed as
exclusively applicable to opposite-sex couples. But, of course, in 1967 (Loving) and
1987 (Turner) the Court had no need to specify the marital rights at issue only
encompassed opposite-sex marriages. Those were times when marriage between a
man and a woman no doubt [was] thought of . . . as essential to the very definition
of that term. Windsor, 133 S.Ct. at 2689. Claiming that Loving and Turner
contemplated and established an all-inclusive right to marry because the Court
did not specifically exclude same-sex couples from the definition belies the historical
context in which they were decided.7

fundamental right to marriage does not include a right to same-sex marriage.); Bishop v.
Smith, 760 F.3d 1070, 1113 (10th Cir. 2014) (Kelly, J., concurring in part and dissenting in
part) (Removing gender complementarity from the historical definition of marriage is
simply contrary to the careful analysis prescribed by the Supreme Court when it comes to
substantive due process.); Robicheaux v. Caldwell, 2 F.Supp.3d 910, 922 (E.D. La. Sept. 4,
2014) (The Court agrees that Glucksberg requires a careful description, which, here,
means that plaintiffs must specifically assert a fundamental right to same-sex marriage,
meanwhile [t]here is simply no fundamental right, historically or traditionally, to samesex marriage.).
7

The Campaign also fails to account for the fact that five years after deciding
Loving, Baker v. Nelson specifically declined to recognize a fundamental right to same-sex
marriage. 490 U.S. at 810. That confirms Loving did not contemplate an all-encompassing

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The Campaign does not mention another problem with its fundamental
rights argument: a new unlimited fundamental right could eviscerate all state
marriage laws. If state-sanctioned marriage must mean anyone can participate in
it, every Mississippi law prescribing consanguinity or age restrictions, prohibiting
bigamy, or putting any limits on marriage would infringe on the Campaigns newly
proposed right. See, e.g., Miss. Code Ann. 93-1-1(1) (incestuous marriages); 93-15(1) (age requirements for marriage licenses); 97-29-13 (criminal penalties for
bigamy). Only limitations the State can prove valid under strict scrutiny, would
survive.
There is no good reason to depart from the Glucksberg test or otherwise
create a new fundamental right the Campaign proposes. Mississippis traditional
marriage laws are subject to rational basis review, not heightened scrutiny.
2.

Mississippis Traditional Marriage Laws Satisfy Rational Basis


Review.

Rational basis review is no means for courts to second guess legislative


enactments by litigating the facts undergirding their passage. Heller, 509 U.S. at
320 (A state has no obligation to produce evidence to sustain the rationality of a
statutory classification.). Courts conducting rational basis review must presume
the laws in question are valid and sustain them so long as they are rationally
related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., 473

fundamental right to marry for same-sex couples and diminishes the idea any subsequent
opinions like Turner did either.

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U.S. 432, 440 (1985). For that reason, the rational basis test only seeks to
determine whether any conceivable rationale exists for the enactments. FCC v.
Beach Communications, Inc., 508 U.S. 307, 313 (1993) (collecting authorities).
Courts cannot replace legislative predictions or calculations of probabilities
with their own, otherwise they threaten to usurp legislative authority. Heller, 509
U.S. at 319 (rational basis review is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices); Beach Communications, 508 U.S. at 315
(judicial deference to legislative choices preserve[s] to the legislative branch its
rightful independence and its ability to function); LeClerc v. Webb, 419 F.3d 405,
421 (5th Cir. 2005) (the central feature of rational basis review is deference to
legislative policy decisions embodied in courts reluctance to judge the wisdom,
fairness, logic, or desirability of those choices). Laws based on rational
speculation unsupported by evidence or empirical data satisfy rational basis
review. Beach Communications, 508 U.S. at 315. Further, the fact that reasonable
minds can disagree on legislation suffices to show the laws have a rational basis, for
there is no least restrictive means component to the rational basis review. Heller,
509 U.S. at 321 (holding that courts must accept a legislatures generalizations
under rational basis review even when there is an imperfect fit between means and
ends or where the classification is not made with mathematical nicety).
The Campaigns False Impermissible Animus Indictment. As an
initial matter, the Court should discard the Campaigns roundly-discredited theory

