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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN EQUALITY, ET AL.
VS.

PLAINTIFFS

CIVIL ACTION NO. 3:15cv578-DPJ-FKB

The MISSISSIPPI DEPARTMENT OF HUMAN
SERVICES, ET AL.
DEFENDANTS
_______________________________________________________
MEMORANDUM OF AUTHORITIES SUPPORTING DEFENDANTS’
RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION
_______________________________________________________
Federal courts, like their state counterparts, have a duty and authority to
interpret and apply the law. They are also empowered to enjoin parties’ potential future
conduct deemed contrary to federal law. But that authority has important limits
established by laws, court rules, and the Constitution itself. Preliminarily exercising the
Court’s injunctive power is reserved for only the most extreme circumstances, and
demands that the requesting parties meet a stringent burden of proof.
Four of the plaintiffs in this case believe that Mississippi Code Section 93-17-3(5)
prohibits them from obtaining a state court adoption decree and want a preliminary
injunction prohibiting the four defendants from “enforcing” the statute in their future
adoption proceedings. They have not proven the necessary four elements for awarding
that requested relief.
The movants are not likely to succeed on the merits of their claims against the
defendants. A lack of Article III standing, and the defendants’ Eleventh Amendment
immunity, require denying their motion and dismissing their claims. Further, even if
their claims against the defendants properly belong in federal court, the movants are not
likely to succeed on their Fourteenth Amendment challenge to Section 93-17-3(5).

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The movants’ burden of proving the remaining equitable factors justify
preliminary injunctive relief against the defendants has also not been satisfied.
Enjoining the defendants would not alleviate the movants’ alleged irreparable harms,
and would not prevent any irreparable harms they propose may happen in the future.
The balance of harms and the public interest weigh against preliminarily enjoining the
defendants from enforcing a statute they do not and cannot enforce.
For all these reasons, and those previously asserted for dismissal, the Court
should deny the movants’ request for preliminary injunctive relief.
FACTS
County chancery courts possess exclusive jurisdiction to adjudicate Mississippi
adoption actions. [See Miss. Const., art. 6, § 159; Miss. Code Ann. § 93-17-3(4)]. Title
93, Chapter 17 of the Mississippi Code specifies the procedures applicable to adoption
proceedings. [See Miss. Code Ann. § 93-17-1 et seq.]. Code Section 93-17-3 requires that
all adoption actions be commenced by filing a sworn petition in the appropriate
chancery court. [Miss. Code Ann. § 93-17-3(4)]. The Code Section also defines who may
adopt an individual as “any person may be adopted in accordance with the provisions of
this chapter in termtime or in vacation by an unmarried adult or by a married person
whose spouse joins in the petition.” [Id.]. A separate statutory provision, originally
enacted by the Legislature in 2000, states “[a]doption by couples of the same gender is
prohibited.” [Miss. Code Ann. § 93-17-3(5)].
The Mississippi Department of Human Services (DHS) is a state executive agency
authorized by statute to provide programs and services related to public welfare,
including aging and adult services, community services, early childhood care and
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development, family and children’s services, family foundation and support, field
operations and youth services. [See Miss. Code Ann. § 43-1-1 et seq.; Declaration of
Mark Smith at ¶ 3, Docket No. 15-1]. DHS’s Executive Director, Richard Berry, is the
agency’s chief executive. DHS various departments and divisions, including its Division
of Family and Children’s Services (DFCS). DFCS is the organizational unit which
provides programs and services relating to adoption and foster care, principally through
its Adoption Unit. [See Miss. Code Ann. § 43-1-2; Declaration of Mark Smith at ¶ 4,
Docket No. 15-1]. DFCS is authorized to establish DHS policies relating to adoption and
foster care programs. Its current policies are published in DFCS’s Policy Manual and a
matter of public record.1
DHS cannot grant or deny adoption petitions filed in Mississippi chancery courts.
In non-foster care adoption actions, DHS’s limited involvement, if any, would be
dictated by the court where the adoption action is filed. A completed home study – an
investigation and report utilized by the court in adjudicating whether a proposed
adoption is in the best interests of the prospective adoptee – is statutorily required
before a court awards and adoption. [See Miss. Code Ann. 93-17-3(6)]. An adopting
party or parties may obtain a home study from a licensed social worker approved by the
court where the adoption petition is filed, or through a court-ordered home study by a
DHS social worker after filing the adoption petition. [Id.; see also Miss. Code Ann. § 9317-11 (DHS may be ordered by the court to provide a home study after the petition is

1

DFCS’s Policy Manual is available on-line at: <http://www.mdhs.state.ms.us/familychildrens-services/dfcs-policy> (last accessed September 11, 2015).

