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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN
EQUALITY; FAMILY EQUALITY
COUNCIL; DONNA PHILLIPS;
JANET SMITH; KATHRYN
GARNER; SUSAN HROSTOWSKI;
JESSICA HARBUCK; BRITTANY
ROWELL; TINORA SWEETENLUNSFORD; and KARI LUNSFORD,
Plaintiffs,
vs.
The MISSISSIPPI DEPARTMENT OF
HUMAN SERVICES and RICHARD
BERRY, in his official capacity as its
Executive Director; PHIL BRYANT, in
his official capacity as Governor of the
State of Mississippi; JIM HOOD, in his
official capacity as Mississippi Attorney
General,

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CIVIL ACTION
NO. 3:15-cv-00578-DPJ-FKB
Oral Argument Requested

Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION

MCDUFF & BYRD
767 North Congress Street
Jackson, Mississippi 39202
(601) 969-0802

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
Attorneys for Plaintiffs

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TABLE OF CONTENTS
Page
Preliminary Statement .........................................................................................................1
Argument .............................................................................................................................2
I.

The Mississippi Adoption Ban Causes the Parent Plaintiffs Irreparable
Harm ........................................................................................................................3

II.

There is a Substantial Likelihood of Success on the Merits ....................................7

III.

The Threatened Harm if the Injunction is Denied Outweighs Any Harm
That May Result ......................................................................................................8

IV.

The Grant of an Injunction Will Not Undermine the Public Interest ......................8

CONCLUSION....................................................................................................................9

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TABLE OF AUTHORITIES
Page(s)
Cases
Baskin v. Bogan,
983 F. Supp. 2d 1021 (S.D. Ind. 2014) .......................................................................... 7
Bassett v. Snyder,
951 F. Supp. 2d 939 (E.D. Mich. 2013) ........................................................................ 9
Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte,
481 U.S. 537 (1987)................................................................................................... 3, 4
Campaign for S. Equal. v. Bryant,
64 F. Supp. 3d 906 (S.D. Miss. 2014) ....................................................................... 3, 5
Cohen v. Coahoma Cnty., Miss.,
805 F. Supp. 398 (N.D. Miss. 1992) .......................................................................... 6, 7
De Leon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) ................................................................. 6, 8, 9
Elrod v. Burns,
427 U.S. 347 (1976)....................................................................................................... 6
Giovani Carandola, Ltd. v. Bason,
303 F.3d 507 (4th Cir. 2002) ..................................................................................... 8, 9
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ..........................................................................................passim
Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279 (5th Cir. 2012) ......................................................................................... 9
Troxel v. Granville,
530 U.S. 57 (2000)......................................................................................................... 9
Valley v. Rapides Parish Sch. Bd.,
118 F.3d 1047 (5th Cir. 1997) ............................................................................... 2, 3, 8
United States v. Windsor,
133 S. Ct. 2675 (2013) ..........................................................................................passim
Statutes
Miss. Code Ann. § 37-13-171.............................................................................................. 4

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Miss. Code Ann. § 37-13-173.............................................................................................. 4
Miss. Code Ann. § 37-23-137.............................................................................................. 4
Miss. Code Ann. § 93-17-3.........................................................................................passim
Other Authorities
Associated Press, Gov. Bryant’s ‘State of the State’ Speech,
http://www.jackson freepress.com/news/2014/jan/22/gov-bryantsstate-state-speech/ (last visited Aug. 28, 2015) ............................................................. 1
Mississippi Department of Education, Procedural Safeguards: Your
Family’s Special Education Rights,
http://www.mde.k12.ms.us/OSE/parents (last visited Aug. 28, 2015) .......................... 4
The University of Mississippi Medical Center, Visitor Questions &
Answers, https://www.ummchealth.com/Patient_and_Visitor
_Information/Patient_and_Visitor_Information/Visitor_FAQ/Visitor_F
AQ.aspx (last visited Aug. 28, 2015) ............................................................................ 5