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that impermissible animus drove Mississippians to vote against its social cause.
Animus does not ratchet up the rational basis scrutiny applied to Mississippis
laws. At a minimum, the Campaigns unsupportable accusations have two glaring
flaws. For one, the Campaign has a severe proof problem. The motivations driving
Mississippi legislators and the electorates decisions to maintain the States
traditional definition of marriage cannot be measurably attributed to
impermissible animus by evidence. DeBoer, --- F.3d ---, 2014 WL 5748990, at *14
(If assessing the motives of multimember legislatures is difficult, assessing the
motives of all voters in a statewide initiative strains judicial competence (emphasis
in original)). There are any number of legitimate factors which could have
motivated Mississippians to vote for or against retaining the longstanding manwoman definition of marriage. Id. (cataloguing at least seven plausible reasons).
The Campaigns cherry-picked quotes from old newspaper articles and editorials, at
best, tell less than .001% of the story. The motivations of an entire Legislature, or
our States entire electorate cannot be convicted as illegitimate by a few media
reports.
Another defect is the Campaigns proof problems cannot be cured by tethering
its accusations to the distinct circumstances and findings in other rational basis
cases like Romer or Windsor. In both those instances, the Supreme Courts
approach analyzed whether anything but animus could have motivated the laws
in question, concluded animus was the only explanation, and struck down the laws
for that reason combined with others. But, from plenty of authorities decided before
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and after Windsor, we well-know the anything but animus approach does not
condemn state laws dealing with same-sex marriage. DeBoer, --- F.3d ---, 2014 WL
5748990, at *15; Bishop v. Smith, 760 F.3d 1070, 1096-1109 (10th Cir. 2014)
(Holmes, J., concurring); Bruning, 455 F.3d at 868; Robicheaux, 2 F.Supp.3d at 920;
Bourke v. Beshear, 996 F.Supp.2d 542, 550-52 (W.D. Ky. 2014), revd, DeBoer, --F.3d ---, 2014 WL 2014 WL 5748990 (6th Cir. Nov. 6, 2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 1211 (Utah 2013), affd, 755 F.3d 1193 (10th Cir. 2014); Conaway v.
Deane, 932 A.2d 571, 635 (Md. 2007); Hernandez, 855 N.E. 2d at 8; Anderson, 138
P.3d at 981. The Romer/Windsor model for imputing impermissible animus to
Mississippians voting decisions does not work in this context.
The Campaigns newspaper clippings do not prove impermissible animus,
and no valid reason for presuming impermissible animus applies here. The only
remaining matter is the legitimate state interests furthered by Mississippis
traditional marriage laws which, as explained below, easily satisfy rational basis
review.
Promotion of Opposite-Sex Marriage to Encourage Biological Parents
to Establish and Maintain Stable Family Relationships. Undeniably, as a
matter of biology, opposite-sex marriage has a procreative potential that same-sex
marriage lacks. Only one man and one woman can produce a child. And, whether
those biological parents children are planned or unplanned, the State has an
important interest in ensuring the well-being of those children. Offering marriage