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filed); Declaration of Mark Smith at ¶ 7, Docket No. 15-1].2
Phil Bryant is the Governor of the State of Mississippi. Pursuant to the
Mississippi Constitution, and by statute, Governor Bryant has general authority as the
state’s “supreme executive officer of the state,” a duty to “see that the laws are faithfully
executed,” and various other general duties prescribed by law. [See Miss. Const., art. 5,
§ 123; Miss. Code Ann. § 7-1-5]. Governor Bryant has specific authority to appoint
DHS’s Executive Director and has policy direction authority with respect to the agency.
[See Miss. Code Ann. § 43-1-2]. However, like DHS and its Executive Director,
Governor Bryant lacks any specific authority to grant or deny adoptions.
Jim Hood is the Attorney General of the State of Mississippi. The Attorney
General is the state’s chief legal officer, authorized to prosecute and defend lawsuits on
behalf of the state, its agencies, and officers sued in their official capacities, and charged
with the duty to intervene in lawsuits and defend the constitutionality of the state’s laws.
[See Miss. Code Ann. §§ 7-5-1, 7-5-39]. The Attorney General has no authority to grant
or deny adoptions.
On August 12, 2015, two plaintiff advocacy groups, the Campaign for Southern
Equality and Family Equality Council, and eight individual plaintiffs, Donna Phillips,
Janet Smith, Kathryn Garner, Susan Hrostowski, Jessica Harbuck, Brittany Rowell,
Tinora Sweeten-Lunsford and Kari Lunsford, filed this lawsuit against the defendants

2

As of this writing, no state court has ordered DHS to conduct a home study for any of
the plaintiffs in this case. The current Director of DFCS has testified that if a state court orders
DHS to provide a home study in an adoption proceeding involving the plaintiffs, or any other
prospective adopting parties of the same gender, DHS would not disregard the court’s order or
refuse to conduct and provide the home study, or any other investigation and report.
[Declaration of Mark Smith at ¶ 8, Docket No. 15-1].

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DHS, and DHS Executive Director Berry, Governor Bryant, and Attorney General Hood,
in their official capacities, challenging Section 93-17-3(5). [Complaint, Docket No. 1].
The plaintiffs allege Section 93-17-3(5) violates the Fourteenth Amendment’s Equal
Protection and Due Process Clauses and seek equitable relief against the defendants
declaring Section 93-17-3(5) unconstitutional, and enjoining the defendants from
enforcing it. [Id., at pp. 30-37]. On September 2, the defendants moved to dismiss the
complaint for lack of a requisite “case or controversy” under Article III and as barred by
the Eleventh Amendment. [Motion to Dismiss, Docket No. 15; Defendants’ Mem.
Supporting Motion to Dismiss, Docket No. 16; Joinder in Motion to Dismiss, Docket No.
19]. The defendants also separately answered the complaint. [Attorney General Answer
and Defenses, Docket No. 17; DHS, DHS Executive Director, and Governor Answer and
Defenses, Docket No. 18].
In the meantime, on August 28, four individual plaintiffs – Phillips, Smith,
Garner and Hrostowski (the “movants”) – moved for preliminary injunctive relief
contending Section 93-17-3(5) must be interpreted as unconstitutional “as applied” to
them in potential future adoption suits in Mississippi chancery courts, and seeking a
preliminary injunction prohibiting the four defendants from “enforcing” Section 93-173(5) in those potential future adoption proceedings. [Motion for Preliminary
Injunction, Docket No. 13; Movants’ Mem. Supporting Motion for Preliminary
Injunction, Docket No. 14]. With their motion, movants Smith and Hrostowski
submitted sworn declarations reiterating and verifying their complaint allegations.
[Smith Declaration, Docket No. 13-1; Hrostowski Declaration, Docket No. 13-2].
Movants Smith and Hrostowski each assert a desire to adopt their spouses’
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biological child through a future “stepparent adoption” proceeding.3 Smith is a lifelong
Mississippian and, on August 1, 2013, she and Phillips married in Maryland. [Smith
Declaration at ¶¶ 2 & 5, Docket No. 13-1]. In 2007, Phillips gave birth to HMSP, now
eight years old, whom Smith wants to adopt. [Id., at ¶¶ 6 & 12]. Smith does not allege
she has ever filed an adoption petition regarding HMSP in any Mississippi chancery
court at any time. However, she believes that obtaining a home study is the first step
towards adopting HMSP. [Id., at ¶ 13]. Without providing details, Smith contends that
she and Phillips contacted social work agencies, and two private licensed clinical social
workers, on unidentified past dates. [Id.]. According to her declaration, those
unidentified persons told her and Phillips a home study would be “‘useless’ because of”
Section 93-17-3(5) and “several social workers told us that they would not even consider
performing a home study for us because they feared it would endanger the
organizations’ standing with the State of Mississippi.” [Id.].
Hrostowski is a Mississippi resident and, on June 17, 2014, she and Garner
married in Washington, D.C. [Hrostowski Declaration at ¶ 6, Docket No. 13-2]. Fifteen
years ago, Garner gave birth to HMG, whom Hrostowski wants to adopt. [Id., at ¶¶ 7 &
10]. Hrostowski does not claim she has ever filed an adoption petition regarding HMG
in any Mississippi chancery court at any time. Instead, Hrostowski asserts she and
Garner consulted an attorney approximately fifteen years ago and “were advised that,
because of [Section 93-17-3(5)], it would be impossible for me to adopt HMG under

