15-10295 Alabama Motion For Stay Pending Appeal

Case: 15-10295
Date Filed: 01/26/2015
Page: 1 of 17
No. 15-10295-C
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
Luther Strange, Attorney General,

Defendant-Appellant,
v.
Cari D. Searcy, et al.,
Plaintiffs-Appellees.
On appeal from the United States District Court

for the Southern District of Alabama
Case No. 1:14-cv-208-CG-N
APPELLANTS TIME-SENSITIVE MOTION TO STAY

(RULING REQUESTED BEFORE FEB. 9, 2015)
Luther Strange
Attorney General
Andrew L. Brasher*
Solicitor General
James W. Davis
Laura Howell
Assistant Attorneys General
OFFICE OF THE ALABAMA ATTORNEY

GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 353-2609
(334) 353-8440 (fax)
abrasher@ago.state.al.us
January 26, 2015
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Strange v. Searcy
Appeal No. 15-10295-C
CERTIFICATE OF INTERESTED PERSONS

Appellant Luther Strange, Attorney General, pursuant to 11th Cir. R.
26.1-1, certifies that the following persons have an interest in the outcome of this
case and/or appeal:
1.
Brasher, Andrew L., Solicitor General
2.
Davis, James W., Assistant Attorney General
3.
Granade, Hon. Callie V. S., United States District Judge
4.
Hernandez, Christine C., attorney for plaintiffs
5.
Howell, Laura E., Assistant Attorney General
6.
Kennedy, David G., attorney for plaintiffs
7.
McKeand, Kimberly, plaintiff
8.
Searcy, Cari D., plaintiff
9.
Strange, Luther, Attorney General
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
Counsel for the Appellant
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TIME-SENSITIVE MOTION TO STAY