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and its benefits to opposite-sex couples encourages unmarried parents to marry and
married parents to remain married, encourages the rearing of children by both their
mother and father, and encourages men to commit to the mothers of their children
and jointly raise them. No matter what descriptive label placed on the rationale,
defining marriage as between a man and woman steers opposite sex couples
potentially procreative conduct into stable and enduring family relationships and
thereby furthers the legitimate state interest of connecting children to stable
families formed by their biological parents.
Opponents of recognizing solely traditional marriage dispute that
incentivizing opposite-sex couples to marry, or remain married, and establish stable
family relationships furthers a legitimate state interest. As the Campaign asserts
at page seventeen of its brief, it is true that some federal judges do not think
encouraging responsible procreation and stable family environments for childrearing provides a rational justification for continuing to define marriage as solely
between one man and one woman. But that is non-dispositive, and only half-true.
The whole truth has two other components. First, the panel (Baskin) and
split-panel decisions (Kitchen and Bostic) supporting the Campaigns rhetoric only
reached their conclusions, explicitly or implicitly, by elevating the level of scrutiny
to justify a new and different analysis, and ultimately, the desired outcome.
Subjecting Mississippis traditional marriage laws to heightened scrutiny would
be entirely inappropriate for all the reasons set forth above in Section I., B., 1. Only
deferential rational basis review applies.
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Second, and more important, the Campaign wrongly suggests that numerous
courts have never found that state same-sex marriage laws satisfy rational basis
review. That is far from true.8 As the Sixth Circuit fully explained just last week,
the responsible procreation (as the Campaign refers to it) explanation
undergirding Michigans, Kentuckys, Ohios, and Tennessees constitutional
prohibitions on recognizing same-sex marriages satisfies rational basis review:
One [legitimate rational basis for the laws] starts from the premise
that governments got into the business of defining marriage, and
remain the business of defining marriage, not to regulate love but to
regulate sex, most especially the intended and unintended effects of
male-female intercourse. Imagine a society without marriage. It does
not take long to envision problems that might result from an absence
8

DeBoer, --- F.3d ---, 2014 WL 5748990, at *9-13; Bruning, 455 F.3d at 867-68
(finding that, in evaluating responsible procreation justification for Nebraskas
constitutional provision defining marriage as between a man and woman, [w]hatever our
personal views regarding this political and sociological debate, we cannot conclude that the
States justification lacks a rational relationship to legitimate state interests.);
Robicheaux, 2 F.Supp.3d at 919 (agreeing that Louisianas constitution and laws
preserving the definition of man/woman marriage serve a central state interest of linking
children to an intact family formed by their biological parents); Jackson, 884 F.Supp.2d at
1114 (opposite-sex couples, who can naturally procreate, advance the interest in
encouraging natural procreation to take place in stable relationships and same-sex couples
do not to the same extent. Thus, Hawaiis marriage laws are reasonably related to this
legitimate state interest. . . . That is all that is required under this highly deferential
review. (internal citations omitted)); Standhardt v. Superior Court, 77 P.3d 451, 462-63
(Az. Ct. App. Div. 1 2003) (The State could reasonably decide that by encouraging
opposite-sex couples to marry, thereby assuming legal and financial obligations, the
children born from such relationships will have better opportunities to be nurtured and
raised by two parents within long-term, committed relationships, which society has
traditionally viewed as advantageous for children.); Andersen, 138 P.3d at 982 ([N]o other
relationship has the potential to create, without third party involvement, a child
biologically related to both parents, and the legislature rationally could decide to limit legal
rights and obligations of marriage to opposite-sex couples.); Hernandez, 855 N.E. 2d at 7
(The Legislature could rationally believe that it is better, other things being equal, for
children to grow up with both a mother and a father. Intuition and experience suggest that
a child benefits from having before his or her eyes, every day, living models of what both a
man and a woman are like.).

