FOR IMMEDIATE RELEASE
NEWS ADVISORY
January 26, 2015
For More Information, contact:
Luther Strange
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
Claire Haynes (334) 242-7351
Page 1 of 1
AG STRANGE FILES APPEAL AND MOTION FOR STAY OF FEDERAL
DISTRICT COURT RULING DECLARING ALABAMA’S SAME-SEX
MARRIAGE BAN UNCONSTITUTIONAL
(MONTGOMERY) -Alabama Attorney General Luther Strange has filed an
appeal and a motion to stay a federal court order overturning Alabama’s definition of
marriage as between one man and one woman.
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Attorney General Strange filed the appeal and motion to stay with the U.S. 11
Circuit Court of Appeals Monday. The actions follow the Attorney General’s request to
stay the U.S. District Court’s January 23, 2015, ruling. U.S. District Judge Callie
Granade of Mobile granted the stay request on January 25, 2015, for a period of 14 days
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to allow the State of Alabama time to appeal to the 11 Circuit Court of Appeals.
“My office has filed an appeal and a motion to stay the federal District Court’s
decision and we are preparing our case to defend Alabama’s laws prohibiting same-sex
marriage,” said Attorney General Luther Strange. “Unfortunately, the District Court’s
ruling to strike down Alabama’s marriage laws has created uncertainty and confusion
among the public over the law. My office has moved quickly to bring the issue before
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the 11 Circuit Court of Appeals to ensure that Alabama’s laws are defended.
Ultimately, the U.S. Supreme Court is scheduled to address the issue of same-sex
marriage in a few months.”
Note: The documents are available at these links:
http://www.ago.alabama.gov/File-2015-01-26-Motion-to-Stay
http://www.ago.alabama.gov/File-2015-01-26-Notice-of-Appeal
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501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.alabama.gov 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
APPELLANT’S TIME-SENSITIVE MOTION TO STAY
(RULING REQUESTED BEFORE FEB. 9, 2015)
Luther Strange OFFICE OF THE ALABAMA ATTORNEY
GENERAL
Attorney General
501 Washington Avenue
Andrew L. Brasher* Montgomery, AL 36130
Solicitor General (334) 353-2609
(334) 353-8440 (fax)
James W. Davis abrasher@ago.state.al.us
Laura Howell
Assistant Attorneys General
January 26, 2015
Case: 15-10295 Date Filed: 01/26/2015 Page: 2 of 17
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:
- 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
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
Counsel for the Appellant
C1 of 1
Case: 15-10295 Date Filed: 01/26/2015 Page: 3 of 17
TIME-SENSITIVE MOTION TO STAY
Alabama Attorney General Luther Strange has appealed from the District
Court’s Order and Judgment (Exhibit A), which declared Alabama’s 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 Court’s 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 Florida’s 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 Florida’s 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 same-
sex 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 Alabama’s other district courts and those judges, including other
judges in the district court at issue here, are not bound by the lower court’s
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
today’s holding by this court.” Doc. 53 at 6 n.1. It makes sense to stay the lower
court’s 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, ß 36.03 (2006); ALA. CODE 1975 ß 30-1-19. The 2006
Constitutional Amendment and the statute from the 1990’s 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 Defendant’s motion, entering
equitable relief declaring that Alabama’s 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 today’s
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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 Court’s judgment
on January 23, 2015, the same date it was entered. (Doc. 55). On Sunday, January
25, 2015, the District Court denied the Attorney General’s motion in part and
granted it in part. The District Court declined to stay its order pending the U.S.
Supreme Court’s 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 Court’s 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. ß 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 General’s 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. Sec’y, Fla. Dep’t of Health, Appeal No. 14-14061-AA (11th Cir.),
Grimsley v. Sec’y Dep’t 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 Court’s judgment is due to be reversed. As the Sixth Circuit
held in DeBoer, “[n]ot one of the plaintiffs’ theories Ö 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 Court’s 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
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existed and up until the 21 Century, marriage has by definition been an opposite-
sex 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 Nation’s 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 Alabama’s marriage laws.
Failure to acknowledge the evidence presented by the Defendant.
Defendant contended that Alabama’s 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 Court’s
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 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.
Id. at *11. And the court recognized the legitimacy of encouraging an environment
that will be good for children:
People may not need the government’s encouragement to have sex.
And they may not need the government’s encouragement to propagate
the species. But they may well need the government’s encouragement
to create and maintain stable relationships within which children may
flourish. It is not society’s laws or for that matter any one religion’s
laws, but nature’s 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 Court’s 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 court’s order is
not stayed. A stay would serve the public interest by avoiding confusion among
local officials and additional litigation in Alabama’s 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
today’s 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:
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
James W. Davis
Laura E. Howell
Assistant Attorneys General
Attorneys for the Appellant
OF COUNSEL:
Office of the Attorney General
501 Washington Avenue
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
s/ Andrew L. Brasher
Andrew L. Brasher
Of Counsel
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Case 1:14-cv-00208-CG-N Document 60 Filed 01/26/15 Page 1 of 2
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CARI. D. SEARCY and KIMBERLY )
MCKEEAND, individually and as parent and )
next friend of K.S., a minor, )
)
Plaintiffs,
Civil Action No.
)
v. 1:14-cv-208-CG-N
)
)
LUTHER STRANGE, in his official capacity
)
as Attorney General of the State of Alabama,
)
Defendant.
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 Court’s Memorandum
Opinion and Order (doc. 53) and Judgment (doc. 54), entered January 23, 2015.
Respectfully submitted,
LUTHER STRANGE
Attorney General
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
James W. Davis
Laura E. Howell
Assistant Attorneys General
STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
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
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Case 1:14-cv-00208-CG-N Document 60 Filed 01/26/15 Page 2 of 2
CERTIFICATE OF SERVICE
I certify that on January 26, 2015, I electronically filed the foregoing document using the
Court’s CM/ECF system which will send notification of such filing to the following persons:
Christine C. Hernandez David G. Kennedy
P. O. Box 66174 P. O. Box 556
Mobile, AL 36660 Mobile, AL 36601
Telephone: (251) 479-1477 Telephone (251) 338-9805
christine@hernandezlaw.comcastbiz.net david@kennedylawyers.com
s/Andrew L. Brasher
Counsel for the Defendant
2