Alabama Attorney General Luther Strange has appealed from the District
Courts Order and Judgment (Exhibit A), which declared Alabamas marriage
laws to be unconstitutional to the extent they do not recognize same-sex marriages.
Pursuant to Rule 8(a) of the Federal Rules of Appellate Procedure, the Attorney
General moves for a stay of the District Courts Order and Judgment during the
pendency of this appeal.
We are mindful that a Panel of this Court recently denied a stay application
presented by the State of Florida in a similar case. See the Brenner and Grimsley
appeals, Appeal Nos. 14-14061-AA and 14-14066-AA. But the judgment at issue
in that case had already been stayed by the district court for several months, so
state and local officials had time to prepare.
And Floridas request for an
additional stay came before the Supreme Court agreed to rule on whether states are
required to recognize same-sex marriage by granting certiorari in four cases from
the Sixth Circuit. See James v. Hodges, Supreme Court No. 14-556, Order dated
January 16, 2015; see also cases 14-562, 14-571, and 14-574. In other words, the
Panel denied Floridas request for a stay before we knew the Supreme Court would
decide the issue. Now, unlike then, we know that the Supreme Court will tell us,
within six months, whether states must recognize same-sex marriages. If the
Constitution requires same-sex marriage, the stay will be a very short one.
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In the meantime, the Attorney General seeks a stay for two principal
reasons. First, a stay would avoid the chaos and confusion that will result if samesex marriages are temporarily legal in Alabama, but are later determined not to be
so. Second, a stay will avoid the confusion and additional litigation that will result
in light of the procedural posture of this case. There are several same-sex marriage
cases pending in Alabamas other district courts and those judges, including other
judges in the district court at issue here, are not bound by the lower courts
decision in this case. Moreover, because the local officials who perform marriages
and issue marriage licenses in Alabama are not parties to this case, additional
litigation is certain to occur if the judgment is not stayed. The District Court
expressly recognized that [t]he questions raised in this lawsuit will . . . be
definitively decided by the end of the current Supreme Court term, regardless of
todays holding by this court. Doc. 53 at 6 n.1. It makes sense to stay the lower
courts decision until the U.S. Supreme Court or this Court issues a final decision
that is binding on all lower courts and controlling to all state officials.
The lower court entered a temporary 14-day stay to allow the Attorney
General to seek a longer stay in this Court. That stay expires on February 9, 2015
if no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the
stay.
Accordingly, we respectfully request a ruling on this motion before
February 9, 2015.
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Procedural Background
Alabama law defines marriage as existing only between two people of the
opposite sex, and expressly declines to recognize same-sex marriage. ALA.
CONST. ART. I, 36.03 (2006); ALA. CODE 1975 30-1-19. The 2006
Constitutional Amendment and the statute from the 1990s are relatively recent,
but prior Alabama law, even though it did not expressly require an opposite-sex
relationship, nonetheless was limited to opposite-sex couplings, based on the
definition of marriage recognized throughout the world for millennia. See
Atty.Gen. Op. No. 83-206 (doc. 49-1) (opining that under prior statutes, it was not
possible for two persons of the same sex to marry in Alabama).
Plaintiffs filed suit to challenge those laws on Equal Protection and Due
Process grounds. (Doc. 1). Plaintiffs and Defendant filed cross-motions for
summary judgment. (Docs. 21, 22, 47, 48, 51, 52). On January 23, 2015, the
District Court granted Plaintiffs motion and denied Defendants motion, entering
equitable relief declaring that Alabamas marriage laws are unconstitutional and
enjoining Attorney General Strange from enforcing those laws. In its 10-page
order, the District Court noted that the Supreme Court had granted certiorari on
whether the Constitution requires states to recognize same-sex marriage.
It
explained that [t]he questions raised in this lawsuit will thus be definitively
decided by the end of the current Supreme Court term, regardless of todays
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holding by this court. Doc. 53 at 6 n.1. The Memorandum and Order is attached
to this motion as Exhibit A.
Attorney General Strange moved for a stay of the District Courts judgment
on January 23, 2015, the same date it was entered. (Doc. 55). On Sunday, January
25, 2015, the District Court denied the Attorney Generals motion in part and
granted it in part. The District Court declined to stay its order pending the U.S.
Supreme Courts resolution of the same-sex marriage issue. But the District Court
entered a short stay of 14 days to allow the Attorney General time to present his
arguments to the Eleventh Circuit so that the appeals court can decide whether to
dissolve or continue the stay pending appeal. Doc. 59 at 5. This Order is attached
to this motion as Exhibit B.
Attorney General Strange appealed the District Courts judgment on January
26, 2015. The Notice of Appeal is attached to this motion as Exhibit C.
Jurisdiction
The Attorney General filed a timely notice of appeal on January 26, 2015.
See Ex. C. This Court has jurisdiction under 28 U.S.C. 1292(a), because the
District Court entered a final judgment and granted injunctive relief. This Court
has the authority to consider this motion under Federal Rule of Appellate
Procedure 8(a)(2)(A)(ii). This motion requests the same relief that the District
Court already denied.
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Argument
The issue on appeal is a serious one, and it deserves the review of a higher
court before the injunction becomes effective. The plaintiffs contend that the
Fourteenth Amendment requires states to recognize same-sex marriage; the
Attorney General disagrees. Several Circuits (two with divided panels) recently
held that the plaintiffs view is correct. See DeBoer v. Snyder, ___ F.3d ___, 2014
WL 5748990 *7 (6th Cir. Nov. 6, 2014) (collecting cases). More recently, the
Sixth Circuit (also with a divided panel) held that the Attorney Generals view is
correct. See generally id. Other Circuits, including the Fifth Circuit and this Court,
have not ruled on this issue. See DeLeon v. Perry, Case No. 14-50196 (5th Cir.),
Brenner v. Secy, Fla. Dept of Health, Appeal No. 14-14061-AA (11th Cir.),
Grimsley v. Secy Dept of Health, Appeal No. 14-14066-AA (11th Cir.). And, as
the District Court expressly recognized, the U.S. Supreme Court will resolve this
issue by the end of this current Term.
Whether a stay is appropriate depends on the circumstances of the
particular case. Nken v. Holder, 556 U.S. 418, 433, 129 S. Ct. 1749, 1760 (2009)
(internal quotation and citation omitted). There are four factors to be considered:
(1) the likelihood of prevailing on the merits on appeal; (2) irreparable harm to the
movant if no stay is granted; (3) harm to the adverse parties if a stay is granted; and
(4) the public interest. See Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.
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1986); see also Nken, 556 U.S. at 434, 129 S. Ct. at 1761. Each factor weighs in
favor of granting a stay.
A. Attorney General Strange is likely to prevail on the merits of his appeal.
The Constitution is silent on the issue of marriage and how states may define
it. The District Court nonetheless agreed with several other courts and held that the
Constitution requires Alabama to adopt a new definition of marriage that does not
require sexual complementarity.
The District Courts judgment is due to be reversed. As the Sixth Circuit
held in DeBoer, [n]ot one of the plaintiffs theories makes the case for
constitutionalizing the definition of marriage and for removing the issue from the
place it has been since the founding: in the hand of state voters. 2014 WL
5748990 *8. In particular, and without limitation, the District Courts opinion
made the following errors:
Failure to follow Supreme Court precedent. In Baker v. Nelson, the
Supreme Court dismissed, for failure to present a substantial federal question, an
appeal which raised the same issues this case presents. 409 U.S. 810, 93 S. Ct. 37
(1972). The District Court concluded that it need not follow that binding precedent
because of so-called doctrinal developments. (Doc. 53). Lower courts, however,
are not free to decide that the Supreme Court might decide a case differently today,
any more than district courts are free to disregard an opinion from this Court.
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Baker remains good law. As the Sixth Circuit held, when finding that Baker
controlled the issue:
Only the Supreme Court may overrule its own precedents, and we
remain bound even by its summary decisions until such time as the
Court informs [us] that [we] are not. Hicks v. Miranda, 422 U.S. 332,
345 (1975) (internal quotation marks omitted). The Court has yet to
inform us that we are not, and we have no license to engage in a
guessing game about whether the Court will change its mind or, more
aggressively, to assume authority to overrule Baker ourselves.
DeBoer, 2014 WL 5748990 at *5.
Failure to acknowledge that the parties presented opposing definitions
of marriage. The District Court appeared to conclude that the Plaintiffs
relationship is a marriage but for an arbitrary restriction in Alabama law.
However, Defendant presented evidence that in fact, for as long as marriage has
existed and up until the 21st Century, marriage has by definition been an oppositesex union. See Doc. 49 (expert report of Sherif Girgis). These opposite-sex unions,
or conjugal marriages, have been thought over all times and cultures to have
unique and distinctive value. Many other human relationships have value too, and
have their own dignity, but they are not marriages and have not been recognized
as such. Alabama law therefore does not draw a line with opposite-sex couples on
one side and same-sex couples on the other, and does not discriminate on the basis
of sexual orientation at all. Rather, Alabama law distinguishes between marriage
and non-marriage. Therefore, to require Alabama to recognize Plaintiffs
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relationship as a marriage is not to include Plaintiffs in an existing institution,