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of rules about how to handle the natural effects of male-female


intercourse: children. May men and women follow their procreative
urges wherever they take them? Who is responsible for the children
that result? How many mates may an individual have? How does one
decide which set of mates is responsible for which set of children? That
we rarely think about these questions nowadays shows only how far
we have come and how relatively stable our society is, not that States
have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most
especially a need to create stable family units for the planned and
unplanned creation of children, one can well appreciate why the
citizenry would think that a reasonable first concern of any society is
the need to regulate male-female relationships and the unique
procreative possibilities of them. One way to pursue this objective is to
encourage couples to enter lasting relationships through subsidies and
other benefits and to discourage them from ending such relationships
through these and other means. People may not need the
governments encouragement to have sex. And they may not need the
governments encouragement to propagate the species. But they may
well need the governments encouragement to create and maintain
stable relationships within which children may flourish. It is not
societys laws or for that matter any one religions laws, but natures
laws (that men and women complement each other biologically), that
created the policy imperative. And governments typically are not
second-guessed under the Constitution for prioritizing how they tackle
such issues. Dandridge v. Williams, 397 U.S. 471, 486-87 (1970).
***
What we are left with is this: By creating a status (marriage) and by
subsidizing it (e.g., with tax-filing privileges and deductions), the
States created an incentive for two people who procreate together to
stay together for purposes of rearing offspring. That does not convict
the States of irrationality, only of awareness of the biological reality
that couples of the same sex do not have children in the same way as
couples of opposite sexes and that couples of the same sex do not run
the risk of unintended offspring. That explanation, still relevant
today, suffices to allow the States to retain authority over an issue
they have regulated from the beginning.
DeBoer, --- F.3d ---, 2014 WL 5748990, at *9-10. Mississippis traditional laws

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should be afforded no less deference than its four sister states to the North, or any
others, where encouraging biological parents to establish and maintain stable
family relationships for the benefit of children have been deemed sound reasons for
states maintenance of defining marriage as between one man and one woman.
Exercising Caution and Establishing and Maintaining Social Policy
through Democratic Means. Other rational bases for Mississippis traditional
laws exist in exercising caution and rationally declining to alter the man-woman
definition of marriage understood as the norm for centuries, and the States related
legitimate interest in safeguarding that fundamental social change is better
cultivated through democratic consensus. The two most recently decided federal
court opinions outside and inside the Fifth Circuit confirm those legitimate state
interests are rationally related to preserving the traditional definition of marriage.
See DeBoer, --- F.3d ---, 2014 WL 5748990, at *9-13; Robicheaux, 2 F.Supp.3d at
918-20.
Windsor itself also bolsters these points. Windsor confirmed New York had a
valid right to choose how to best decide the issue of whether or not to adopt samesex marriage. The Court struck down federal DOMAs Section 3 because it usurped
New Yorks historic and essential authority to define the marital relation.
Windsor, 133 S.Ct. at 2692. Approximately two years earlier, New York had
decided to recognize same-sex marriage, and Windsor emphasized that the states
actions were without doubt a proper exercise of [New Yorks] sovereign authority

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within our federal system. Id. At the same time, the Court did not find, or even
intimate, that it would not have been an equally proper exercise of . . . sovereign
authority had New York decided to retain its previous man-woman definition of
marriage as it had until 2011. Any notion that New York could not have rationally
chosen either course would contradict Windsor, which highlighted that [t]he
dynamics of state government in the federal system are to allow the formation of
consensus respecting such a far reaching matter. Id.; see also id. at 2689 (New
York enlarge[d] its marriage definition [a]fter a statewide deliberative process
that enabled its citizens to discuss and weigh arguments for and against same-sex
marriage). Windsor did not set up a paradigm permitting New Yorks citizens to
reach one consensus on marriage, while denying Mississippis citizens the right to
legitimately reach a different one.
Windsor also explained why a state can and may choose to proceed with
caution before recognizing same-sex marriage. States, which have a rightful and
legitimate concern in the marital status of persons domiciled within [their]
borders, id. at 2691, rightly understand[] that marriage is more than a routine
classification for purposes of certain statutory benefits. Id. at 2692. Enlarging the
traditional definition of marriage, Windsor explained, would involve a far-reaching
legal acknowledgment and demand both the communitys considered perspective
on the historical roots of the institution of marriage and its evolving understanding
of the meaning of equality. Id. at 2692-93. The Court was thus keenly aware that