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Plaintiffs Donna Phillips and Janet Smith, and Kathryn Garner and Susan
Hrostowski, (collectively, the “Parent Plaintiffs”), respectfully submit this Memorandum
of Law in support of their Motion for a Preliminary Injunction.
Preliminary Statement
Governor Phil Bryant said in his 2014 State of the State speech that an “objective
for success” in this state is “for every Mississippian to be born into a mature, two-parent
family.” Associated Press, Gov. Bryant’s ‘State of the State’ Speech, http://www.jackson
freepress.com/news/2014/jan/22/gov-bryants-state-state-speech/ (last visited Aug. 28,
2015). On this matter at least, the Parent Plaintiffs and Defendant Bryant completely
agree.
Plaintiffs Donna Phillips and Janet Smith, and Kathy Garner and Susan
Hrostowski, are married couples with children. Donna and Jan were married on August
1, 2013 and have an eight-year-old daughter, H.M.S.P. Kathy and Susan were married on
June 17, 2014 and have a fifteen-year-old son, H.M.G. H.M.S.P. and H.M.G. were, in
fact, born into exactly the type of “mature, two-parent” families that Governor Bryant
aspires to have for every Mississippi child. They are among the “many same-sex
couples” who the Supreme Court recently recognized “provide loving and nurturing
homes to their children.” Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015).
But because of nine words in a Mississippi statute, H.M.S.P. has only one legal
parent, Donna, and H.M.G. has only one legal parent, Kathy. Jan and Susan are each
unfairly and irrationally barred from adopting the child they have raised with their spouse
since birth by Miss. Code Ann. § 93-17-3(5) (the “Mississippi Adoption Ban”). That
provision, which states “Adoption by couples of the same gender is prohibited,”
precludes Jan and Susan from adopting and becoming the legal parents of their own
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children solely because they are gay. Because of this statute, the Parent Plaintiffs and
their children are irreparably harmed and they therefore ask this Court to enter an
immediate order preliminarily enjoining the relevant government officials from enforcing
the Mississippi Adoption Ban as it applies to them.
The Parent Plaintiffs easily make the required showing for a preliminary
injunction, including, of course, “a substantial likelihood of success on the merits.”
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997). The Mississippi
Adoption Ban denies gay couples not only the numerous rights, benefits, and duties that
flow from legal adoption, but also the equal dignity guaranteed by the Constitution. In
striking down the key provision of the Defense of Marriage Act in United States v.
Windsor, the Supreme Court observed that denying recognition under federal law to
married gay and lesbian couples “humiliates tens of thousands of children now being
raised by same-sex couples” and “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.” 133 S. Ct. 2675, 2694 (2013). The
same is true of the Mississippi Adoption Ban. It is unquestionably incompatible with the
guarantees of the Equal Protection and Due Process Clauses of the Fourteenth
Amendment.
Every day that the Mississippi Adoption Ban remains in effect, the Parent
Plaintiffs and their children suffer irreparable injury. The Parent Plaintiffs’ motion for a
Preliminary Injunction should be granted as soon as possible.
Argument
A plaintiff seeking a preliminary injunction must establish “(1) a substantial
likelihood of success on the merits; (2) a substantial threat of irreparable harm if the
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injunction is not granted; (3) that the threatened injury outweighs any harm that may
result from the injunction to the non-movant; and (4) that the injunction will not
undermine the public interest.” Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051
(5th Cir. 1997). Plaintiffs Donna Phillips and Janet Smith, and Kathryn Garner and
Susan Hrostowski, clearly meet this standard. Their motion for preliminary injunctive
relief should be granted without delay and their children should not have to wait any
longer to have two legal parents.
I.

The Mississippi Adoption Ban Causes the Parent Plaintiffs Irreparable
Harm
As an initial matter, the denial to the Parent Plaintiffs of their right to raise their

children with two legal parents because of the Mississippi Adoption Ban is a clear case of
irreparable harm. The significance of this injury is beyond dispute. See Campaign for S.
Equal. v. Bryant (“CSE”), 64 F. Supp. 3d 906, 936 (S.D. Miss. 2014) aff’d, 791 F.3d 625
(5th Cir. 2015) (“Perhaps the most significant stigmatic injury suffered by the plaintiffs
arises from the fact that one plaintiff in each couple lacks parental rights over the children
she loves and is raising.”)
The Mississippi Adoption Ban also undeniably deprives the Parent Plaintiffs of
scores of concrete and important benefits and rights, “from the mundane to the
profound.” Windsor, 133 S.Ct. at 2692, 2694. Of course, as the Supreme Court has
recognized, “[t]he intimate relationships to which we have accorded constitutional
protection include . . . child rearing and education.” Bd. of Directors of Rotary Int’l v.
Rotary Club of Duarte, 481 U.S. 537, 545 (1987). As Jan and Donna found out, the
Mississippi Adoption Ban makes something as ordinarily simple as registering their child
for public school an arduous process. Because Jan is the legal owner of their home but is