but to alter that institution and give it a new definition. Obviously there are wide
disagreements on the wisdom of making that definitional change, but a change it
would be.
Defining the right plaintiffs seek as the fundamental right to
marriage. Because of the failure to recognize that the parties define marriage
differently, the District Court held that the Plaintiffs seek the fundamental right
to marry. Once the right is carefully described, though, it becomes clear that
Plaintiffs seek not the straight-forward right to marry, but the new right to marry
someone of the same gender. See Washington v. Glucksberg, 521 U.S. 702, 723,
117 S. Ct. 2258, 2269 (1997) (rejecting right to die as an insufficiently precise
description of the right at issue, and instead defining the right as the right to
commit suicide which itself includes assistance in doing so.). This right to
same-sex marriage is not deeply rooted in this Nations history and tradition, a
prerequisite to a holding that a right is fundamental and subject to heightened
scrutiny. Rather, as Justice Kennedy explained in Windsor, until very recent years
marriage between a man and a woman no doubt had been thought of by most
people as essential to the very definition of that term and to its role and function
throughout the history of civilization. United States v. Windsor, 133 S. Ct. 2675,
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2689 (2013). Because plaintiffs seek a new right, the District Court should have
applied the rational basis test to Alabamas marriage laws.
Failure to acknowledge the evidence presented by the Defendant.
Defendant contended that Alabamas marriage laws promote the state interest of
linking children to their biological parents: That in most cases, the persons best
suited to rear a child is his or her biological parents, and that by encouraging
parents and potential parents to marry, Alabama law in fact promotes that
connection, both to the biological parents and extended kin. The District Courts
opinion held that Defendant did not provide evidence supporting this claim, but
that is incorrect. Defendant presented evidence that marriage is regulated and
promoted not to support the emotional needs of adults, but with an eye toward the
needs of children. See Doc. 49 at 8. He showed that all else being equal, and in
most cases, the best situation for children is to be raised by his or her biological
parents, and that even a study cited by Plaintiffs expert witness concluded that
[C]hildren appear most apt to succeed well as adults on multiple counts and
across a variety of domains when they spend their entire childhood with their
married mother and father. See Doc. 52 at 8-11. Defendant further presented
evidence that it is rational to be concerned that if marriage is redefined so that its
focus is on meeting the emotional needs of adults, and if the view of the law is that
mothers and fathers are fungible (and can be replaced with another adult of any
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gender with no harm to the child), then parents and potential parents may be less
likely to become married or to stay married. (Doc. 49; Doc. 48 at 20-31; Doc. 52 at
6-11).
As the Sixth Circuit held, [a] dose of humility makes us hesitant to
condemn as unconstitutionally irrational a view of marriage shared not long ago by
every society in the world, shared by most, if not all, of our ancestors, and shared
still today by a significant number of the States. DeBoer, 2014 WL 5748990 at
*9. That court was persuaded that a rational basis exists for the conjugal view of
marriage:
By creating a status (marriage) and by subsidizing it (e.g., with taxfiling 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.
Id. at *11. And the court recognized the legitimacy of encouraging an environment
that will be good for children:
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
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typically are not second-guessed under the Constitution for