3

“Stepparent adoption” is a common term for an adoption proceeding whereby married
persons seek to adopt their spouse’s child. See 2 C.J.S. ADOPTION OF PERSONS § 15 (2015) (“A
stepparent adoption is the adoption of a minor child by the spouse of a parent with the consent
of that parent.”).

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Mississippi law.” [Id., at ¶ 12].
ARGUMENT
Preliminary injunctive relief is extraordinary, and must be supported by a clear
entitlement to the relief sought when it would alter the status quo. Exhibitors Poster
Exch. Inc. v. National Screen Serv. Corp., 441 F.2d 560, 561-62 (5th Cir. 1971).
The movants have the burden to prove each of the following elements:
(1) a substantial likelihood they will prevail on the merits; (2) a substantial
threat that they will suffer irreparable injury if the injunction is not
granted; (3) their substantial injury outweighs the threatened harm to the
party to be enjoined; and (4) granting the preliminary injunction will not
disserve the public interest.
Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574
(5th Cir. 2012) (internal citation omitted).
I.

No substantial likelihood of prevailing on the merits.
A.

Movants lack Article III standing to obtain a preliminary
injunction against the defendants.

A preliminary injunction is never appropriate when the moving parties lack
Article III standing. See, e.g., Prestage Farms, Inc. v. Board of Sup’rs of
Noxubee County, Miss., 205 F.3d 265, 267-68 (5th Cir. 2000), reh’g en banc denied,
216 F.3d 1081 (vacating preliminary injunction for lack of standing and remanding for
dismissal). The defendants have already moved to dismiss the complaint since none of
the plaintiffs has standing to sue them.4 The movants’ particular alleged circumstances

4

The defendants incorporate their previously filed motion to dismiss and arguments
proving plaintiffs’, and these movants’, lack of standing, herein by reference. [Motion to
Dismiss, Docket No. 15; Defendants’ Mem. Supporting Motion to Dismiss, Docket No. 16;
Joinder in Motion to Dismiss, Docket No. 19].