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[t]he responsibility of the States for the regulation of domestic relations is an


important indicator of the substantial social impact the States classifications have
in the daily lives and customs of its people. Id. at 2693. Federal DOMAs Section 3
was an anomaly, and could not stand, because it usurped that traditional state
responsibility. See id. (noting DOMAs unusual deviation from the usual tradition
of recognizing and accepting state definitions of marriage). At the same time,
Windsor confirmed that states are authorized to determine the shape of marriage,
and, whether their citizens decide to shape it as New York did in 2011, or as
Mississippi did in 2004, they act rationally in doing so.
Rational basis review applies to Mississippis traditional marriage laws.
Because they satisfy that test, the Campaign should not be awarded a preliminary
injunction.
II. No Equitable Factors Justify Preliminary Injunctive Relief.
A.

No Immediate Irreparable Harm to the Campaign.


According to the Fifth Circuit, the purpose of granting a preliminary

injunction during the pendency of a lawsuit [is] to prevent irreparable injury that
may result before a final decision on the merits, and that requires that a movant
must prove a substantial threat that he will suffer irreparable harm if the
injunction is not granted. Shanks v. City of Dallas, Texas, 752 F.2d 1092, 1097-98
(5th Cir. 1985) (internal citations omitted). The Campaign couches the alleged
irreparable harms at issue here in terms of legal benefits prohibited to the
individual plaintiffs on account of Mississippis traditional marriage laws and the
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message they think those laws communicate to the public. Those allegations fail to
satisfy the Campaigns heavy burden of establishing that immediate irreparable
harm will occur prior to a final decision on the merits for several reasons.
An important distinction between a claimed harm and irreparable harm
exists when it comes to evaluating preliminary injunctive relief. The Campaigns
articulated harms related to the denial of government benefits may be harms.
However, that does not mean they automatically qualify as irreparable harms that
demand instant preliminary injunctive relief. For example, the Campaign points
out that same-sex couples present inability to file joint tax returns results in a
harm. But, if the Campaign prevails at the end of this litigation, tax returns could
be re-filed or amended. A tax benefit harm is not irreparable in the context of
preliminary injunctive relief.
The Campaigns additional contention that a preliminary injunction
authorizing same-sex marriage will alter any of public-at-larges many possible
different viewpoints on the issue is speculative. Issuing full and final relief on the
merits at the outset of this case to try to remedy any perceived public stigma would
therefore be inappropriate. Cf. Betts v. Rector & Visitors of Univ. of Virginia, 939 F.
Supp. 461, 466 (W.D. Va. 1996) (alleged stigma from denial of admission to medical
school insufficient to warrant preliminary injunction as injunction would not alter
classmates perception).
Finally, even assuming any prohibition of government benefits or a claimed
public stigma are legally irreparable harms, the Campaigns delay in filing this
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lawsuit diminishes them in the context of a need for preliminary injunctive relief.
Unexcused delay on the part of parties seeking an extraordinary preliminary
injunction is grounds for denying relief because such delay implies a lack of
urgency and irreparable harm. Newdow v. Bush, 355 F.Supp.2d 265, 292 (D. D.C.
2005); see also Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 788 (7th Cir.
2011) (the likelihood of irreparable harm takes into account how urgent the need
for equitable relief really is).
The laws challenged by the Campaign here have been in place for more than
ten years. Other plaintiffs around the country have litigated the Campaigns
arguments in suits involving similar laws many times. And, an overwhelming
majority of those cases did not rush to conclusion by way of preliminary injunctive
relief. Furthermore, two appeals involving precisely the same issues have been
pending at the Fifth Circuit for months. The fact that the Campaign waited until
three weeks ago to file this lawsuit belies the claim that immediate irreparable
harms necessitate an award of preliminary injunctive relief.
B.