prioritizing how they tackle such issues.
Id. at *10.
Regardless of this Courts consideration of the merits, however, the Attorney
General remains entitled to a stay. When, as here, there is a serious legal
question involved, Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A June 1981),
and the balance of the equities identified in the other factors weighs heavily in
favor of granting the stay, the stay may issue upon a lesser showing of a
substantial case on the merits. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th
Cir. 1986) (internal quotations, brackets, and citations omitted). As shown below,
the equities in this case in fact weigh heavily in favor of a stay.
B. The State and the public interest will suffer irreparable harm if the stay
is not granted.
If the action is not stayed, the Attorney General, in his official capacity, will
suffer irreparable harm in three ways. First, [a]ny time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it suffers a
form of irreparable injury. Maryland v. King, 567 U. S. 1, 3 (2012) (Roberts, C.
J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Second, marriages could be
recognized that are ultimately determined to be inconsistent with Alabama law,
resulting in confusion in the law and in the legal status of marriages. Third, the
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Attorney General of Alabama the only official enjoined by the District Court
does not issue marriage licenses, perform marriage ceremonies, or issue adoption
certificates. There is, therefore, a surety that there will be other litigation against
other non-parties, such as county officials and probate judges, if the courts order is
not stayed. A stay would serve the public interest by avoiding confusion among
local officials and additional litigation in Alabamas other district courts. The law
on this issue can only be settled by a ruling from an appellate court or the U.S.
Supreme Court that is binding on all district court judges and state officials.
These factors have led other courts to issue stays in similar circumstances.
The orders reviewed (and reversed) by the Sixth Circuit, for example, were stayed
while they were on appeal. See Tanco v. Haslam, Case No. 14-5297 (mem. order)
(6th Cir. Apr. 25, 2014) (granting stay pending appeal in Tennessee case after
district court denied stay; finding that public interest requires granting a stay in
light of hotly contested issue in the contemporary legal landscape and possible
confusion, cost, and inequity if State ultimately successful) (following and quoting
Henry v. Himes, No. 1:14-cv-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16,
2014)); DeBoer v. Snyder, No. 14-1341 (mem. order) (6th Cir. Mar. 25, 2014)
(Michigan case); Love v. Beshear, 989 F. Supp. 2d 536, 550 (W.D. Ky. 2014);
Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. 2014) (One judge may
decide a case, but ultimately others have a final say . . . . It is best that these
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momentous changes occur upon full review, rather than risk premature
implementation or confusing changes.). The Fifth Circuit is considering the issue
as well, and a stay remains in place there, too. See DeLeon v. Perry, 975 F. Supp.
2d 632, 666 (W.D. Tex. 2014). The public interest rationale that justified these
stays applies with equal force here.
The public interest also weighs strongly in favor of a stay because the U.S.
Supreme Court has already decided to resolve this issue by the end of June. There
is nothing to be gained from the confusion and litigation that will occur (without a
stay) in the intervening six months. The wise use of judicial resources militates
strongly in favor of granting a stay.
C. The Plaintiffs will not suffer harm if the Court enters a stay to preserve
the status quo during the pendency of this appeal.
There was no evidence in the District Court of any immediacy to Plaintiffs
claims. There was no preliminary injunction motion, nor is there any event or
circumstance that would require a ruling now as opposed to six months from now.
Granting a stay will not harm the Plaintiffs, but would only maintain the status quo
while these issues are considered by the appellate courts. As everyone knows, and
the District Court admitted, the questions raised in this lawsuit will thus be
definitively decided by the end of the current Supreme Court term, regardless of
todays holding by this court. Doc. 53 at 6 n.1. It will not harm the plaintiffs to
wait six months for the Supreme Court to rule.
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CONCLUSION
For the foregoing reasons, the Attorney General respectfully requests that
this Court rule on this motion before February 9, 2015 and enter an order staying
the Memorandum Opinion and Judgment during the pendency of the appeal or
until further order of this Court or the U.S. Supreme Court.
Respectfully submitted,
LUTHER STRANGE (ASB-0036-G42L)
ATTORNEY GENERAL
BY:
Andrew L. Brasher
Solicitor General
James W. Davis
Laura E. Howell
Attorneys for the Appellant
OF COUNSEL:
Office of the Attorney General
Montgomery, AL 36130
(334) 353-2609
(334) 353-8440 Fax
Email:
abrasher@ago.state.al.us
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 26th day of January, 2015, I served a copy
of the foregoing upon the following by electronic mail and U.S. Mail:
Christine C. Hernandez
P. O. Box 66174
Mobile, AL 36660
Telephone: (251) 479-1477
christine@hernandezlaw.comcastbiz.net
David G. Kennedy
P. O. Box 556
Mobile, AL 36601
Telephone (251) 338-9805
david@kennedylawyers.com
Andrew L. Brasher
Of Counsel
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Exhibit A
Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 1 of 10

Case: 15-10295 Date Filed: 01/26/2015 Page: 2 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY and KIMBERLY
MCKEAND, individually and as
parent and next friend of K.S., a
minor,
vs.
Plaintiffs,
LUTHER STRANGE, in his capacity

as Attorney General for the State of
Alabama,
Defendant.
)
)
)
)
)
)
) CIVIL ACTION NO. 14-0208-CG-N
)
)
)
)
)
)
MEMORANUM OPINION AND ORDER

This case challenges the constitutionality of the State of Alabamas Alabama
Sanctity of Marriage Amendment and the Alabama Marriage Protection Act. It is
before the Court on cross motions for summary judgment (Docs. 21, 22, 47 & 48).
For the reasons explained below, the Court finds the challenged laws to be
unconstitutional on Equal Protection and Due Process Grounds.
I. Facts
This case is brought by a same-sex couple, Cari Searcy and Kimberly
McKeand, who were legally married in California under that states laws. The
Plaintiffs want Searcy to be able to adopt McKeands 8-year-old biological son, K.S.,
under a provision of Alabamas adoption code that allows a person to adopt her
spouses child. ALA. CODE 26-10A-27. Searcy filed a petition in the Probate Court
of Mobile County seeking to adopt K.S. on December 29, 2011, but that petition was
denied based on the Alabama Sanctity of Marriage Amendment and the Alabama

Marriage Protection Act. (Doc. 22-6). The Alabama Sanctity of Marriage

Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity
of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a
woman. As a matter of public policy, this state has a special interest in
encouraging, supporting, and protecting this unique relationship in
order to promote, among other goals, the stability and welfare of
society and its children. A marriage contracted between individuals of
the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a
woman, which, when the legal capacity and consent of both parties is
present, establishes their relationship as husband and wife, and which
is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to
parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of
parties of the same sex that occurred or was alleged to have occurred
as a result of the law of any jurisdiction regardless of whether a
marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law
marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex
in the State of Alabama or in any other jurisdiction shall be considered
and treated in all respects as having no legal force or effect in this
state and shall not be recognized by this state as a marriage or other
union replicating marriage.
ALA. CONST. ART. I, 36.03 (2006).
The Alabama Marriage Protection Act provides:
(a) This section shall be known and may be cited as the Alabama
Marriage Protection Act.
(b) Marriage is inherently a unique relationship between a man and a
woman. As a matter of public policy, this state has a special interest in
encouraging, supporting, and protecting the unique relationship in
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order to promote, among other goals, the stability and welfare of