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further highlight their lack of standing.
All three required Article III standing elements must be met before the Court
even considers awarding any injunctive relief against the defendants. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted); see also
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167,
185 (2000) (recognizing plaintiffs must independently establish standing for each
remedy sought). As to the first element, federal courts may only adjudicate claims based
on “concrete” injuries that are “actual” or “imminent,” not merely “conjectural” or
“hypothetical.” Lujan, at 560 (citations omitted). Further, when an injunction is
sought against future conduct that has not yet occurred, there must be proof that the
defendants’ allegedly unlawful conduct is sufficiently likely to occur. City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983).
The movants allege that Section 93-17-3(5) will prohibit them, as persons
married to spouses of the same gender, from adopting their spouses’ children in a future
Mississippi adoption proceeding. Their allegations do not establish a threatened future
injury proving they possess Article III standing. See Lofton v. Butterworth, 93
F.Supp.2d 1343, 1347 (S.D. Fla. 2000).
Indisputably, none of the movants alleges she has ever filed (or tried to file) an
adoption petition in any Mississippi chancery court. Their alleged “attempts” to pursue
adoptions underscore the speculative nature of their claimed injury. Movant
Hrostowski asserts an attorney told her fifteen years ago (when no United States
jurisdiction authorized same sex marriage) she could not adopt HMG in Mississippi.
[Hrostowski Declaration at ¶ 12, Docket No. 13-2]. A private attorney’s fifteen year old
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opinion fails to prove how a chancery court would decide Hrostowski’s present day or
future adoption action. Hrostowski’s alleged reliance on that outdated opinion, coupled
with a failure to actually attempt to pursue an adoption, does not establish the movants’
requisite likelihood of future injury necessary for Article III standing.
Movant Smith claims, without providing any details, that she and Phillips have
attempted to take the “first step” toward an adoption by obtaining a home study. [Smith
Declaration at ¶ 13, Docket No. 13-1]. Smith’s asserted inability to obtain a home study
at non-specific times in the past does not sufficiently demonstrate a likelihood of future
injury. When, and if, Smith actually files an adoption proceeding, the chancery court
can then order a home study. See Miss. Code Ann. § 93-17-11 (chancery court may order
a home study or other investigations and reports any time after an adoption petition is
filed). None of the movants has established the likelihood of threatened future injury at
the hands of the defendants, as required for Article III standing, and mandatory for a
preliminary injunction against them.
As to the second standing element, even assuming the movants’ burden of
proving a likely future injury has been met, there is no causal connection between the
movants’ asserted injury and any of the defendants’ alleged conduct. Lujan, 504 U.S.
at 560. None of the defendants can grant or deny the movants’ prospective adoptions.
None of the defendants has the authority to apply Section 93-17-3(5) in any adoption
proceeding the movants might file in the future. No causal connection exists between
the movants’ claimed future injury and anything the movants could credibly claim
defendants will do in the future. Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir.
2001). The movants’ putative future injury is simply not “‘fairly . . . trace[able] to the
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challenged action of the defendant, and not . . . th[e] result [of] the independent action
of some third party not before the court,’” Lujan, 504 U.S. at 560 (quoting Simon v.
Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976))
(alterations in original), and, therefore, fails the causation prong required for Article III
standing.
As for the third and final standing element, awarding the movants’ requested
preliminary relief against the defendants would not redress their claimed future injury.
Lujan, 504 U.S. at 561 (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the
injury will be redressed by a favorable decision.”) (quoting Simon, 426 U.S. at 38, 43);
Okpalobi, 244 F.3d at 426 (no redressability where defendants had no authority to
order what cases the state judiciary “may hear or not hear”). The defendants cannot
mandate that a Mississippi court grant or deny any adoption. A preliminary injunction
prohibiting the defendants from applying Section 93-17-3(5) in a future Mississippi
adoption proceeding would not redress their claimed injury. The movants would still be
facing their same alleged injury tomorrow if the Court preliminarily enjoins the
defendants today. Accordingly, at a minimum for a lack of redressability, the movants’
requested preliminary injunction against the defendants should be denied.
B.

The Eleventh Amendment bars preliminary injunctive relief
against the defendants.

A preliminary injunction against the defendants is also wholly inappropriate due
to their Eleventh Amendment immunity. See, e.g., Moore v. Louisiana Bd. of
Elementary and Secondary Educ., 743 F.3d 959, 962-64 (5th Cir. 2014) (abuse of
discretion to preliminary enjoin defendants entitled to Eleventh Amendment

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immunity). The Eleventh Amendment bars all the plaintiffs’ claims for the reasons the
defendants initially moved to dismiss their complaint.5 It likewise bars the movants’
requested preliminarily injunctive relief against the defendants.
Each of the defendants is entitled to Eleventh Amendment immunity prohibiting
the movants’ requested preliminary injunctive relief. Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100, 121 (1984). DHS is a state agency considered an
“arm of the state,” and the Eleventh Amendment absolutely bars the movants’ claims
against it. Blount v. Mississippi Dept. of Human Services, 2015 WL 59091, at *2
(S.D. Miss. Jan. 5, 2015); Williams v. Berry, 977 F.Supp.2d 621, 628 (S.D. Miss.
2013). The movants’ particular claims against DHS also fail to even state a claim since
the DHS is not a “person” for purposes of Section 1983. Will v. Michigan State
Dept. of Police, 491 U.S. 58, 71 (1989).
The Eleventh Amendment likewise precludes the movants’ preliminary injunctive
relief against the official capacity defendants: the Attorney General, the DHS Executive
Director, and the Governor. Pennhurst, 465 U.S. at 121. Ex Parte Young does not
strip these state officials of their immunity. That narrow exception to Eleventh
Amendment immunity applies only when plaintiffs sue the appropriate state officials, in
their official capacities, for allegedly committing an ongoing violation of federal law, and
seek prospective equitable relief against them. Aguilar v. Texas Dept. of Criminal
Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).

5

The defendants incorporate their previously filed motion to dismiss and
demonstration that the Eleventh Amendment bars the plaintiffs’ and movants’ claims, herein by
reference. [Motion to Dismiss, Docket No. 15; Defendants’ Mem. Supporting Motion to
Dismiss, Docket No. 16; Joinder in Motion to Dismiss, Docket No. 19].

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However, Ex Parte Young only applies in a challenge to a legislative
enactment if the state officers sued “have ‘some connection’ with the enforcement of the
act’ in question or [are] ‘specifically charged with the duty to enforce the statute’ and
[are] threatening to exercise that duty.” Morris v. Livingston, 739 F.3d 740, 746 (5th
Cir. 2014) (quoting Okpalobi, 244 F.3d at 414-15) (alterations in original). “The
required ‘connection’ is not ‘merely the general duty to see that the laws of the state are
implemented,’ but ‘the particular duty to enforce the statute in question and a
demonstrated willingness to exercise that duty.’” Id. (quoting Okpalobi, 244 F.3d at
416).
The required “connection” between the defendants and Section 93-17-3(5) does
not exist. The defendants are not charged with enforcing the statute. They cannot
dictate whether or how any judicial officers would adjudicate the movants’ putative
future adoption suits by interpreting and applying the statute, or not, in the
proceedings. Those simple facts rule out the narrow Ex Parte Young exception’s
potential application to the defendants in this case.
The movants have not identified, and they cannot identify, any specific authority
the Attorney General possesses to enforce Section 93-17-3(5) against anyone. His
general duties to enforce state law, argue the constitutionality of state laws in court, and
defend state officers, do not supply the required connection. Okpalobi, 244 F.3d at
416. Without any specific charge to enforce Section 93-17-3(5) under Mississippi law,
and given he cannot force a state court judge to apply, interpret, or overrule it, Ex
Parte Young does not operate against the Attorney General’s immunity in this case.
See McBurney v. Cuccinelli, 616 F.3d 393, 400-02 (4th Cir. 2010) (Ex Parte Young
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inapplicable to claims against state attorney general based on duty to provide advisory
opinions to state officials); Smith v. Beebe, 123 Fed. Appx. 261, 261-62 (8th Cir. 2005)
(Ex Parte Young did not authorize claim against state attorney general challenging
constitutionality of statute applied by state court judge in separate action); Children’s
Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416-17 (6th Cir. 1996)
(Ex Parte Young inapplicable to claim where state attorney general was not charged
with enforcing challenged state laws); Mendez v. Heller, 530 F.2d 457, 460 (2nd Cir.
1976) (state attorney general’s duty to support the constitutionality of challenged state
statutes, and his duty to defend actions in which the state is interested, insufficient to
invoke Ex Parte Young in challenge to a state domestic relations law).
The Governor’s general authority as the state’s chief executive likewise fails to
prove the requisite connection between him and Section 93-17-3(5) for Ex Parte
Young purposes. Neither Section 93-17-3(5), nor any other specific provisions of the
Code, specifically authorize the Governor to enforce the statute. Morris, 739 F.3d at
746 (Ex Parte Young inapplicable to claim against governor where challenged law did
not specifically task governor “with its enforcement, or suggest he will play any role at
all in its enforcement.”). There is no connection between the Governor’s executive
enforcement authority and Section 93-17-3(5). Ex Parte Young does not authorize
plaintiffs’ claims against him. Okpalobi, 244 F.3d at 416, 423-24; see also 1st Westco
Corp. v. School Dist. of Philadelphia, 6 F.3d 108, 113 (3rd Cir. 1993) (“General
authority to enforce the laws of the state is not sufficient to make government officials
the proper parties to litigation challenging the law.”); Shell Oil Co. v. Noel, 608 F.2d
208, 211 (1st Cir. 1979) (“The mere fact that a governor is under a general duty to enforce
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state laws does not make him a proper defendant in every action attacking the
constitutionality of a state statute.”); American Tradition Institute v. Colorado,
876 F.Supp.2d 1222, 1239 (D. Colo. 2012) (allegations that governor “publicly
supported” a challenged state law failed to justify apply Ex Parte Young against him).
Executive Director Berry, like the other defendants targeted for preliminary
injunctive relief, cannot dictate how a Mississippi judge adjudicates the movants’
potential future adoption suits, or whether the judge awards an adoption or not. He
cannot enforce Section 93-17-3(5) and does not enforce Section 93-17-3(5). The
movants cannot point to anything in the statute, any other provision of the Code, or any
DHS policy authorizing the Executive Director to grant or deny adoptions. Ex Parte
Young does not justify disregarding Executive Director Berry’s Eleventh Amendment
immunity. See Okpalobi, 244 F.3d at 414-17.
Additionally, to defeat the Eleventh Amendment with Ex Parte Young, it is not
enough to simply show a defendant has some authority to enforce a challenged law.
There also must be some credible threat the defendants will attempt to enforce the
statute at issue for a plaintiff to take advantage of Ex Parte Young. See Okpalobi,
244 F.3d at 417 (Ex Parte Young requires an ability to enforce a statute and
demonstrated willingness to enforce it); Long v. Van de Kamp, 961 F.2d 151, 152 (9th
Cir. 1992) (Eleventh Amendment barred suit, and no case or controversy existed where
there was no threat that Attorney General would pursue or encourage other officials to
purse violations of California vehicle code challenged by plaintiff); Kelley v.
Metropolitan County Bd. of Education, 836 F.2d 986, 990-91 (6th Cir. 1987), cert.
denied, 487 U.S. 1206 (1988) (Ex Parte Young inapplicable to defendants not
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threatening to enforce challenged law).
The movants have not identified and cannot point to any action or inaction of the
Attorney General, Governor, or Executive Director Berry demonstrating they have
attempted to enforce, or will attempt to enforce, Section 93-17-3(5) against them in their
putative future adoption proceedings, even wrongfully assuming the defendants
somehow have authority to do so. There is nothing the defendants have done, or
threatened to do, which precludes the movants from filing their adoption petitions in a
Mississippi state court, or otherwise seeking to obtain an adoption. Assuming the
movants could ever prove any of the defendants have the authority to apply Section 9317-3(5) or reject any petition for adoption, the fact that none of the defendants have ever
threatened to prevent the movants from seeking an adoption decree precludes their
reliance on Ex Parte Young.6
C.

Movants’ constitutional claims lack merit.

Even if Article III and/or the Eleventh Amendment do not prohibit the movants’
“as applied” challenge to Section 93-17-3(5) altogether, they still lack a substantial
likelihood of success on the merits. While the Supreme Court’s decisions in Obergefell
v. Hodges, 576 U.S. --- (June 26, 2015) and United States v. Windsor, 133 S.Ct.
2675 (2013) recently established that the federal and state governments must recognize
valid same sex marriages, and states must license them, over-extending those decisions
6

In addition to the connection requirement for applying Ex Parte Young, the doctrine
may only be invoked if the defendants are committing an ongoing violation of federal law. See
Green v. Mansour, 474 U.S. 64, 68 (1985); Pennhurst, 465 U.S. at 106, 121. Although
plaintiffs claim that Section 93-17-3(5) is the source of their claimed injuries, they fail to identify
any ongoing violation of federal law committed by any of the defendants. For that additional
reason, it would be inappropriate to adjudicate plaintiffs’ claims against the defendants here
under Ex Parte Young.

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to purportedly invalidate Section 93-17-3(5) through a preliminary injunction would be
entirely inappropriate.
Rational basis review applies to the movants’ Fourteenth Amendment claims.
Any other “heightened” standard of review is only appropriate where a law burdens a
fundamental right or targets a suspect class. E.C. ex rel. Chatman v. Mississippi
High Sch. Athletics Ass’n, 868 F.Supp.2d 563, 568 (S.D. Miss. 2012).
In contrast to the fundamental right to marriage at issue in Obergefell, it is
well-settled that Mississippi’s adoption laws confer a statutory privilege, not a
fundamental constitutional right to adopt protected by the Due Process or Equal
Protection Clauses. Martin v. Putnam, 427 So. 2d 1373, 1377 (Miss. 1983); see also
Lofton v. Sec’y of Dept. of Children & Family Servs., 358 F.3d 804, 811 (11th Cir.
2004), cert. denied, 543 U.S. 1081 (2005) (“Because there is no fundamental right to
adopt or be adopted, it follows that there can be no fundamental right to apply for
adoption.”);7 Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir. 1989) (“Because the
adoption process is entirely conditioned upon the combination of so many variables, we
are constrained to conclude that there is no fundamental right to adopt.”). Section 9317-3(5) likewise does not implicate any fundamental due process right to “family
integrity.” Lofton, 358 F.3d at 812-15. Furthermore, Section 93-17-3(5) does not target

7

As the movants’ complaint points out, six years after the Eleventh Circuit’s decision in
Lofton, a Florida appellate court held the adoption law at issue there violated the Florida
Constitution in Florida Dept. of Children & Families v. Adoption of XXG, 45 So. 3d 79,
81 (Fla. Dist. Ct. App. 2010). However, the Florida judiciary’s broad construction of its state
constitution does not diminish Lofton’s rationale or its application to the movants’ federal
constitutional claims raised here. See, e.g., Traylor v. State, 596 So. 2d 957, 961-63 (Fla.
1992) (recognizing Florida state courts’ authority to interpret Florida Constitution more broadly
than its federal counterpart).

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a suspect class as a classification based on sexual orientation. Lofton, 358 F.3d at 818;
Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).
In Lofton, the Eleventh Circuit illustrated the appropriate deferential review and
respect for legislative judgment applicable in this challenge when it affirmed the
constitutionality of Florida’s prohibition against homosexual adoption in 2004. See
Lofton, 358 F.3d at 818. “Rational-basis review, ‘a paradigm of judicial restraint,’ does
not provide ‘a license for courts to judge the wisdom, fairness, or logic of legislative
choices.’ . . . The question is simply whether the challenged legislation is rationally
related to a legitimate state interest.” Id. (quoting F.C.C. v. Beach
Communications, Inc., 508 U.S. 307, 313-14 (1993) and citing Heller v. Doe, 509
U.S. 312, 320 (1993)). The “legislative classification ‘is accorded a strong presumption
of validity,’” and “‘must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.’” Id. (quoting Heller, 509 U.S. at 319, 320). This holds true “‘even if the
law seems unwise or works to the disadvantage of a particular group, or if the rationale
for it seems tenuous.’” Id. (quoting Romer v. Evans, 517 U.S. 620, 632 (1996)).
In affirming Florida’s prohibition on adoption by homosexuals, the Eleventh
Circuit concluded that the statute
emphasizes a vital role that dual-gender parenting plays in shaping sexual
and gender identity and in providing heterosexual role modeling. Florida
argues that disallowing adoption into homosexual households, which are
necessarily motherless or fatherless and lack the stability that comes with
marriage, is a rational means of furthering Florida's interest in promoting
adoption by marital families
Lofton, 358 F.3d at 818-19.

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Here, the Mississippi Legislature has concluded that dual-gender parenting is
preferable and should be encouraged where possible by prohibiting adoption by samegender couples. The movants will likely contend that this rationale is undermined by
the State’s allowance of unmarried adults, including unmarried homosexual persons, to
adopt. The Eleventh Circuit rejected the same type of critiques of the adoption
prohibition likely to be offered by these movants when concluding that the “Supreme
Court repeatedly has instructed that neither the fact that a classification may be
overinclusive or underinclusive nor the fact that a generalization underlying a
classification is subject to exceptions renders the classification irrational.” Id., at 822823. While “that the classification may be imperfect, that imperfection does not rise to
the level of a constitutional infraction.” See id., at 823. For the same reasons Lofton
rejected the plaintiffs’ Fourteenth Amendment challenges to Florida’s statute, the
movants lack a substantial likelihood of success on the merits here.
II.

No equitable factors justify the movants’ requested preliminary
injunctive relief.
A.

No threat of irreparable injury in the absence of preliminary
injunctive relief against the defendants.

Assuming the movants could prove a substantial likelihood of success on the
merits, they still must independently demonstrate they will be irreparably harmed if the
Court does not enter a preliminary injunction against the defendants. The movants
misleadingly suggest that the denial of a constitutional right always constitutes “per se”
irreparable harm justifying a preliminary injunction. [Movants’ Mem. at pp. 5-6, Docket

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No. 14].8 On a preliminary injunction inquiry, “[t]he ‘decision regarding irreparable
injury to the plaintiff must not be based on the ultimate issue of the constitutionality of
the statute.’” Jackson Women’s Health Organization v. Currier, 878 F.Supp.2d
714, 716 (S.D. Miss. 2012) (quoting Manning v. Hunt, 119 F.3d 254, 264 (4th Cir.
1997)). The relative likelihood of the movants’ chances of success on the merits, or lack
thereof, does not affect their independent burden on a preliminary injunction inquiry to
“demonstrate that irreparable injury is likely in the absence of an injunction.” Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in
original) (collecting authorities).
A preliminary injunction against the defendants would not remedy the movants’
claimed injury, or prevent any of their claimed immediate and irreparable harms. Only
a final adoption decree entered by a Mississippi chancery court would provide the
movants with the “scores of concrete and important benefits and rights,” [Movants’
Mem. at p. 3, Docket No. 14], to which they claim entitlement. None of the defendants
can award the movants an adoption decree, or prevent them from obtaining an adoption
decree. None of the defendants has ever threatened to prevent them from obtaining an
adoption decree. “It would make little sense for a court to conclude that a plaintiff has
shown irreparable harm when the relief sought would not actually remedy that harm. A

8

The movants cite cases such as Elrod v. Burns, 427 U.S. 347, 373 (1976) for their
mistaken proposition. In Burns, the Court stated “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” Burns, 427 U.S.
at 373 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)). This is not a
First Amendment case to which the movants’ proposed “per se” rule might apply. See, e.g.,
Siegel v. LePore, 234 F.3d 1163, 1177-78 (11th Cir. 2000) (collecting authorities and rejecting
the contention that a putative “violation of constitutional rights always constitutes irreparable
harm”).

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plaintiff may be harmed by all sorts of things, but the irreparable harm considered by
the court must be caused by the conduct in dispute and remedied by the relief sought.”
Sierra Club v. United States Dept. of Energy, 825 F.Supp.2d 142, 153 (D. D.C.
2011).
This is not a case where the movants’ claimed harms can be alleviated by
preliminarily enjoining a defendant Circuit Clerk to perform ministerial duties such as
processing and issuing a marriage license application. Neither is it a case where
preliminarily enjoining a defendant state regulator or district attorney from
commencing an enforcement action will preserve the status quo by preventing a medical
clinic from closing. Enjoining the defendants to do anything, or not to do anything, will
not relieve movants of their alleged immediate irreparable injuries. For that most basic
reason, the movants have failed to carry their burden of proving irreparable harm in the
absence of their requested preliminary injunction against the defendants.
B.

The balance of harms weighs against awarding movants’
requested preliminary injunctive relief targeting the
defendants.

While preliminarily enjoining the defendants from “enforcing” Section 93-17-3(5)
would not cure the movants’ claimed immediate and irreparable harms, their requested
injunctive relief will potentially harm the defendants. The movants ambiguously seek
“an immediate order preliminarily enjoining the relevant government officials from
enforcing the Mississippi Adoption Ban as it applies to them.” [Movants’ Mem. at p. 2,
Docket No. 14]. Preliminary injunctions, and any injunctions for that matter, must state
their “terms specifically” and “describe in reasonable detail . . . the act or acts restrained
or required.” Fed. R. Civ. P. 65(d)(1). Furthermore, injunctions only operate against
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“parties,” their “officers, agents, servants, employees, and attorneys,” and “persons who
are in active concert or participation” with them. Fed. R. Civ. P. 65(d)(2); see also
Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1304 (Fed. Cir. 2012) (“It is well-recognized
that courts may not enter injunctions against persons or entities that were not party to
the litigation before them.”); Leu v. Int’l Boundary Comm’n, 605 F.3d 693, 695 (9th
Cir. 2010) (It is a “‘basic principle of law that a person who is not a party to an action is
not bound by the judgment in that action.’” (quoting Restatement (Second) of
Judgments §§ 34, 62 cmt. a (1982)); Speetjens v. Larson, 401 F.Supp.2d 600, 611
(S.D. Miss. 2005) (“Pursuant to Rule 65 of the Federal Rules of Civil Procedure, this
Court does not have the authority to enjoin one who is not a party to the action.”).
Entering the movants’ requested preliminary injunction would put the
defendants at risk of contempt for the action or inaction of persons well-beyond their
control, and not before the Court. Compared to the lack of any alleged irreparable harm
the movants face due to the defendants conduct, the potential harm to defendants due to
the movants’ sought after injunction cuts against awarding a preliminary injunction.
C.

Movants’ requested preliminary injunction would disserve the
public interest.

As to the final factor, it is true that, assuming the movants are somehow likely to
succeed on the merits here, “[g]enerally, the public interest is served by enjoining the
enforcement of a law that likely violates the Constitution.” Colorado Christian
Univ. v. Sebelius, 51 F.Supp.3d 1052, 1064 (D. Colo. 2014), appeal docketed, No. 141329 (10th Cir. Aug. 19, 2014) (citing Chamber of Commerce of U.S. v.
Edmondson, 594 F.3d 742, 771 (10th Cir. 2010)). Nevertheless, federal courts still

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“should pay particular regard for the public consequences” when “employing the
extraordinary remedy of injunction.” Winter, 555 U.S. at 24. Given the circumstances
here, the Court should cautiously consider the potential harm to the public interest on
account of the movants’ ambiguous and overbroad requested relief. Enjoining “all
relevant government officials from enforcing” Section 93-17-3(5), apparently including
non-parties and/or unidentified officials over whom the defendants lack any authority,
may create unnecessary confusion and friction between the Court, the parties, and thirdparties that would undoubtedly disserve the public interest.
CONCLUSION
For the reasons set forth above, and presented in their previously filed motion to
dismiss, the defendants respectfully request that the Court enter an order denying the
movants’ requested preliminary injunction.
THIS the 11th day of September, 2015.
Respectfully submitted,
JIM HOOD, in his official capacity
as Mississippi Attorney General
By:

S/Justin L. Matheny
Justin L. Matheny (Bar No. 100754)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
Counsel for Attorney General Jim Hood
AND
MISSISSIPPI DEPARTMENT OF HUMAN
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SERVICES, RICHARD BERRY, in his official
capacity as Executive Director of the
Mississippi Department of Human Services,
and PHIL BRYANT, in his official capacity as
Governor of the State of Mississippi
By:

S/Tommy Goodwin
Tommy Goodwin (Bar No. 100791)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
tgood@ago.state.ms.us
Counsel for MDHS, Executive Director
Richard Berry, and Governor Phil Bryant

CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been filed with the Clerk of
Court using the Court’s ECF system and thereby served on all counsel of record who
have entered their appearance in this action to date.
THIS the 11th day of September, 2015.
S/Justin L. Matheny
Justin L. Matheny

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