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not recognized as H.M.S.P’s legal parent, every year she is required to complete an
agreement “renting” her home to Donna and H.M.S.P. to prove that H.M.S.P. lives in the
school district. (Smith Decl. ¶ 19.)
And, because parental status is frequently used in the Mississippi Code to define
parental rights and responsibilities in connection with the education of children, the
Mississippi Adoption Ban interferes with the Parent Plaintiffs’ right to make educational
decisions on behalf of their children. For example, the Mississippi Code requires parents
to be notified about and make decisions regarding sex and abstinence-related education.
Miss. Code Ann. § 37-13-171(5) and § 37-13-173; see also, e.g., Mississippi Department
of Education, Procedural Safeguards: Your Family’s Special Education Rights,
http://www.mde.k12.ms.us/OSE/parents (last visited Aug. 28, 2015); see also Miss. Code
Ann. § 37-23-137(2) (Mississippi Department of Education’s Office of Special Education
requires parental consent to evaluate a child for disabilities and to create an educational
plan for them.).
The Mississippi Adoption Ban has also left Donna and Jan, and Kathy and Susan,
with the constant worry that Jan or Susan might not be empowered to make emergency
medical decisions if H.M.S.P. or H.M.G. were to require quick care and Donna or Kathy,
their legal parent, was not available. (Smith Decl. ¶ 15; Hrostowski Decl. ¶ 15.)
Commenting on the harm to families caused by the marriage ban at issue in Obergefell,
the Supreme Court noted that “Michigan . . . permits only opposite-sex married couples
or single individuals to adopt, so each child can have only one woman as his or her legal
parent. If an emergency were to arise, schools and hospitals may treat the three children
as if they had only one parent.” 135 S. Ct. 2584, 2595 (2015); see also CSE, 64 F. Supp.

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3d at 949. The exact same concerns exist here.1 At the University of Mississippi
Medical Center’s Batson Children’s Hospital, for example, “[p]arents are allowed to stay
24 hours a day,” but non-parent visitors are limited to scheduled visiting hours. The
University of Mississippi Medical Center, Visitor Questions & Answers,
https://www.ummchealth.com/Patient_and_Visitor_Information/Patient_and_
Visitor_Information/Visitor_FAQ/Visitor_FAQ.aspx (last visited Aug. 28, 2015)
(emphasis added). Therefore, if H.M.S.P or H.M.G. were hospitalized, Jan and Susan
would not necessarily be allowed to stay with—and make medical decisions on behalf
of—their respective children.
The Parent Plaintiffs also live with the daily uncertainty that, should Kathy or
Donna be killed or badly hurt, Susan or Jan might not be able retain custody of her child.
For Jan and Donna, this concern is only magnified because of Donna’s military service,
where she sometimes serves in harm’s way. (Smith Decl. ¶¶ 4, 16.) Needless to say, for
the Parent Plaintiffs, this harm is immediate and ongoing—accidents can happen at any
time.
The denial of these and other rights and benefits to gay families in Mississippi
constitutes irreparable harm per se. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed,
“[a]n injury is irreparable if money damages cannot compensate for the harm.” De
Leon v. Perry, 975 F. Supp. 2d 632, 663 (W.D. Tex. 2014). There is obviously no dollar
1