society and its children. A marriage contracted between individuals of
the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a
woman, which, when the legal capacity and consent of both parties is
present, establishes their relationship as husband and wife, and which
is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to
parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of
parties of the same sex that occurred or was alleged to have occurred
as a result of the law of any jurisdiction regardless of whether a
marriage license was issued.
ALA. CODE 30-1-19. Because Alabama does not recognize Plaintiffs marriage,
Searcy does not qualify as a spouse for adoption purposes. Searcy appealed the
denial of her adoption petition and the Alabama Court of Civil Appeals affirmed the
decision of the probate court. (Doc. 22-7).
II. Discussion
There is no dispute that the court has jurisdiction over the issues raised
herein, which are clearly constitutional federal claims. This court has jurisdiction
over constitutional challenges to state laws because such challenges are federal
questions. 28 U.S.C. 1331.
Summary judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P 56(a). Because the parties do not dispute the pertinent
facts or that they present purely legal issues, the court turns to the merits.
Plaintiffs contend that the Sanctity of Marriage Amendment and the Alabama
Marriage Protection Act violate the Constitutions Full Faith and Credit clause and
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the Equal Protection and Due Process clauses of the Fourteenth Amendment.
Alabamas Attorney General, Luther Strange, contends that Baker v. Nelson, 409
U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling in this case. In Baker, the
United States Supreme Court summarily dismissed for want of substantial federal
question an appeal from the Minnesota Supreme Court, which upheld a ban on
same-sex marriage. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn.1971),
appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota
Supreme Court 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 to the United States Constitution. Baker, 191 N.W.2d at 18586.
However, Supreme Court decisions since Baker reflect significant doctrinal
developments concerning the constitutionality of prohibiting same-sex
relationships. See Kitchen v. Herbert, 755 F.3d 1193, 120405 (10th Cir. 2014). As
the Tenth Circuit noted in Kitchen, [t]wo landmark decisions by the Supreme
Court, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003),
and United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), have
undermined the notion that the question presented in Baker is insubstantial. 755
F.3d at 1205. Lawrence held that the government could not lawfully demean
[homosexuals'] existence or control their destiny by making their private sexual
conduct a crime. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. In Windsor, the
Supreme Court struck down the federal definition of marriage as being between a
man and a woman because, when applied to legally married same-sex couples, it
demean[ed] the couple, whose moral and sexual choices the Constitution protects.
4

Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of
the United States Court of Appeals for the Second Circuit, which expressly held that
Baker did not foreclose review of the federal marriage definition. Windsor v. United
States, 699 F.3d 169, 17880 (2d Cir.2012) (Even if Baker might have had
resonance ... in 1971, it does not today.).
Although the Eleventh Circuit Court of Appeals has not yet determined the
issue, several federal courts of appeals that have considered Baker's impact in the
wake of Lawrence and Windsor have concluded that Baker does not bar a federal
court from considering the constitutionality of a state's ban on same-sex marriage.
See, e.g., Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen, 755 F.3d 1193
(10th Cir.2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766
F.3d 648 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). Numerous
lower federal courts also have questioned whether Baker serves as binding precedent
following the Supreme Court's decision in Windsor. This Court has the benefit of
reviewing the decisions of all of these other courts. [A] significant majority of courts
have found that Baker is no longer controlling in light of the doctrinal developments
of the last 40 years. Jernigan v. Crane, 2014 WL 6685391, *13 (E.D. Ark. 2014)
(citing Rosenbrahn v. Daugaard, 2014 WL 6386903, at *67 n. 5 (D.S.D. Nov.14,
2014) (collecting cases that have called Baker into doubt)). The Court notes that the
Sixth Circuit recently concluded that Baker is still binding precedent in DeBoer v.
Snyder, 772 F.3d 388 (6th Cir. 2014), but finds the reasoning of the Fourth, Seventh,
Ninth, and Tenth Circuits to be more persuasive on the question and concludes that

Baker does not preclude consideration of the questions presented herein.1 Thus, the
Court first addresses the merits of Plaintiffs Due Process and Equal Protection
claims, as those claims provide the most appropriate analytical framework. And if
equal protection analysis decides this case, there is no need to address the Full Faith
and Credit claim.
Rational basis review applies to an equal protection analysis unless Alabamas
laws affect a suspect class of individuals or significantly interfere with a
fundamental right. Zablocki v. Redhail, 434 U.S. 374, 388, 98S.Ct. 673, 54 L.Ed.2d
618 (1978). Although a strong argument can be made that classification based on
sexual orientation is suspect, Eleventh Circuit precedence holds that such
classification is not suspect. Lofton v. Secretary of Dept. of Children and Family
Services, 358 F.3d 804, 818 (11th Cir. 2004)/ The post-Windsor landscape may
ultimately change the view expressed in Lofton, however no clear majority of
Justices in Windsor stated that sexual orientation was a suspect category.
Laws that implicate fundamental rights are subject to strict scrutiny and will
survive constitutional analysis only if narrowly tailored to a compelling government
interest. Reno v. Flores, 507 U.S. 292, 30102, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
Careful review of the parties briefs and the substantial case law on the subject
persuades the Court that the institution of marriage itself is a fundamental right
This court also notes that the Supreme Court has granted certiorari in the DeBoer
case, Bourke v. Bashear , __ S.Ct.__, 2015 WL 213651 (U.S. January 16, 2015),
limiting review to these two questions: 1) Does the 14th Amendment require a state
to license a marriage between two people of the same sex? and 2) Does the 14th
Amendment require a state to recognize a marriage between two people of the same
sex when their marriage was lawfully licensed and performed out-of-state? The
questions raised in this lawsuit will thus be definitively decided by the end of the
current Supreme Court term, regardless of todays holding by this court.
1

