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No. 15-10313-A
Luther Strange
Attorney General
Andrew L. Brasher*
Solicitor General
James W. Davis
Laura Howell
Assistant Attorneys General
February 2, 2015
Case: 15-10313
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Strange v. Strawser
Appeal No. 15-10313-A
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1620 (1996), and one year after Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472
(2003). In other words, the plaintiffs arguments on the merits expressly ask this
Court to reject a binding Supreme Court decision and a binding decision of this
Court. That fact alone establishes that we have a substantial likelihood of success.
Finally, we have made a substantial case that the interests supported by
opposite-sex marriage are, at the very least, rational. As the Sixth Circuit recently
explained, states are not in the marriage business to regulate love. DeBoer v.
Snyder, 772 F.3d 388, 404 (6th Cir. 2014). Instead, state marriage laws link
children to their biological parents (and link these biological parents to each other)
by imposing a package of privileges and obligationssuch as presumptions of
paternitythat make less sense in the context of same-sex relationships. It is not
irrational or malicious for state laws to reflect an awareness of the biological
reality that couples of the same sex do not have children the same way as couples
of opposite sexes. Id. at 405. It is instead the background against which the
institution of marriage has developed over the last several thousand years.
In any event, our arguments on the merits have persuaded a panel of the
Sixth Circuit and dissenting judges in other circuits. At the very least, because this
case involves a serious legal question that has split the circuits, Ruiz v. Estelle,
650 F.2d 555, 565 (5th Cir. Unit A June 1981), a stay is warranted if the balance of
equities weighs heavily in favor of granting the stay, Garcia-Mir v. Meese, 781
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F.2d 1450, 1453 (11th Cir. 1986) (internal quotations, brackets, and citations
omitted).
B. The equities and public interest weigh in favor of a stay.
On the balance of the equities, the plaintiffs do not add much to the
arguments in Searcy, Appeal No. 15-10295-C. Like the plaintiffs in Searcy, the
plaintiffs simply ignore the harm to the state from its inability to enforce a state
law that was passed with the support of roughly 80% of the electorate. That harm
may not be enough, by itself, to warrant a stay. But it clearly qualifies as a form
of irreparable injury that warrants a stay unless the plaintiffs can point to strong
countervailing equities. 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)). The plaintiffs also make too much
of a single decision from a district-court judge in Utah, which purported to validate
same-sex marriages that took place under a cloud of litigation in that state. That
decision is, obviously, not binding on any court in Alabama, and it would not
resolve the uncertainty of any same-sex marriages that might take place in
Alabama pending the U.S. Supreme Courts ruling a few months from now.
Moreover, like the plaintiffs in Searcy, the plaintiffs here ignore the very
real confusion and conflict that has already arisen in Alabama in light of the trial
courts decision in this case.
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Alabamas probate judges and its Chief Justice have issued conflicting statements
about the meaning of the lower courts order. And, because the Attorney General
is the only party to the injunction but does not issue marriage licenses, it is unclear
what relief he can give the named plaintiffs. This conflict and confusion will
vanish once the U.S. Supreme Court issues its own decision on this issue in a few
months. And neither the plaintiffs here nor the plaintiffs in Searcy have identified
any harm in waiting.
Nonetheless, the plaintiffs here do raise one point that is unique to their case.
They argue that Plaintiff Strawser is facing significant health issues that put his
life at great risk and a hospital on a previous occasion would not honor a
medical power of attorney in favor of Plaintiff Humphrey because Humphrey was
not a family member or spouse. Opp. to Mot to Stay at 17 (19 of 22). As we
noted at the preliminary injunction hearing, if this assertion is true, the hospital has
already violated Alabama law and subjected itself to a suit for damages and
attorneys fees. See Ala. Code 26-1A-404 et seq. Under Alabama law, a medical
power of attorney may be executed in favor of any competent individual; it is not
limited to spouses or family members. Id. And Alabama law provides an express
cause of action to enforce the medical power of attorney if it is improperly denied.
See Ala. Code 26-1A-120 (providing cause of action and attorneys fees). The
plaintiffs can solve their immediate problem by asking their new attorneys to send
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the hospital a threatening letter.1 They do not need a federal injunction against the
Alabama Attorney Generals Office, which does not issue marriage licenses in any
event.
CONCLUSION
The Court should stay the decision in this case for the same reasons that it
should stay the District Courts decision in Searcy.
respectfully requests that this Court rule on this motion before February 9, 2015
and enter an order staying the Order during the pendency of the appeal or until
further order of this Court or the U.S. Supreme Court.
Respectfully submitted,
LUTHER STRANGE
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
The plaintiffs were pro se in the trial court. But they are now represented by counsel.
Case: 15-10313
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 2nd day of February, 2015, I served a
copy of the foregoing upon the following by electronic mail and U.S. Mail:
Shannon P. Minter
National Center for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
sminter@nclrights.org
Christopher F. Stoll
National Center for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
cstoll@nclrights.org
s/ Andrew L. Brasher
Andrew L. Brasher
Of Counsel