The Balance of Harms Favors the State


The Campaigns showing on the balance of harms factor also fails to satisfy

its burden. The full and final relief sought in a broad preliminary injunction would
inflict several potential interrelated harms to the State that outweigh the
Campaigns asserted irreparable harm. As with anytime a movant seeks to
overturn state laws with preliminary injunctive relief, the State will suffer the
irreparable harm of denying the public interest in the enforcement of its laws if the
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Court enjoins its traditional marriage laws. Planned Parenthood of Greater Texas
Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (affirming denial
of preliminary injunction). That inherent harm to the State would be particularly
pronounced in these circumstances because not just one or two laws would be
impacted.
The Campaign wants an injunction, as its long list of benefits that could be
implicated by redefining marriage in Mississippi illustrates, that would require
state, county, and local officials to overhaul administrative systems, regulatory
schemes, employment benefits, and likely many other current government
functions. The effort would tremendously burden the State. Requiring an overhaul
by way of a preliminary injunction that is still subject to later dissolution, could
create a tremendous harm. Given the breadth of the Campaigns requested
preliminary injunctive relief, the balance of harms factor justifies denying it even if
the Campaign could prove all the other necessary elements.
C.

Preliminary Injunctive Relief Would Harm the Public Interest


As for the last preliminary injunction factor, on balance, granting the

Campaigns requested preliminary relief would disserve the public interest. The
public has a strong interest in seeing to it that marriages in Mississippi conform
with the States democratically-adopted traditional marriage laws. Assuming this
Court preliminarily determines those laws are unconstitutional (and for the reasons
explained in Section I., above, it should not), a conflicting weighty public interest in
precluding enforcement of unconstitutional laws would arise. However, it would be
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inappropriate to blindly accept that interest as satisfying the public interest


element for preliminary injunctive relief.
Unique circumstances here matter, and the fact is that granting the
Campaigns requested preliminary injunctive relief carries the potential for causing
harms to the public and the parties that could not later be undone. Preliminary
relief is not final relief. If Mississippis traditional marriage laws are enjoined
preliminarily, the individual plaintiffs and other Mississippians might seek
marriage licenses or stake claims to benefits to which they could be entitled.
Subsequently, in the event the preliminary injunctive relief is eventually dissolved
in this Court, or on appeal, at best there would be confusion and at worst there
would be chaos. Licenses may be voided. Benefits could be withdrawn. The
Campaign may have considered those issues and weighed the risks when deciding
to fast-track its case and seeking preliminary injunctive relief. The public did not
have a say in that decision. Meanwhile, the publics interest could undoubtedly be
harmed if this Court decides to grant the Campaigns motion.
None of the equitable factors that must be proven for preliminary injunctive
relief weigh in the Campaigns favor. Even if the Campaign has a substantial
likelihood of success on the merits of its claims, its requested preliminary injunctive
relief should be denied.
CONCLUSION
For all the foregoing reasons, the Court should find the Campaign has failed
to carry the burden of proving the four required elements for preliminary injunctive
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relief and deny its motion in its entirety.


THIS the 10th day of November, 2014.
Respectfully submitted,
PHIL BRYANT, in his official capacity as
Governor of the State of Mississippi, and
JIM HOOD, in his official capacity as
Mississippi Attorney General
BY:

JIM HOOD, ATTORNEY GENERAL

By:

S/Justin L. Matheny
Justin L. Matheny (Bar No. 100754)
Paul E. Barnes (Bar No. 99107)
Office of the Mississippi Attorney General
P.O. Box 220
Jackson, MS 39202
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
pbarn@ago.state.ms.us
Counsel for Defendants Phil Bryant, in his
official capacity as Governor of the State of
Mississippi, and Jim Hood, in his official
capacity as Mississippi Attorney General

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been filed electronically with the Clerk of Court using the Courts ECF system and
thereby served on all counsel of record who have entered their appearance in this
action.
THIS the 10th day of November, 2014.
S/Justin L. Matheny
Justin L. Matheny

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