protected by the Constitution, and that the State must therefore convince the Court
that its laws restricting the fundamental right to marry serve a compelling state
interest.
The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men and women. Loving
v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Numerous cases
have recognized marriage as a fundamental right, describing it as a right of liberty,
Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy,
Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),
and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d
473 (1996). These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. Planned Parenthood
of SE Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
Under both the Due Process and Equal Protection Clauses, interference with
a fundamental right warrants the application of strict scrutiny. Bostic v. Schaefer,
760 F.3d 352, 375(4th Cir. 2014). Strict scrutiny entail[s] a most searching
examination and requires the most exact connection between justification and
classification. Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257
(2003) (internal quotations omitted). Under this standard, the defendant cannot
rest upon a generalized assertion as to the classification's relevance to its goals.
Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854
(1989). The purpose of the narrow tailoring requirement is to ensure that the
7

means chosen fit the compelling goal so closely that there is little or no possibility
that the motive for the classification was illegitimate. Grutter v. Bollinger, 539 U.S.
306, 333, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).
Defendant contends that Alabama has a legitimate interest in protecting the
ties between children and their biological parents and other biological kin.2
However, the Court finds that the laws in question are not narrowly tailored to fulfill
the reported interest. The Attorney General does not explain how allowing or
recognizing same-sex marriage between two consenting adults will prevent
heterosexual parents or other biological kin from caring for their biological children.
He proffers no justification for why it is that the provisions in question single out
same-sex couples and prohibit them, and them alone, from marrying in order to meet
that goal. Alabama does not exclude from marriage any other couples who are either
unwilling or unable to biologically procreate. There is no law prohibiting infertile
couples, elderly couples, or couples who do not wish to procreate from marrying. Nor
does the state prohibit recognition of marriages between such couples from other
states. The Attorney General fails to demonstrate any rational, much less
Although Defendant seems to hang his hat on the biological parent-child bond
argument, Defendant hints that this is one of many state interests justifying the
laws in question and some of his arguments could be construed to assert additional
state interests that have commonly been proffered in similar cases. The court finds
that these other interests also do not constitute compelling state interests. See
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (finding that the following interests
neither individually nor collectively constitute a compelling state interest for
recognizing same-sex marriages: (1) the States federalism-based interest in
maintaining control over the definition of marriage within its borders, (2) the history
and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4)
encouraging responsible procreation, and (5) promoting the optimal childrearing
environment.).
2

compelling, link between its prohibition and non-recognition of same-sex marriage

and its goal of having more children raised in the biological family structure the
state wishes to promote. There has been no evidence presented that these marriage
laws have any effect on the choices of couples to have or raise children, whether they
are same-sex couples or opposite-sex couples. In sum, the laws in question are an
irrational way of promoting biological relationships in Alabama. Kitchen, 755 F.3d
at 1222 (As between non-procreative opposite-sex couples and same-sex couples, we
can discern no meaningful distinction with respect to appellants interest in fostering
biological reproduction within marriages.).
If anything, Alabamas prohibition of same-sex marriage detracts from its goal
of promoting optimal environments for children. Those children currently being
raised by same-sex parents in Alabama are just as worthy of protection and
recognition by the State as are the children being raised by opposite-sex parents.
Yet Alabamas Sanctity laws harms the children of same-sex couples for the same
reasons that the Supreme Court found that the Defense of Marriage Act harmed the
children of same-sex couples. Such a law humiliates [ ] thousands of children now
being raised by same-sex couples. The law in question makes it even more difficult
for the children to understand the integrity and closeness of their own family and its
concord with other families in their community and in their daily lives. Windsor,
133 S.Ct. at 2694. Alabamas prohibition and non-recognition of same-sex marriage
also brings financial harm to children of same-sex couples. id. at 2695, because it
denies the families of these children a panoply of benefits that the State and the
federal government offer to families who are legally wed. Additionally, these laws
9

further injures those children of all couples who are themselves gay or lesbian, and
who will grow up knowing that Alabama does not believe they are as capable of
creating a family as their heterosexual friends.
For all of these reasons, the court finds that Alabamas marriage laws violate
the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution.
III. Conclusion
For the reasons stated above, Plaintiffs motion for summary judgment (Doc.
21), is GRANTED and Defendants motion for summary judgment (Docs. 47), is
DENIED.
IT IS FURTHER ORDERED that ALA. CONST. ART. I, 36.03 (2006) and
ALA. CODE 1975 30-1-19 are unconstitutional because they violate they Due Process
Clause and the Equal Protection Clause of the Fourteenth Amendment.
IT IS FURTHER ORDERED that the defendant is enjoined from enforcing
those laws.
DONE and ORDERED this 23rd day of January, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
10