The Michigan adoption statute referenced by the Supreme Court prohibits unmarried
couples from adopting. Obergefell, 135 S. Ct. at 2595. The Supreme Court’s
discussion of the statute in the Obergefell decision referred to the effect of the
Michigan marriage ban, which prevented same-sex couples from adopting because it
prevented them from marrying. Obergefell, 135 S.Ct. at 2595. Now that the
Supreme Court has overturned statutes prohibiting marriage equality, married samesex couples should now be able to adopt in all states except Mississippi. Mississippi
is the only state with a statute that specifically prohibits same-sex couples from
adopting and that has not been struck down by a court.
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amount that can make Donna Phillips and Jan Smith whole for the fear they suffer
knowing that if anything should happen to Donna while she is deployed, Jan could lose
custody of her child. (Smith Decl. ¶ 16.) There is no actuary who could quantify the
pain Kathy Garner and Susan Hrostowski feel by virtue of the fact that their state’s laws
tell everyone—state officials like Defendants, their neighbors, and especially their own
child—that Susan’s love and commitment to their child is unworthy of the dignity, status,
and protections of parentage. (Hrostowski Decl. ¶ 19.)
The Supreme Court has made it crystal clear that these Parent Plaintiffs have a
due process and equal protection right under the U.S. Constitution to have status as legal
parents to their own children. See Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015)
(“[Plaintiffs] ask for equal dignity in the eyes of the law. The Constitution grants them
that right.” (emphasis added)); United States v. Windsor, 133 S. Ct. 2675, 2693 (2013)
(“[I]nterference with the equal dignity of same-sex marriages . . . was more than an
incidental effect of the federal statute.” (emphasis added)); id. at 2692 (“[T]he State’s
decision to give this class of persons the right to marry conferred upon them a dignity and
status of immense import.” (emphasis added)); id. at 2696 (“The federal statute is
invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to
injure those whom the State, by its marriage laws, sought to protect in personhood and
dignity.” (emphasis added)). And, as “has repeatedly been recognized by the federal
courts at all levels[,] violation of constitutional rights constitutes irreparable harm as a
matter of law.” Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D. Miss.
1992). See also Baskin v. Bogan, 983 F. Supp. 2d 1021, 1028 (S.D. Ind. 2014).

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II.

There is a Substantial Likelihood of Success on the Merits
In light of Windsor and Obergefell, there also can be no serious question that the

Parent Plaintiffs are substantially likely to succeed on the merits. The Supreme Court has
now left no ambiguity: gay couples must be granted the same “equal dignity in the eyes
of the law” as straight couples. Obergefell, 135 S. Ct. at 2608; see also Windsor, 133 S.
Ct. at 2696. The same principles and reasoning that animated Obergefell and Windsor
apply with equal force and effect here. Indeed, the United States Supreme Court, in
holding that gay couples have a right to marry under the United States Constitution,
explicitly recognized the close connection between the right to marry and the right to
adopt. Obergefell, 135 S. Ct. at 2601 (“[W]hile the States are in general free to vary the
benefits they confer on all married couples, they have throughout our history made
marriage the basis for an expanding list of governmental rights, benefits, and
responsibilities. These aspects of marital status include . . . adoption rights.”).
Under any standard of review—and certainly under the heightened standard of
review applied by the Supreme Court in Windsor, 133 S. Ct. at 2696-97, and Obergefell,
135 S. Ct. at 2608—all plaintiffs in this action are highly likely to succeed on the merits
for the simple reason that there is no legitimate reason to disqualify gay couples from
adopting, especially while there are many more children in foster care in Mississippi than
there are parents currently able to legally adopt. But the question before the Court on this
Motion is even narrower than that.
On this Motion, the Court need only consider whether there is an adequate basis
for Mississippi to bar the Parent Plaintiffs—Jan Smith and Donna Phillips, and Susan
Hrostowski and Kathy Garner—from adopting the children they have raised since birth
solely because they are gay. It is virtually inconceivable that the State will be able to
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advance such a rationale. The indisputable truth is that, as was true of the Defense of
Marriage Act, the Mississippi Adoption Ban disadvantages H.M.G. and H.M.S.P. and
“makes it . . . more difficult for the[m] to understand the integrity and closeness of their
own famil[ies] and [their] concord with other families in their community and in their
daily lives.” Windsor, 133 S. Ct. at 2694.
III.

The Threatened Harm if the Injunction is Denied Outweighs Any Harm That
May Result
Without a preliminary injunction, the Parent Plaintiffs “will continue to suffer

state-sanctioned discrimination and the stigma that accompanies it until they can enjoy
the same rights as heterosexual couples.” De Leon v. Perry, 975 F. Supp. 2d 632, 664
(W.D. Tex. 2014). The ongoing dignitary, economic, and social injuries that the Parent
Plaintiffs suffer far outweigh any potential damage that the requested injunction may
cause to the State of Mississippi. See Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047,
1056 (5th Cir. 1997). As a result, Mississippi is “in no way harmed by issuance of a
preliminary injunction which prevents the state from enforcing restrictions likely to be
found unconstitutional. If anything, the system is improved by such an injunction.”
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal quotation
marks omitted). see also De Leon, 975 F. Supp. 2d at 664; Bassett v. Snyder, 951
F. Supp. 2d 939, 971 (E.D. Mich. 2013).
IV.

The Grant of an Injunction Will Not Undermine the Public Interest
Finally, a preliminary injunction enjoining enforcement of the Mississippi

Adoption Ban on the Parent Plaintiffs, thereby allowing them to pursue their most basic
desire for their children to have two legally recognized parents, will only reinforce the
Nation’s longstanding commitment to “the interest of parents in the care, custody, and

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control of their children,” which is “perhaps the oldest of the fundamental liberty interests
recognized by th[e] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). For this reason,
granting a preliminary injunction will not undermine the public interest. Injunctions
protecting constitutional rights “are always in the public interest.” Opulent Life Church
v. City of Holly Springs, Miss., 697 F.3d 279, 298 (5th Cir. 2012).
CONCLUSION
For the foregoing reasons, Parent Plaintiffs respectfully request that this Court
grant their Motion for a Preliminary Injunction.

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Respectfully submitted,
Dated: August 28, 2015
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
By: /s/ Roberta A. Kaplan
Roberta A. Kaplan*
Lead Counsel
Andrew J. Ehrlich*
Joshua D. Kaye*
Jacob H. Hupart*
Alexia D. Koritz*
1285 Avenue of the Americas
New York, NY 10019-6064
Tel:(212) 373-3000
Fax:(212) 757-3990
rkaplan@paulweiss.com
aehrlich@paulweiss.com
jkaye@paulweiss.com
jhupart@paulweiss.com
akoritz@paulweiss.com

MCDUFF & BYRD

BRAZIL & BURKE, P.A.

ELLIS LAW FIRM, PLLC.

Meghann K. Burke*
77 Central Avenue, Suite E
Asheville, NC 28801
Tel: (828) 255-5400
Fax: (828) 258-8972
meghann@brazilburkelaw.com

Dianne Herman Ellis
Bar No. 102893
1145 Robinson Avenue,
Ocean Springs, MS 39564
Tel: (228) 215-0037
Fax: (228) 284-1889
diannernjd@aol.com

By: /s/ Robert B. McDuff
Robert B. McDuff
Bar No. 2532
Sibyl C. Byrd
Bar No. 100601
Jacob W. Howard
Bar No. 103256
767 North Congress Street
Jackson, Mississippi 39202
Tel:(601) 969-0802
Fax: (601) 969-0804
rbm@mcdufflaw.com
scb@mcdufflaw.com
jake@mcdufflaw.com

* Admitted pro hac vice
Attorneys for Plaintiffs Campaign for
Southern Equality, Family Equality
Council, Donna Phillips, Janet Smith,
Kathryn Garner, Susan Hrostowski,
Jessica Harbuck, Brittany Rowell, Tinora
Sweeten-Lunsford, and Kari Lunsford.

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CERTIFICATE OF SERVICE
I hereby certify that, on August 28, 2015, I electronically transmitted the
above and foregoing document to the Clerk of the Court using the ECF system for filing
and I hereby certify that I have sent via electronic mail to the following individuals who
are not yet receiving documents via the ECF system in this matter:
The Mississippi Department of Human Services
Office of the Attorney General of Mississippi
Walter Sillers Building
Suite 1200
550 High Street
Jackson, MS 39201
Richard Berry, in his official capacity as Executive Director of the
Mississippi Department of Human Services
Office of the Attorney General of Mississippi
Walter Sillers Building
Suite 1200
550 High Street
Jackson, MS
Governor Phil Bryant
Office of the Attorney General of Mississippi
Walter Sillers Building
Suite 1200
550 High Street
Jackson, MS 39201
Attorney General Jim Hood
Office of the Attorney General of Mississippi
Walter Sillers Building
Suite 1200
550 High Street
Jackson, MS 39201
By: /s/ Roberta A. Kaplan
Roberta A. Kaplan
Admitted pro hac vice
N.Y. Bar No. 2507093
Paul, Weiss, Rifkind,
Wharton & Garrison LLP
New York, NY 10019
Tel: (212) 373-3000
rkaplan@paulweiss.com
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