SOUTHERN DIVISION
minor,
vs.
Plaintiffs,

Alabama,
Defendant.
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JUDGMENT
In accordance with the courts order entered this date, it is
ORDERED, ADJUDGED and DECREED that JUDGMENT be and is
hereby entered in favor plaintiffs, Cari D. Searcy and Kimberly McKeand and
against defendant, Luther Strange, in his capacity as Attorney General for
the State of Alabama.
ALA. CONST. ART. I, 36.03 (2006) and ALA. CODE 1975 30-1-19 are
hereby DECLARED to be unconstitutional because they violate they Due
Process Clause and the Equal Protection Clause of the Fourteenth
Amendment. The defendant Luther Strange, in his capacity as Attorney
General for the State of Alabama, is hereby ENJOINED from enforcing
those laws. Costs are to be taxed against the defendant.
DONE and ORDERED this 23rd day of January, 2015.
Case: 15-10295
Page: 1 of 7
Exhibit B


SOUTHERN DIVISION
minor,
vs.
Plaintiffs,

Alabama,
Defendant.
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ORDER
On January 23, 2015, the court granted summary judgment for
plaintiffs in this lawsuit and declared that Alabamas laws prohibiting samesex marriage and prohibiting recognition of same-sex marriages performed
legally in other states are unconstitutional (Docs 53-54). The Attorney
General has now moved for a stay of the order enjoining him from enforcing
those laws pending a ruling by the Supreme Court on other similar cases
(Doc. 56). The plaintiffs oppose that request and seek further clarification of
the injunction issued herein (Doc 56).
Rule 62(c) of the Federal Rules of Civil Procedure provides: While an
appeal is pending from a[ ] . . . final judgment that grants . . . an injunction,
the court may suspend, modify, restore, or grant an injunction ... on terms
that secure the opposing party's rights. Fed.R.Civ.P. 62(c). In this case there

has been no notice of appeal filed, and from his motion, it appears that the
Attorney Generals intention is simply to await the ruling of the Supreme
Court in four similar cases that were recently granted certiorari. See James
v. Hodges, Supreme Court No. 14-556, Order dated January 16, 2015; see
also cases 14-562, 14-571 and 14-574. The motion for a stay cited Rule 62
and other applicable law as the basis for his request for a stay. Because he
does not identify what other law may apply, the court applies the factors to
be considered when a motion for stay pending appeal is filed:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
1. The Attorney General Has Not Shown that He Is Likely to Succeed
on Appeal
The Attorney General seems to concede that he cannot make such
showing because his argument on this point simply refers to the arguments
he made in connection with his motion for summary judgment, which the
court has rejected. He further contends that because this case involves a
serious legal question, the balance of the equities identified by the other
factors weighs heavily in favor of granting the stay, and the stay may issue
upon a lesser showing of a substantial case on the merits. Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).

Plaintiffs argues that recent actions by the Supreme Court indicate

that it no longer views the possible risk of reversal of the validity of same-sex
marriage cases to be a basis to stay an injunction. Plaintiffs points out that
the Supreme Court recently denied certiorari from three circuit courts of
appeals striking down marriage exclusions in four states, thus dissolving the
stays in those cases and leaving those circuit court decisions as binding
precedent to overturn marriage exclusions in eleven states.
Moreover, the
Supreme Court denied stays in similar marriage cases in which appeals were
still pending, by denying Idahos application for stay pending a petition for
certiorari, Otter v. Latta, ___U.S. ___, 135 S.Ct. 345 (2014), and Alaskas
application for a stay pending appeal, Parnell v. Hamby, ___ U.S. ___, 135
S.Ct. 399 (2014). Additionally, the Eleventh Circuit Court of Appeals
recently denied a motion to stay pending appeal in the Northern District of
Florida case overturning a ban on same-sex marriage. Brenner v. Armstrong,
Cases No. 14-14061 and 14-14066, 2014 WL 5891383 (11th Cir., Dec. 3,
2014). The Supreme Court also denied a stay in those cases. Armstrong v.
Brenner, 2014 WL 7210190 (Supreme Court, Dec. 19, 2014).
The court thus finds that the Attorney General is not likely to succeed
on appeal.
2. The Attorney General Has Not Shown that He Will Suffer
Irreparable Harm
The Attorney General argues that the state will suffer irreparable
harm if marriages are recognized on an interim basis that are ultimately

determined to be inconsistent with Alabama law, resulting in confusion in

the law and in the legal status of marriages. (Doc. 55, pp. 1-2). The court
disagrees. What the Attorney General is describing is harm that may occur
to those whose marriages become legal or who are permitted to marry by the
State while the injunction is in place, only to have them nullified if this
courts ruling is overturned. This is not a harm to the State, but rather a
potential harm to the same-sex couples whose marriage arrangements
recognized or entered into during the period of the injunction which may be
subject to future legal challenge by the State if the injunction is overturned.
Moreover, the plaintiffs point out that any marriages entered into in reliance
on the courts injunction are likely to be ruled valid regardless of the outcome
of the appeal. See Evans v. Utah, 21 F.Supp.3d 1192, 1209-1210 (D.Utah
2014)(finding that marriages entered into in Utah after district court entered
injunction and prior to stay issued by Supreme Court were valid).
3. Granting a Stay Will Irreparably Harm the Plaintiffs and Other

Same-Sex Couples
As indicated above and in its order granting the injunction, the court
has already found that same-sex couples face harm by not having their
marriages recognized and not being allowed to marry. The harms entailed in
having their constitutional rights violated are irreparable and far outweigh
any potential harm to the Attorney General and the State of Alabama. As
long as a stay is in place, same-sex couples and their families remain in a

state of limbo with respect to adoption, child care and custody, medical
decisions, employment and health benefits, future tax implications,
inheritance and many other rights associated with marriage. The court
concludes that these circumstance constitute irreparable harm.
4. The Public Interest Will be Harmed by a Stay

The Attorney General argues that a stay will serve the public interest
by avoiding the confusion and inconsistency that will result from an on-again,
off-again enforcement of marriage laws. (Doc. 55 at 2). The court finds that
the states interesting in refusing recognize the plaintiffs same-sex marriage
or in allowing same-sex marriage is insufficient to override the plaintiffs
interest in vindicating their constitutional rights. The public interest does
not call for a different result.
In its discretion, however, the court recognizes the value of allowing
the Eleventh Circuit an opportunity to determine whether a stay is
appropriate. Accordingly, although no indefinite stay issues today, the court
will allow the Attorney General time to present his arguments to the
Eleventh Circuit so that the appeals court can decide whether to dissolve or
continue the stay pending appeal (assuming there will be an appeal.) The
preliminary injunction will be stayed for 14 days.

Prior to the 14-day stays expiration, the court will issue a separate
order addressing plaintiffs request for clarification of the courts injunction
order. (See Doc. 56, pp. 6-10).
Conclusion
IT IS HEREBY ORDERED that the Courts Order of Injunction and
Judgment (Docs. 53 & 54) are STAYED FOR 14 DAYS. If no action is taken
by the Eleventh Circuit Court of Appeals to extend or lift the stay within that
time period, this courts stay will be lifted on February 9, 2105.
DONE and ORDERED this 25th day of January, 2015.
Case: 15-10295
Page: 1 of 3
Exhibit C

UNITED STATES DISTRICT COURT

CARI. D. SEARCY and KIMBERLY
MCKEEAND, individually and as parent and
next friend of K.S., a minor,
Plaintiffs,
v.
LUTHER STRANGE, in his official capacity
as Attorney General of the State of Alabama,
Defendant.
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Civil Action No.

1:14-cv-208-CG-N
NOTICE OF APPEAL
Alabama Attorney General Luther Strange, sued in his official capacity, gives notice of
his appeal, to the Eleventh Circuit Court of Appeals, of the District Courts Memorandum
Opinion and Order (doc. 53) and Judgment (doc. 54), entered January 23, 2015.
Respectfully submitted,
LUTHER STRANGE
Attorney General
Andrew L. Brasher
Solicitor General
James W. Davis
Laura E. Howell
STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
Attorneys for Alabama Attorney General
Luther Strange

CERTIFICATE OF SERVICE
I certify that on January 26, 2015, I electronically filed the foregoing document using the
Courts CM/ECF system which will send notification of such filing to the following persons:
Christine C. Hernandez
P. O. Box 66174
Mobile, AL 36660
Telephone: (251) 479-1477
christine@hernandezlaw.comcastbiz.net
David G. Kennedy
P. O. Box 556
Mobile, AL 36601
Telephone (251) 338-9805
david@kennedylawyers.com
s/Andrew L. Brasher
Counsel for the Defendant

15-10295 Alabama Motion For Stay Pending Appeal

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15-10295 Alabama Motion For Stay Pending Appeal

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Case: 15-10295

Date Filed: 01/26/2015

IN THE UNITED STATES COURT OF APPEALS

Luther Strange, Attorney General,

On appeal from the United States District Court

APPELLANTS TIME-SENSITIVE MOTION TO STAY

OFFICE OF THE ALABAMA ATTORNEY

January 26, 2015

Date Filed: 01/26/2015

CERTIFICATE OF INTERESTED PERSONS

Brasher, Andrew L., Solicitor General

Davis, James W., Assistant Attorney General

Granade, Hon. Callie V. S., United States District Judge

Hernandez, Christine C., attorney for plaintiffs

Howell, Laura E., Assistant Attorney General

Kennedy, David G., attorney for plaintiffs

McKeand, Kimberly, plaintiff

Searcy, Cari D., plaintiff

Strange, Luther, Attorney General

Date Filed: 01/26/2015

TIME-SENSITIVE MOTION TO STAY

And Floridas request for an

Date Filed: 01/26/2015

Accordingly, we respectfully request a ruling on this motion before

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

relationship as a marriage is not to include Plaintiffs in an existing institution,

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

typically are not second-guessed under the Constitution for

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Date Filed: 01/26/2015

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

LUTHER STRANGE, in his capacity

MEMORANUM OPINION AND ORDER

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 2 of 10

Marriage Protection Act. (Doc. 22-6). The Alabama Sanctity of Marriage

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 3 of 10

order to promote, among other goals, the stability and welfare of

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 4 of 10

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 5 of 10

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 6 of 10

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 7 of 10

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 8 of 10

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 9 of 10

compelling, link between its prohibition and non-recognition of same-sex marriage

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 10 of 10

Case 1:14-cv-00208-CG-N Document 54 Filed 01/23/15 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT