14-60837 Mississippi Brief

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Document: 00512877792
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Date Filed: 12/19/2014
NO. 14-60837
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT;
ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB,
Plaintiffs-Appellees
v.
PHIL BRYANT, in his Official Capacity as Governor of the State of
Mississippi; JIM HOOD, in his Official Capacity as Mississippi
Attorney General,
Defendants-Appellants
________________________________________________
On Appeal from the United States District Court for the
Southern District of Mississippi, Northern Division,
Civil Action No. 3:14cv818
________________________________________________
APPELLANTS BRIEF
________________________________________________
Justin L. Matheny (MS Bar # 100754)
Paul E. Barnes (MS Bar # 99107)
Office of the Mississippi Attorney General
550 High Street, Suite 1200
Jackson, MS 39201
Phone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
pbarn@ago.state.ms.us
Counsel for Defendants-Appellants
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NO. 14-60837
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT;
ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB,
Plaintiffs-Appellees
v.
PHIL BRYANT, in his Official Capacity as Governor of the State of
Mississippi; JIM HOOD, in his Official Capacity as Mississippi
Attorney General,
Defendants-Appellants
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following
listed persons and entities as described in the fourth sentence of Rule
28.2.1 have an interest in the outcome of this case. These
representations are made in order that the Judges of this Court may
evaluate possible disqualification or recusal.
1. Campaign for Southern Equality, Rebecca Bickett, Andrea
Sanders, Jocelyn Pritchett, and Carla Webb, Plaintiffs-Appellees.
2. Roberta A. Kaplan, Andrew J. Ehrlich, Jaren Janghorbani,
Joshua D. Kaye, Warren Stramiello, Jacob H. Hupart, and Paul, Weiss,
Rifkind, Wharton & Garrison, LLP, counsel for Plaintiffs-Appellees.
3. Robert B. McDuff, Sybil C. Byrd, Jacob W. Howard, and the
i
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law firm of McDuff & Byrd, counsel for Plaintiffs-Appellees.

4. Diane E. Walton, and the Walton Law Office, counsel for
Plaintiffs-Appellees.
5. Rita Nahlik Silin, Dianne Herman Ellis, and the law firm of
Silin & Ellis, counsel for Plaintiffs-Appellees.
6. Mississippi Governor Phil Bryant and Mississippi Attorney
General Jim Hood, Defendants-Appellants.
7. Barbara Dunn, Hinds County, Mississippi Circuit Clerk,
Defendant below.
8. Pieter Teeuwissen and Anthony Simon, Simon & Teeuwissen,
PLLC, counsel for for Defendant Dunn.
9. Justin L. Matheny and Paul E. Barnes, Mississippi Attorney
Generals Office, counsel for Defendants-Appellants.
S/Justin L. Matheny
Justin L. Matheny
ii
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STATEMENT REGARDING ORAL ARGUMENT

This appeal involving constitutional challenges to Mississippis
marriage laws has been calendared for oral argument on January 9,
2015.
iii
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT REGARDING JURISDICTION. . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND RELEVANT FACTS. . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II.
Baker v. Nelson Forecloses the Campaigns Claims.. . . . . . . . . . . 10
III. Mississippis Marriage Laws are Rationally Related to

Legitimate State Interests Consistent with the Fourteenth
Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
IV. The Supreme Courts Animus Doctrine does not Render
Mississippis Marriage Laws Invalid. . . . . . . . . . . . . . . . . . . . . . . . 30
V. Mississippis Marriage Laws do not Contravene any
Established Fundamental Due Process Right. . . . . . . . . . . . . . . . . 36
VI. The District Court Correctly Ruled Out the Campaigns
Claim to Heightened Equal Protection Scrutiny.. . . . . . . . . . . . . . 42
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VII. The Equitable Injunction Factors do not Support the

Preliminary Injunction which Effectively Granted the
Campaigns Full and Final Relief on the Merits. . . . . . . . . . . . . . . 46
A. Lack of Immediate Threat of Irreparable Injury.. . . . . . . . . . . 46
B. The Balance of Harms and Public Interest Factors
Favor the State.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
CERTIFICATE OF ELECTRONIC COMPLIANCE. . . . . . . . . . . . . . . 54
CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . 55
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TABLE OF AUTHORITIES
Cases
Page
Agostini v. Felton,
521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Andersen v. King County,
138 P.3d 963 (Wash. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Baker v. Nelson,
191 N.W. 2d 185 (Minn. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Baker v. Nelson,
490 U.S. 810 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6, 11-18
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bluefield Water Assn, Inc. v. City of Starkville, Miss.,
577 F.3d 250 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Campaign for Southern Equality v. Bryant,
--- F.3d ---, 2014 WL 6845414 (5th Cir. Dec. 4, 2014).. . . . . . . . . . 51
Canal Authority of State of Florida v. Callaway,
489 F.2d 567 (5th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Cervantes v. Guerra,
651 F.2d 974 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 12, 24, 44
vi
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City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Collins v. Harker Heights,
503 U.S. 115 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Conde-Vidal v. Garcia-Padilla,
--- F.Supp.3d ---, 2014 WL 5361987 (D. P.R. Oct. 21, 2014). . . . . 12
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Davis v. Prison Health Servs.,
679 F.3d 433 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014). . . . . . . . . . . . . . . . . . . . . 12, 24, 31, 45
Department of Agriculture v. Moreno,
413 U.S. 528 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23
Heller v. Doe,
509 U.S. 312 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-20, 23
Hernandez v. Robles,
855 N.E. 2d 1 (N.Y. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Hicks v. Miranda,
422 U.S. 332 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jackson v. Abercrombie,
884 F.Supp.2d 1065 (D. Hawaii 2012). . . . . . . . . . . . . . . . . . . 12, 24
vii
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Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . 12, 24
Lake Charles Diesel, Inc. v. General Motors Corp.,
328 F.3d 192 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Lawrence v. Texas,
539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
LeClerc v. Webb,
419 U.S. 405 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Lofton v. Secy of Dept. of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Loving v. Virginia,
388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Mandel v. Bradley,
432 U.S. 173 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Massachusetts v. U.S. Dept. of Health and Human Services,
682 F.3d 1 (1st Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Maynard v. Hill,
125 U.S. 190 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Merritt v. Attorney General,
2013 WL 6044329 (M.D. La. Nov. 14, 2013). . . . . . . . . . . . . . . . . 12
viii
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Michigan v. U.S. Army Corps. of Engineers,

667 F.3d 765 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Newdow v. Bush,
355 F.Supp.2d 265 (D. D.C. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 49
Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc.,
762 F.2d 1374 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott,
748 F.3d 583 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott,
734 F.3d 406 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Quince Orchard Valley Citizens Assn, Inc. v. Hodel,
872 F.2d 75 (4th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Robicheaux v. Caldwell,
2 F.Supp.3d 910 (E.D. La. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 24
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Romer v. Evans,
517 U.S. 620 (1996). . . . . . . . . . . . . . . . . . . . . . 14, 30, 32-34, 43-44
Scheiber v. Dolby Labs, Inc.,
293 F.3d 1014 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ix
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Schuette v. Coal. to Defend Affirmative Action,

134 S.Ct. 1623 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Shanks v. City of Dallas, Texas,
752 F.2d 1092 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 24
Teague v. Lane,
489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Texas Medical Providers Performing Abortion Services v. Lakey,
667 F.3d 570, 574 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 46
Turner v. Safley,
482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
United States v. Carver,
260 U.S. 482 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Windsor,
133 S.Ct. 2675 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
University of Texas v. Camenisch,
451 U.S. 390 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Voting for America, Inc. v. Steen,
732 F.3d 382 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Washington v. Glucksberg,
521 U.S. 702 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-40
West Virginia State Bd. of Education v. Barnette,
319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37
Wilson v. Ake,
354 F.Supp.2d 1298 (M.D. Fla. 2005). . . . . . . . . . . . . . . . . . . . . . 12
Windsor v. United States,
699 F.3d 169 (2nd Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Zablocki v. Redhail,
434 U.S. 374 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Constitutions, Statutes, and Laws
An Act Regulating the Solemnization of Marriages,
Part IV, Ch. XII, Section 5 in Toulmins Statutes of
the Mississippi Territory (1807). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Miss. Code Ann. 93-1-1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4, 35
Miss. Const., art. 14, 263A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4, 35
28 U.S.C. 1257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. 1292(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Const., amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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STATEMENT REGARDING JURISDICTION

Pursuant to 28 U.S.C. 1292(a)(1), this Court has appellate
jurisdiction to review the district courts November 25, 2014 order
granting a preliminary injunction. Defendants-Appellants Mississippi
Governor Phil Bryant and Attorney General Jim Hood (collectively the
State) timely filed their Notice of Appeal on November 26, 2014.
ROA.280. The Complaint cites 28 U.S.C. 1331, 1343(a)(3), and
1343(a)(4) as the bases for federal jurisdiction. ROA.16.
STATEMENT OF THE ISSUE
Did the district court erroneously void Mississippis laws allowing
only for marriage between a man and woman as invalid under the
Fourteenth Amendment by entering the preliminary injunction?
STATEMENT OF THE CASE AND RELEVANT FACTS
Mississippi law has recognized marriage as a relationship
between a man and a woman since prior to statehood. See An Act
Regulating the Solemnization of Marriages, Part IV, Ch. XII, Section 5
in Toulmins Statutes of the Mississippi Territory at 369 (1807).
In
2004, through one of the States constitutional amendment procedures,
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86% of Mississippi voters approved Article 14, Section 263A of the

Mississippi Constitution in the November general election. Section
263A provides
Any marriage between persons of the same gender is
prohibited and null and void from the beginning. Any
marriage between persons of the same gender that is valid
in another jurisdiction does not constitute a legal or valid
marriage in Mississippi.
Miss. Const., art. 14, 263A. The States Constitution is consistent
with Mississippi Code Section 93-1-1, amended by the Legislature a few
years earlier in 1997, which provides
Marriage may take place and may be valid under the laws of
this State only between a man and a woman. A marriage in
another State or foreign jurisdiction between persons of the
same gender, regardless of when the marriage took place,
may not be recognized in this State and is void and
unenforceable under the laws of this State.
Miss. Code Ann. 93-1-1(2).
The Plaintiffs-Appellees here include the Campaign for Southern
Equality, a North Carolina-based advocacy organization, Rebecca
Bickett and Andrea Sanders, a couple seeking to get married under
Mississippi law, and Jocelyn Pritchett and Carla Webb, a couple legally
married under the laws of Maine seeking recognition of their marriage
2
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under Mississippi law (collectively the Campaign).

On October 20, 2014, the Campaign filed its Complaint asserting
Constitution Section 263A and Code Section 91-1-1(2) are void under
the Fourteenth Amendments Equal Protection and Due Process
Clauses. ROA.13. Also that day, the Campaign moved for a
preliminary injunction which would effectively grant full and final
relief on the merits. ROA.37.
On October 22, the district court conducted a telephonic
conference informally requested by the Campaigns counsel. ROA.10.
The district court set a hearing for the Campaigns motion three weeks
from the conference and established a briefing schedule permitting the
State to file a response. ROA.10. On November 10, the State
responded to the Campaigns motion and also filed a contingent motion
to stay any adverse ruling pending appeal. ROA.164; ROA.207. On
November 12, the district court heard argument on both outstanding
motions. ROA.355.
On November 25, the district court granted the Campaigns
motion, and granted and denied in part the States motion. ROA.280.
The court held that Mississippis marriage laws fail under equal
3
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protection rational basis review and the Supreme Courts animus

doctrine; alternatively, that the laws implicate a fundamental right to
marriage for purposes of Fourteenth Amendment scrutiny; and the
Campaign fully satisfied the four requisites for preliminary injunctive
relief. ROA.280-351. The district court accordingly enjoined
Constitution Section 263As and Code Section 91-1-1(2)s enforcement
state-wide, but stayed the injunctions effective date for fourteen days
allowing the State to seek a further stay from this Court and/or the
Supreme Court. ROA.350-351.
On November 26, the State noticed its appeal, ROA.280., and
shortly thereafter, moved this Court to entirely stay the district courts
injunction pending appeal. On December 4, a motions panel granted
the requested stay. Also, at the Campaigns insistence, the panel set an
abbreviated briefing schedule and calendared the States appeal for
argument on January 9, 2015, together with appeals involving identical
legal issues with respect to similar Texas and Louisiana laws.
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SUMMARY OF THE ARGUMENT

The policy issue of whether Mississippi should adopt same sex
marriage should be resolved through the democratic process, not in
federal court through an expedited preliminary proceeding or
otherwise. The district court below ultimately erred in concluding
otherwise, relying on severely flawed analyses along the way to striking
down Mississippis marriage laws with its preliminary injunction.
The district courts conclusions first belie the rule that lower
courts must follow Supreme Court precedent directly on point. Baker v.
Nelson, 490 U.S. 810 (1972) forecloses the Campaigns claims. Baker
has never been expressly or implicitly overruled, and it is inappropriate
to guess whether it has by looking to selected doctrinal developments.
But even still, developments in the law only prove Baker remains good
law. United States v. Windsor, 133 S.Ct. 2675 (2013) makes clear
Congress cannot interfere with states decisions to embrace same sex
marriage through the democratic process, or not. Baker makes clear
courts must respect those decisions as well, unless and until, the
Supreme Court determines otherwise.
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After discarding Baker, the district court wrongly concluded

Mississippis marriage laws fail to pass constitutional muster under the
rational basis test the only applicable standard. Rational basis
review under the Fourteenth Amendment requires deference to
legislative classifications, and does not mandate a precise fit between
legitimate governmental objectives and the means calculated to
accomplish them, or authorize a court to substitute courtroom factfinding for legislative decision-making. That is why the States means
of furthering its legitimate interest in creating stable family
environments withstands rational basis review. Making marriage
available to opposite sex couples, and encouraging those couples that
procreate together to stay together and form stable family
environments for the purposes of child-rearing, may not be the only
means to accomplish the states goal. But it certainly is a rational
means to reach a legitimate end that satisfies true rational basis
review.
Moreover, Mississippians decision to maintain the states
traditional marriage laws also further the legitimate interest in
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proceeding cautiously on an issue of fundamental social change, as well

as preserving the related legitimate interest in that social change is
better cultivated through democratic consensus. That is not preserving
tradition for traditions sake, but rather is consistent with
Mississippis, and each states, right to determine its own social policy
in an area of almost exclusive state authority as recently confirmed
by the Courts analysis and holding in Windsor. The district court
misapplied rational basis review in dismissing any and all conceivable
rational bases for Mississippis marriage laws, wrongfully focusing
instead on alternatives the State could have chosen.
The district court also wrongfully invoked the Supreme Courts
animus doctrine, applicable only to enactments motivated solely by
unjust hostility towards a particular group, against Mississippis
marriage laws. Conflating statutory interpretation principles with
Windsors fact-finding about Congresss enactment of the Defense of
Marriage Act does not demonstrate Mississippians preserved its
traditional marriage laws solely on account of animus. The district
court overreached in its creative attempt to prove animus, and its
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conclusion should be reversed.

The district court also erred in concluding that Mississippis
marriage laws must meet strict scrutiny by fashioning a right to same
sex marriage as fundamental for substantive due process purposes.
Even though the court did not apply strict scrutiny to reach its ultimate
holding, its fundamental right analysis still should be overturned.
Fundamental rights include only those rights deeply rooted in our
Nations history and tradition and a right to same sex marriage has no
place in this countrys history or tradition. The district court failed to
carefully describe the right at issue in conducting its fundamental
rights analysis, and stretched prior Court precedents too far in holding
the right to same sex marriage is encompassed by a general, unlimited,
and ever-evolving fundamental right to marry.
The district court correctly held that Circuit precedent forbids the
Campaigns claim that Mississippis marriage laws target a suspect or
quasi-suspect class and should thereby be subjected to heightened
equal protection scrutiny. That undeniably correct decision and the
lack of any factual record below foreclose further consideration of that
claim in the context of this appeal.
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The district courts multiple errors of law warrant reversal of the

preliminary injunction. However, even if not, the injunctive relief
awarded tantamount to granting the Campaign full and final relief
without a trial on the merits should still be overturned. The record
discloses no immediate and irreparable injury suffered by the
Campaign, a fact highlighted by the self-imposed delay in suing the
State and then pressing for instant relief. The balance of harms and
public interest factors also favor the State. The interests shared by all
Mississippians in maintaining stability and continuity in the States
marriage laws trump any asserted need for immediate injunctive relief
prior to a final judgment.
ARGUMENT
I.
Standard of Review.
A party seeking a preliminary injunction striking down state laws
must prove four elements: (1) a substantial likelihood that [the

movant] will prevail on the merits; (2) a substantial threat that [the
movant] will suffer irreparable injury if the injunction is not granted;
(3) that the movants threatened injury outweighs the threatened
harm to the party whom he seeks to enjoin; and (4) that granting the
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preliminary injunction will not disserve the public interest. Bluefield

Water Assn, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th
Cir. 2009). This extraordinary remedy . . . should not be granted
unless the party seeking it has clearly carried the burden of persuasion
on all four requirements. Id. at 253.
On an appeal from a preliminary injunction, this Court reviews
the lower courts legal conclusions de novo, factfindings for clear error,
and the ultimate decision to enjoin enforcement of [state laws] for
abuse of discretion. Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott, 748 F.3d 583, 589 (5th Cir. 2014) (citing
Voting for America, Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013)).
Further, particularly close scrutiny should be applied to the
preliminary injunction awarded by the district court since it is
generally inappropriate for a federal court at the preliminary
injunction stage to give a final judgment on the merits. University of
Texas v. Camenisch, 451 U.S. 390, 395 (1981) (collecting authorities).
II.
Baker v. Nelson Forecloses the Campaigns Claims.

Only the Supreme Court enjoys the prerogative of overruling its
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prior decisions. Policy opinions of state or lower federal courts,

litigants, and commentators do not carry that authority. Binding, longstanding, and still standing Supreme Court precedent precludes the
Campaigns claims and compels reversal of the district courts
preliminary injunction.
In Baker v. Nelson, the Minnesota Supreme Court rejected Due
Process and Equal Protection arguments for striking down a state law
defining marriage as solely between persons of the opposite sex. 191
N.W. 2d 185 (Minn. 1971). The Minnesota court held that a right to
marry, without regard to the sex of the parties, is not a fundamental
right protected by the Due Process Clause. Id. at 186-87. It likewise
held the states choice of a classification of persons authorized to
marry including opposite sex couples did not amount to irrational or
invidious discrimination or otherwise offend the Equal Protection
Clause. Id. at 187. The Baker plaintiffs exercised their automatic right
of appeal under then-existing 28 U.S.C. 1257(2).
The United States Supreme Court unanimously dismissed the
appeal for want of a substantial federal question. Baker, 490 U.S. 810
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(1972). The dismissal, even though decided summarily, constituted a

disposition on the merits with binding precedential effect. Hicks v.
Miranda, 422 U.S. 332, 344 (1975). Summary dismissals prevent
lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions, Mandel v. Bradley,
432 U.S. 173, 176 (1977), and must be given full precedential effect by
lower courts. Cervantes v. Guerra, 651 F.2d 974, 981 (5th Cir. 1981).
Many federal and state courts in the past ten years, including the
past few months, have properly accorded Baker its due effect and held
it precludes Fourteenth Amendment challenges to state laws defining
marriage.1 Meanwhile, others, like the district court below, ROA.291295., have sidestepped Baker, crafting a different approach to the
See DeBoer v. Snyder, 772 F.3d 388, 399-403 (6th Cir. 2014); Citizens for
Equal Protection v. Bruning, 455 F.3d 859, 870-71 (8th Cir. 2006); Conde-Vidal v.
Garcia-Padilla,--- F.Supp.3d ---, 2014 WL 5361987, at *10 (D. P.R. Oct. 21, 2014);
Merritt v. Attorney General, 2013 WL 6044329, at *2 (M.D. La. Nov. 14, 2013);
Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1086-88 (D. Hawaii 2012), vacated as
moot on account of legislative action, 2014 WL 5088199 (9th Cir. Oct. 10, 2014);
Wilson v. Ake, 354 F.Supp.2d 1298, 1304-05 (M.D. Fla. 2005); accord Kitchen v.
Herbert, 755 F.3d 1193, 1231 (10th Cir. 2014) (Kelly, J., concurring in part and
dissenting in part) (arguing the import of Baker to this case is clear: neither due
process nor equal protection bar states from defining marriage as between one man
and one woman, or require states to extend marriage to same-gender couples);
Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d 1, 8 (1st Cir.
2012) (holding Baker is binding precedent barring claims based on an alleged
constitutional right to same sex marriage).
1
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established rules of orderly decision. Those lower court decisions

incorrectly rejected Baker. Relying on doctrinal developments a
shorthand description for guesswork tailored to justify a desired
conclusion cannot render Baker any less controlling in 2014 than it
was in 1972.
From the outset, we know doctrinal developments do not
authorize circumventing precedents directly on point. The Supreme
Court has admonished lower courts not to rely on that practice. If a
precedent of this Court has direct application in a case, yet appears to
rely on reasons rejected in some other line of decisions, lower courts
should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions. Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v.
Felton, 521 U.S. 203, 237 (1997). Lower courts lack authority to
conclude that the Court has overruled its opinions by implication using
a doctrinal developments theory. Scheiber v. Dolby Labs., Inc., 293
F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.) (we have no authority to
overrule a Supreme Court decision no matter how dubious its reasoning
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strikes us, or even how out of touch with the Supreme Courts current
thinking the decision seems).
But even if the gamesmanship of disregarding precedent through
doctrinal developments is not prohibited altogether, Baker has not
been cast out by any such developments. The Supreme Courts same
sex rights precedents tell a different story. Neither Romer v. Evans,
517 U.S. 620 (1996) nor Lawrence v. Texas, 539 U.S. 558 (2003), either
expressly or implicitly mentioned Baker or overruled it. Romer
invalidated a state law barring communities from passing laws that
protect citizens from sexual orientation discrimination. 517 U.S. at
633-36. Later, Lawrence invalidated a criminal anti-sodomy law and
explicitly disclaimed it had anything to do with whether states must
give formal recognition to same sex relationships. 539 U.S. at 578.
Most telling, until very recently, courts had never relied on Romer or
Lawrence, or their rationale, as doctrinal developments or otherwise,
to strike down state marriage laws in their wake.2
Sweeping Baker aside based on doctrinal developments really
See note 1, above.

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boils down to a single question: whether the Supreme Court explicitly

or implicitly overruled Baker last year in Windsor. Plainly the answer
is no. Windsor invalidated a portion of the Defense of Marriage Act of
1996 effectively prohibiting federal recognition of same sex marriages
authorized by some states for purposes of federal statutory benefits.
The Windsor majority disavowed overruling Baker by specifying its
opinion and its holding are confined to . . . lawful marriages
voluntarily permitted by some of the states. Id. at 2696.
Moreover, Windsor did not implicitly do what it expressly
disclaimed. The Court invalidated the federal law because it took a
dignity and status of immense import from same sex couples that
New Yorks choice to extend the definition of marriage gave them, and
illegitimately intruded upon New Yorks authority in doing so. Id. at
2692-96. Baker bolsters the right of states to choose not to extend the
definition of marriage as New York and some other states have chosen.
The cases do not conflict. Windsor supports Baker rather than
authorizing lower courts to ignore it.
A couple of additional points regarding the arguments against
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Baker accepted by the district court below are noteworthy. A favored

tactic of same sex marriage advocates is calling Baker dead in the
water because the Bipartisan Legal Advisory Group (who defended
DOMA after the Department of Justice abdicated its duty to do so)
unsuccessfully argued Baker applied to the federal law at issue in
Windsor. ROA.292-293. Windsor did not even mention Baker,
therefore, so the argument goes, that silence rendered Baker irrelevant
to the wave of attacks on state laws regulating the definition of
marriage that has followed Windsor.3
The Windsor silence arguments flaw is that precisely the
opposite conclusion also follows from its premise. By failing to mention
Baker explicitly, or contradict it implicitly, Windsor reinforced Baker.
Under Windsor, the federal government cannot intrude on the states
historic and essential authority to define the marital relation, 133
If Windsors silence on issues raised by its parties measures a legal theorys

validity, then Windsor definitively rejected the Campaigns claim that laws
allegedly disadvantaging homosexuals as a qualified suspect class are subject to
heightened scrutiny under the Equal Protection Clause. Windsor spent the first
sixteen pages of her merits argument asserting the Campaigns same suspect
class theory as grounds for striking down DOMA. Brief on the Merits for
Respondent Edith Schlain Windsor at 17-32, No. 12-307 (U.S. Feb. 26, 2013). By
remaining silent on that point, Windsor must have loudly signaled that theory lacks
merit.
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S.Ct. at 2692, and must, as it had before DOMA, rely on state

definitions of marriage rather than attempting to define marriage itself
which constitutes a federal intrusion on state power. Id. At the same
time, by leaving Baker unmentioned by name and uncontradicted by
rationale, every state retains its well-established authority to choose its
own definition of marriage. Congress must respect states choices on
account of Windsor when it comes to same sex marriage. Federal
courts must likewise respect those choices pursuant to Baker, unless
and until the Supreme Court says different.
Viewpoints regarding the continued viability of Baker also should
not be influenced by the Supreme Courts decisions to deny certiorari
review of the Tenth, Fourth and Seventh Circuits recent failures to
follow Baker. The Court has repeatedly admonished that lower courts
should not treat denials of certiorari as speaking to the merits of a case.
Teague v. Lane, 489 U.S. 288, 296 (1989) (As we have often stated, the
denial of a writ of certiorari imports no expression of opinion upon the
merits of the case.) (quoting United States v. Carver, 260 U.S. 482, 490
(1923)). Academics, arm-chair prognosticators, and others with an
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agenda on either side of the same sex marriage debate are free to
speculate what certiorari denials may mean. Federal courts have a
different obligation. Baker presently dictates their conclusions. On de
novo review, this Court should hold that binding precedent prohibits
the Campaigns claims altogether and reverse the preliminary
injunction.
III. Mississippis Marriage Laws are Rationally Related to
Legitimate State Interests Consistent with the Fourteenth
Amendment.
Mississippis marriage laws do not implicate a suspect class or
interfere with a fundamental right, and are thus only subject to equal
protection review under the well-established rational basis test which
simply asks whether a law bears a rational relation to some legitimate
governmental end. Heller v. Doe, 509 U.S. 312, 319-20 (1993). Rational
basis review is the most deferential constitutional standard requiring
judges only to identify plausible reasons for a law rather than second
guessing enactments by litigating the facts undergirding their passage.
Id. at 320. The inquiry must remain guided by deference to legislative
decision-making and faithfully adhere to several principles consistently
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recognized by the Supreme Court:

Rational-basis review is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices.
***
Nor does it authorize the judiciary [to] sit as a
superlegislature to judge the wisdom or desirability of
legislative policy determinations in areas that neither affect
fundamental rights nor proceed along suspect lines.
***
For these reasons, a classification neither involving
fundamental rights nor proceeding along suspect lines is
accorded a strong presumption of validity.
***
Such a classification cannot run afoul of the Equal
Protection Clause if there is a rational relationship between
the disparity of treatment and some legitimate
governmental purpose.
***
Further, a legislature that creates these categories need not
actually articulate at any time the purpose or rationale
supporting its classification.
***
Instead, a classification 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.
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***
A State, moreover, has no obligation to produce evidence to
sustain the rationality of a statutory classification. [A]
legislative choice is not subject to courtroom factfinding and
may be based on rational speculation unsupported by
evidence or empirical data.
Id. at 319-20 (internal citations omitted). Judicial deference is the
watchword because substituting the policy judgments of judges for
those of legislators threatens to usurp legislative authority. Id. at 319;
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (rational
basis review only seeks to determine whether any conceivable rationale
exists for the enactments while judicial deference to legislative choices
preserve[s] to the legislative branch its rightful independence and
ability to function); LeClerc v. Webb, 419 F.3d 405, 421 (5th Cir. 2005)
(the central feature of rational basis review is deference to legislative
policy decisions embodied in courts reluctance to judge the wisdom,
fairness, logic, or desirability of those choices). These reasons are why
laws based on rational speculation unsupported by evidence or
empirical data satisfy rational basis review. Beach Communications,
508 U.S. at 315 (emphasis added).
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Traditional marriage laws limiting the institution to relationships

between one man and one woman have existed for centuries, and
perhaps millenia, to further several governmental interests existing
within an arena almost exclusively dedicated to the states. One such
long-standing interest is promoting strong and stable family
relationships among those people who reproduce naturally for the
benefit of children. The states interest is born out of the undeniable
reality that when a man and woman have sex, their act may or may not
produce children. When it does, whether that result was intentional or
not, it creates a governmental interest, shared by society-at-large, in
seeing that the two people who created the child provide for the child.
One way long-proven by experience to address the interest is
ensuring the man and woman enter into a lasting marital relationship
or remain in their already existing marital relationship. Incentivizing
couples to do so through state subsidies and benefits is a valid means of
furthering those objectives. Opposite sex partners do not need an
incentive to have sex whether calculated to produce children or not.
However, that does not mean states cannot encourage opposite sex
partners, the only biological pairing that can create children on its own,
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to create and maintain stable relationships to benefit their children.

The Campaign and the district court below, like other litigants
and some courts applying something more than a genuine rational
basis analysis of state marriage laws, fault Mississippis marriage laws
by pointing out that a definition of marriage limited to a man and
woman relationship renders the laws under- and over-inclusive.
Under-inclusive because the traditional definition excludes same sex
couples; over-inclusive because it permits opposite sex couples who
choose not to have children, or cannot have children, to marry while
denying recognition of marital status to same sex couples. Those points
make good policy arguments founded on undeniable general
propositions that same sex couples are just as capable of sharing in
love, affection, and commitment and just as capable of raising children
and providing stable family environments for them as opposite sex
couples.
At the same time, however, under- and over-inclusive policy
arguments are considerations for legislative floor debates or ballot
initiative campaigns, not reasons for denying that a plausible rational
basis for legislative line-drawing exists and satisfies the most basic
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level of Fourteenth Amendment scrutiny. Legislative decisions are

permitted, as they must be, to draw the policy line somewhere. When
they do, the Constitution permits the decision even when there is an
imperfect fit between means and ends or where the classification is
not made with mathematical nicety. Heller, 509 U.S. at 321.
Moreover, since lawmakers may rely on rational speculation
unsupported by evidence or empirical data, Beach Communications,
508 U.S. at 315, to draw the lines, after-the-fact courtroom
examinations designed to prove a law does not go far enough, or goes
too far, are not a valid means to refute a policy decision under rational
basis review. See, e.g., Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 314-16 (1976) (even though evidence may show a state
mandatory retirement law was not the best means to accomplish the
states purpose, equal protection does not prohibit imperfect
classifications).
Upon judicial rational basis review, the only appropriate question
to ask is whether the line has been drawn where one can rationally
conclude it promotes a legitimate government interest in classifying
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marriage as a status between a man and a woman, and subsidizing it to

create an incentive for couples that create children to enter into
marriage, maintain the marriage, and raise their children in it. When
courts ask that question about state marriage laws like Mississippis,
faithfully applying true rational basis review, the answer is yes. See
DeBoer, 772 F.3d at 404-08; Bruning, 455 F.3d at 867-68; Robicheaux v.
Caldwell, 2 F.Supp.3d 910, 918-20 (E.D. La. 2014); Jackson, 884
F.Supp.2d at 1103-19; Wilson, 354 F.Supp.2d at 1308-09; Andersen v.
King County, 138 P.3d 963, 982 (Wash. 2006) (plurality); Standhardt v.
Superior Court, 77 P.3d 451, 462-63 (Ariz. Ct. App. 2003); accord Bostic
v. Schaefer, 760 F.3d 352, 391-93 (4th Cir. 2014) (Niemeyer, J.,
dissenting); Kitchen, 755 F.3d at 1236-40 (Kelly, J., concurring in part,
dissenting in part). Other courts, like the district court below, reach
different results when they ask different questions for any number of
calculated reasons to produce a no answer. Asking those different
questions is fundamentally not rational basis review, and therefore
fails to justify striking down laws classifying marriage as between a
man and a woman.
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Other rational justifications for Mississippis marriage laws

beyond what can be variously labeled responsible procreation or
otherwise also suffice to carry the day on rational basis review.
Mississippians legitimately acted cautiously and rationally in declining
to alter the States traditional man-woman view of marriage accepted
by nearly everyone, until only very recent times, as well as by
preserving the States related legitimate interest in safeguarding that
social change is better cultivated through democratic consensus.
Opting not to expand the definition of marriage when it appeared other
states might change their own social policy regarding that issue in
recent years, or even after they had done so, is not illegitimately
preserving tradition for traditions sake. It is consistent with the
rights each state has in our federalist system of government.
A key benefit of our federalist system is that a state can choose its
own social policy in areas like domestic relations. Other states can
make the same choices, different choices, and all states can re-evaluate
their own choices, if and when the state deems necessary. With regard
to revisiting the issue of defining marriage, it has been less than
twenty years since the concept of expanding the institution of marriage
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beyond its traditional meaning even seemed possible, and really only
about a decade since expanding the definition became a reality. At
those times, as it remains now, it is not irrational for other states like
Mississippi not to immediately follow-suit and opt to wait and see.
The Supreme Courts decision last Summer in Windsor bolsters
these rational bases for Mississippis decisions to maintain its
traditional marriage laws. Windsor confirmed New York had a valid
right to choose how to best decide the issue of whether or not to adopt
same-sex marriage. The Court struck down federal DOMAs Section 3
because it usurped New Yorks historic and essential authority to
define the marital relation. Windsor, 133 S.Ct. at 2692.
Approximately two years earlier, New York had decided to
recognize same-sex marriage, and Windsor emphasized that the states
actions were without doubt a proper exercise of [New Yorks] sovereign
authority within our federal system. Id. At the same time, the Court
did not find, or even intimate, that it would not have been an equally
proper exercise of . . . sovereign authority had New York decided to
retain its previous man-woman definition of marriage as it had until
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2011. Any notion that New York could not have rationally chosen
either course would contradict Windsor, which highlighted that [t]he
dynamics of state government in the federal system are to allow the
formation of consensus respecting such a far reaching matter. Id.; see
also id. at 2689 (New York enlarge[d] its marriage definition [a]fter a
statewide deliberative process that enabled its citizens to discuss and
weigh arguments for and against same-sex marriage). Windsor did not
set up a paradigm permitting New Yorks citizens to reach one
consensus on marriage, while denying Mississippis citizens the right to
legitimately reach a different one.
Windsor also explained why a state can and may choose to
proceed with caution before recognizing same-sex marriage. States,
which have a rightful and legitimate concern in the marital status of
persons domiciled within [their] borders, id. at 2691, rightly
understand[] that marriage is more than a routine classification for
purposes of certain statutory benefits. Id. at 2692. Enlarging the
traditional definition of marriage, Windsor explained, would involve a
far-reaching legal acknowledgment and demand both the
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communitys considered perspective on the historical roots of the

institution of marriage and its evolving understanding of the meaning
of equality. Id. at 2692-93. The Court was thus keenly aware that
[t]he responsibility of the States for the regulation of domestic
relations is an important indicator of the substantial social impact the
States classifications have in the daily lives and customs of its people.
Id. at 2693. Federal DOMAs Section 3 was an anomaly, and could not
stand, because it usurped that traditional state responsibility. See id.
(noting DOMAs unusual deviation from the usual tradition of
recognizing and accepting state definitions of marriage). At the same
time, Windsor confirmed that states are authorized to determine the
shape of marriage, and, whether their citizens decide to shape it as
New York did in 2011, or as Mississippi did in 2004, they act rationally
in doing so.
Contrary to Windsor, the Campaign and district court below both
argued that Mississippi has forfeited the right to choose its course
democratically because Mississippians will never, or not soon enough,
change their mind to make what some believe is the only correct
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decision about whether to expand the traditional view of marriage.

ROA.336-339. The argument essentially assumes faulty premises,
disproved in the next sections of this brief, that the Supreme Courts
animus doctrine applies to the States marriage laws, and/or that a
right to same sex marriage is a fundamental right for purposes of the
Fourteenth Amendment. Meanwhile, rational basis review does not
justify making subjective courtroom predictions about what the future
holds based upon generalizations about the electorate at best, and
stereotypes about voters at worst. The Supreme Court, writing
through Windsors author Justice Kennedy, has recently explained that
the sensitivity and divisive nature of an issue does not justify removing
the issue from voters because [d]emocracy does not presume that some
subjects are either too divisive or too profound for public debate.
Schuette v. Coal. to Defend Affirmative Action, 134 S.Ct. 1623, 1638
(2014). Rational basis review does not justify presuming only one
viewpoint on an issue is correct, and eliminating the issue from the
democratic process based on a subjective lack of faith in elected
representatives or the electorate to correctly decide it. For that reason,
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and all the others explained above and below, this Court should reverse
the district courts preliminary injunction.
IV.
The Supreme Courts Animus Doctrine does not Render

Mississippis Marriage Laws Invalid.
On a few occasions, the Supreme Court has invalidated laws
subject to traditional equal protection rational basis review when the

legislation is inexplicable by anything but animus toward the class it
affects. Romer, 571 U.S. at 632 (emphasis added). The Courts animus
doctrine has variously been applied to laws solely born of animosity
toward the class of persons affected, id. at 634, based entirely on an
irrational prejudice, City of Cleburne v. Cleburne Living Center, 473
U.S. 432, 450 (1985), or enacted out of a bare congressional desire to
harm a politically unpopular group. Department of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973). The test is not whether anyone
might subjectively believe the law was driven by some animus,
irrational prejudice, or desire to harm anyone. Rather, the doctrine
attempts to distill the actual motivation behind a challenged law, and
justifies invalidating the law if hostility toward a particular group was
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the only motivation for it.4

The Campaign accused Mississippis voters and legislators of
enacting Mississippis marriage laws entirely out of animus, and based
that claim upon cherry-picked quotes and citations to newspaper
articles discussing those laws. ROA.71-73. The district court
apparently correctly rejected that approach but crafted a different
argument to reach the same wrong conclusion. The court concluded
Mississippis marriage laws fail under the animus doctrine by
collapsing the exercise into generic statutory interpretation, ROA.339.
(reasoning the Supreme Courts interpretation of a federal law is
highly persuasive to understand a similar state law.) (quoting Singer
& Singer, Statutes and Statutory Construction 51:6 (7th ed. 2012)),
and then imputing the Supreme Courts findings regarding Congresss
motivation in Windsor directly to Mississippians and their legislators.
ROA.339-40. Both the Campaigns and the district courts animus
contentions are wrong.
4
The overwhelming majority of courts evaluating state same sex marriage

laws in the past year have rejected and/or ignored animus-based arguments
whether or not finding the laws suffer from some other Fourteenth Amendment
infirmity. See, e.g., DeBoer, 772 F.3d at 408-10; Bishop v. Smith, 760 F.3d 1070,
1097 & n.3 (10th Cir. 2014) (Holmes, J., concurring) (collecting authorities).
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There are undoubtedly many good faith reasons individual

Mississippi legislators and citizens may have voted for or against
continuing to adhere to a man and woman definition of marriage. It
may be difficult, if not impossible, to prove or disprove those
motivations with admissible evidence. But, certainly a few newspaper
clippings do not suffice. For at least that reason, the Campaigns
indictment that Mississippis marriage laws were enacted out of pure
animus fails.
The district courts animus argument warrants closer attention
but also lacks validity. The Supreme Court has identified two ways a
law signals its exclusive motivation was impermissible animus. One
exists when a law imposes a broad and novel deprivation of rights upon
a disfavored group. Romer is the example. The Colorado law at issue
there eliminated a wide range of previously existing legal rights by
imposing a sweeping and comprehensive . . . change in legal status,
Romer, 571 U.S. at 627, a broad and undifferentiated disability on a
single named group, id. at 632, identified and denied persons
established protections across the board, id. at 633, and did so in a
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manner unprecedented in our jurisprudence since it was not within

our constitutional tradition to enact laws of this sort. Id.
The Mississippi laws at issue are nothing like the law at issue in
Romer. Unlike the broad and sweeping scope of the Colorado law in
Romer, Mississippis marriage laws focus solely on the single subject of
marriage. The States marriage laws also can never be deemed
unprecedented or aimed at previously existing legal rights. The laws
simply reaffirmed what, until only recently, had been universally
accepted as the definition of state-sanctioned marriage everywhere and
that many still, in good faith, believe in to this day. See Windsor, 133
S.Ct. at 2689; Hernandez v. Robles, 855 N.E. 2d 1, 8 (N.Y. 2006) (Until
a few decades ago, it was an accepted truth for almost everyone who
ever lived, in any society in which marriage existed, that there could be
marriages only between participants of different sex. A court should
not lightly conclude that everyone who held this belief was irrational,
ignorant or bigoted.). The Romer approach to anything but animus
does not condemn Mississippis marriage laws.
The Courts second animus category involves legislation falling
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outside the historical authority of the lawmaking sovereign to eliminate

privileges a group might be entitled otherwise. Windsor represents
that category. But like Romer, the Windsor approach is ill-suited for
concluding Mississippis marriage laws were enacted solely on account
of animus.
Before it enacted DOMA, and throughout the Nations history,
Congress deferred to the states definitional authority over marriage.
Windsor, 133 S.Ct. at 2691. DOMA rejected that history and tradition,
and could only be described as an enactment of unusual character,
Id. at 2692 (quoting Romer, 571 U.S. at 633), which constituted an
unusual deviation from that usual tradition of recognizing and
accepting state definitions of marriage. Id. at 2693. Congress violated
principles of federalism by infringing upon traditional state authority,
and in doing so, DOMA eliminated privileges otherwise available where
states chose to expand their own marriage definitions.
The unusual character of DOMA, and the federalism violation
Congress committed by enacting it, led to its downfall under the
animus doctrine. Those elements are missing from Mississippis
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marriage laws. There is nothing unusual about a state exercising its

authority over public policy on a subject traditionally devoted to it. See
Maynard v. Hill, 125 U.S. 190, 205 (1888) (Marriage, as creating the
most important relation in life, as having more to do with the morals
and civilization of a people than any other institution, has always been
subject to the control of the Legislature. That body prescribes the age
at which parties may contract to marry, the procedure or form essential
to constitute marriage, the duties and obligations it creates, its effects
upon the property rights of both, present and prospective, and the acts
which may constitute grounds for its dissolution.). Mississippis
legislators did not exceed the scope of that lawmaking authority in
passing Code Section 93-1-1(2). Mississippians did not either when
they approved Mississippi Constitution Section 263A.
DOMA and Mississippis marriage laws obviously both define
marriage as between a man and woman. That surface similarity
cannot obscure the reasons the Windsor majoritys fact-finding does not
warrant condemning Mississippians of having acted solely out of
animus, much less tarring them with the brush of bigotry. Windsor,
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133 S.Ct. at 2696 (Roberts, C.J., dissenting). The district courts

application of the animus doctrine to Mississippis marriage laws was
both erroneous and inappropriate, and should be reversed.
V.
Mississippis Marriage Laws do not Contravene any

Established Fundamental Due Process Right.
The Campaigns asserted right to same sex marriage does not
qualify as a fundamental right protected by the Fourteenth

Amendment. The district court erred in seeing it differently, even
though it disclaimed reliance on a fundamental right finding, or
applying strict scrutiny under the Due Process Clause against
Mississippis marriage laws to preliminarily enjoin them.
The Fourteenth Amendments Due Process Clause precludes a
State from depriving any person of life, liberty, or property, without
due process of law. U.S. Const., amend. XIV, 1. The substantive
component of the Due Process Clause protects individual rights that
are important enough to be classified as fundamental.
Individual rights attain fundamental status in one of two ways.
Certain rights are so fundamental that they have been adopted by
democratic means and expressly included in the Constitution. West
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Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943)
(The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal
principles to be established by the courts.). Other rights are so
fundamental being objectively, deeply rooted in this Nations history
and tradition and so rooted in the traditions and conscience of our
people as to be ranked as fundamental as to be implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if
they were sacrificed, Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997) (citations omitted) that those rights cannot be impaired by
Congress or the states through the democratic process.
The Constitutions text does not explicitly prescribe a
fundamental right to marriage, much less a right to same sex marriage.
That leaves the Glucksberg judicial interpretation route as the only
means of determining whether any purported right to same sex
marriage qualifies as deserving of substantive due process protection.
A two-pronged analysis governs the inquiry. The court must
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begin its substantive due process analysis with a careful description

of the asserted fundamental liberty interest, Glucksberg, 521 U.S. at
721 (citations omitted), and then ask whether the interest is
objectively, deeply rooted in this Nations history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed. Id. at 720-21 (citations
omitted). A right to same sex marriage is not objectively, deeply
rooted in this Nations history and tradition. Indisputably, same sex
marriage is a recent development with no historical or traditional roots.
Windsor, 133 S.Ct. at 2689 (It seems fair to conclude that, until recent
years, many citizens had not even considered the possibility that two
persons of the same sex might marry); accord id. at 2715 (Alito, J.,
dissenting) (It is beyond dispute that the right to same-sex marriage is
not deeply rooted in this Nations history and tradition.). A faithful
Glucksberg analysis leads to the only correct conclusion. The
Campaigns sought-after right to same sex marriage is not fundamental
for Fourteenth Amendment purposes.
The Campaigns contrary argument, entirely premised upon
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recasting its newly-proposed right to same sex marriage abstractly as a

generic fundamental right to marry, has at least three fundamentally
fatal flaws. First, Glucksberg strictly prohibits the Campaigns
abstraction methodology. Courts cannot transform a claimed right
lacking historical or traditional roots into one that does by more
broadly and generally defining the right. Glucksberg admonished
courts to exercise the utmost care whenever we are asked to break
new ground in [the area of substantive due process], lest the liberty
protected by the Due Process Clause be subtly transformed into the
policy preferences of the Members of this Court. Glucksberg, 521 U.S.
at 720. Therefore, courts must carefully formulat[e] the interest at
stake in substantive-due-process cases. Id. at 722. Carefully
describing the claimed right at issue ensures the Nations history,
legal traditions, and practices . . . provide the crucial guideposts for
responsible decisionmaking, id. at 721 (quoting Collins v. Harker
Heights, 503 U.S. 115, 125 (1992)), that would be threatened by
analyzing the claimed right at too abstract a level. See id. at 722
(rejecting claimants suggested description of asserted right to assisted
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suicide as being one to die, or to choose how to die, or to control

ones final days, instead analyzing right more narrowly as one to
commit suicide which includes itself a right to assistance in doing so).
Broadly defining the right at issue generally as a right to marry
instead of specifically as a right to same sex marriage directly violates
Glucksbergs careful description requirement as well as the reasons
that requirement exists.
Second, even if analyzing the Campaigns claimed fundamental
right as a generalized right to marry is not foreclosed by Glucksbergs
careful description requirement, the right to marry applied in preGlucksberg cases such as Loving v. Virginia, 388 U.S. 1 (1967), Zablocki
v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78
(1987) does not encompass a right to same sex marriage. It is true the
Court spoke of a right to marry broadly in those cases rather than
narrowly-defining the rights at issue as a right of interracial couples to
marry, a right of dead-beat dads to marry, or a right of prisoners to
marry. But that does not mean the right recognized in those instances
has no discernable limits, or includes the recognition of same sex
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unions inconceivable at the time.

When the Court endorsed the claimants right to marriage in
Loving, Zablocki, and Turner, in each instance it used that terms
accepted meaning as had been understood for centuries. Each case
involved a couple asserting a right to enter into a traditional
marriage as between a man and woman. The decisions merely
confirm the opposite sex claimants possessed a right to marry within
the then-well-accepted definition of marriage. Decades after-the-fact,
Loving, Zablocki, and Turner do not support the proposition that the
Court established an unqualified and evolving right to marry that
now extends to relationships beyond the meaning of the term as it was
understood by the Court, regardless of how much some may now wish
to redefine it.
Third, if a broad fundamental right to marry extending to
everyone exists as the Campaign claims, and the district court held,
then each and every present state regulation impacting marriage would
only survive if it meets unforgiving strict scrutiny review. That cannot
be true. Otherwise, there would already be no shortage of case law
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applying strict scrutiny to state laws prohibiting polygamy, setting the

minimum age of the participants, defining the acceptable degree of
consanguinity between the parties, and establishing conditions for
dissolving a marriage. But that shortfall demonstrates exactly why no
universal fundamental right to marry exists and precisely why the
Campaigns generalization fails.
Same sex marriage presents an important public policy issue.
The right to same sex marriage is important to many people on both
sides of the issue. However, like many other important rights grounded
in public policy, the right to same sex marriage is not fundamental for
purposes of the Fourteenth Amendment. The district courts opinion
and alternative conclusion deeming a right to same sex marriage
fundamental under the Due Process Clause, which thereby subjects
Mississippis marriage laws to strict scrutiny, is erroneous and should
be overturned.
VI.
The District Court Correctly Ruled Out the Campaigns

Claim to Heightened Equal Protection Scrutiny.
Apart from its alternative fundamental due process rights
conclusion, the district court properly resisted the Campaigns

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contention that heightened scrutiny under the Equal Protection Clause

applies to Mississippis marriage laws because they target a discrete
suspect or quasi-suspect class lacking political power. The district
court held binding Circuit precedent forecloses that claim. ROA.309.
Undoubtedly, that conclusion was correct.5
It has been nearly forty years since the Supreme Court has
recognized a new suspect or quasi-suspect class entitled to
heightened equal protection scrutiny. The Court has always resolved
state law classifications allegedly discriminating on the basis of sexual
orientation by application of rational basis review under the Equal
Protection Clause, see Windsor, 133 S.Ct. at 2693; Romer, 571 U.S. at
624. This Court likewise exclusively applies rational basis review to
laws allegedly burdening persons on the basis of sexual orientation.
The district court also raised an issue of whether classifications in

Mississippis marriage laws should be considered gender-based or sexual
orientation-based classifications, presumably since reading the laws as genderbased classifications might be an alternative way to reach the goal of applying
higher equal protection scrutiny. ROA.307-309. The district court did not give us
its conclusion, ROA.309., but Mississippis marriage laws are not directed solely at
either gender and do not disproportionately affect one gender or the other
evidencing any gender-based animus. That rules out the gender-based
classification theory, along with other reasons not requiring further exploration on
this appeal since the district court did not apply the theory.
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Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (Neither the
Supreme Court nor this court has recognized sexual orientation as a
suspect classification [or protected group]; nevertheless, a state violates
the Equal Protection Clause if it disadvantages homosexuals for
reasons lacking any rational relationship to legitimate governmental
aims.) (alteration in original) (citing Romer, 517 U.S. at 631-32). An
overwhelming majority of other Circuits do as well. See Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v. Gates, 528 F.3d
42, 61 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 111314 & n.9 (10th Cir. 2008); Bruning, 455 F.3d at 865-66; Lofton v. Secy of
Dept. of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004);
Veney v. Wyche, 293 F.3d 726, 731-32 (4th Cir. 2002). But see
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-81 (9th
Cir. 2014); Windsor v. United States, 699 F.3d 169, 180-85 (2nd Cir.
2012).
The foregoing points, and the district courts recognition that the
Campaigns push for heightened equal protection scrutiny is foreclosed
for now, leave little to be said on this appeal about the district courts
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quasi-suspect class argument following its holding. ROA.309-329.

However, two interrelated issues must be noted.
First, the district courts argument for recognizing sexual
orientation classifications as affecting a quasi-suspect class, and
thereby subject to heightened equal protection scrutiny, is not just
foreclosed by this Courts precedent. It is also foreclosed by the record
on this preliminary injunction appeal. The district court made out its
case for recognizing a new quasi-suspect class with a scholarly
analysis of factors examined by some courts over the years on that
subject. All the facts bolstering the analysis came solely from books,
newspaper articles, fact-findings in other cases, internet sites, and
treatises. None of that is evidence, much less evidence submitted by
the parties.
Second, in a related sense, the factors used by federal courts to
determine whether a group qualifies as a suspect or quasi-suspect
class are not as well-settled as the district court expressed. See, e.g.,
DeBoer, 772 F.3d at 413-16. Neither is the weight each factor in the
analysis should be afforded, or the outcome. Id. Those issues need not
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be sorted through on this appeal given the district courts appropriate

conclusion that precedent forecloses the Campaigns heightened
scrutiny argument.
VII. The Equitable Injunction Factors do not Support the
Preliminary Injunction which Effectively Granted the
Campaigns Full and Final Relief on the Merits.
The Campaigns Fourteenth Amendment claims lack merit, much
less any likelihood of success. In and of itself, that warrants reversal of
the district courts preliminary injunction since [a]n absence of
likelihood of success on the merits is sufficient to make the district
courts grant of a preliminary injunction improvident as a matter of
law. Texas Medical Providers Performing Abortion Services v. Lakey,
667 F.3d 570, 574 (5th Cir. 2012) (quoting Lake Charles Diesel, Inc. v.
General Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003)). Additionally,
if for any reason the other remaining equitable preliminary injunction
factors must be examined on this appeal, the Campaign has also failed
to meet its burden as to each of them.
A.
Lack of Immediate Threat of Irreparable Injury.
The purpose of a preliminary injunction is always to prevent
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irreparable injury so as to preserve the courts ability to render a

meaningful decision on the merits. Canal Authority of State of Florida
v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). Accordingly, a movant
must prove a substantial threat that he will suffer irreparable harm if
the injunction is not granted. Shanks v. City of Dallas, Texas, 752
F.2d 1092, 1097-98 (5th Cir. 1985) (internal citations omitted). The
question is not whether organizational or individual plaintiffs are
suffering, or will suffer, some injury warranting declaratory relief after
a full trial on the merits. Rather, for a preliminary injunction, the
movants alleged injury must be impending and irreparable.
The evidentiary record here consisting only of two individual
plaintiffs declarations does not establish irreparable harm justifying
a preliminary injunction tantamount to full and final relief. The
declarations identify some benefits and potential cost-savings, such as
joint tax filing privileges, associated with legally recognized marriages
the plaintiffs do not currently enjoy. ROA.40-48. The testimony also
identifies costs plaintiffs have incurred, or they cannot afford,
associated with things like estate planning, trusts, and medical powers
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of attorney. ROA.40-48. Cost expenditures and the lack of entitlement

to certain benefits may demonstrate an injury. But they have not
shown any irreparable injury which can only be rectified or prevented
by immediately effective full and final relief.
Furthermore, analyzing the Campaigns claimed irreparable
injury must also account for the timing of this lawsuit. Delay in
seeking relief is significant when evaluating an alleged irreparable
injury. Quince Orchard Valley Citizens Assn, Inc. v. Hodel, 872 F.2d
75, 80 (4th Cir. 1989) (Since an application for preliminary injunction is
based upon an urgent need for the protection of [a] Plaintiffs rights, a
long delay in seeking relief indicates that speedy action is not
required.) (alteration in original) (quotation omitted); see also
Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 788 (7th Cir.
2011) (the likelihood of irreparable harm takes into account how
urgent the need for equitable relief really is); Oakland Tribune, Inc. v.
Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985) (Where no
new harm is imminent, and where no compelling reason is apparent,
the district court was not required to issue a preliminary injunction
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against a practice which has continued unchallenged for several

years.); Newdow v. Bush, 355 F.Supp.2d 265, 292 (D. D.C. 2005)
(delay implies a lack of urgency and irreparable harm).
One of the individual plaintiffs says she and her partner applied
for a Mississippi marriage license from the Hinds County Circuit Clerk
in March 2014 and were denied. ROA.42. The other couple married in
Maine in September 2013 but apparently has never sought formal
recognition of their marriage in Mississippi. ROA.46. They did not file
this lawsuit until many months after those events on October 20, 2014.
The district court dismissed that delay by speculating that the
Campaign might have been waiting until it thought the law was more
favorable. ROA.342. That does not explain why the Campaign could
wait months, as a tactical matter, for a better legal environment, but
then argue every passing day carries an irreparable injury requiring
instant relief. The Campaign claimed injury, but did not prove
immediate, irreparable injuries only remediable without any further
delay by the extraordinary relief of a preliminary injunction having
state-wide application. That lack of imminent, irreparable injury,
coupled with the Campaigns delay in seeking expedited relief,
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demonstrates the Campaign failed to meet its burden of proof on the

irreparable injury factor.
B.
The Balance of Harm and Public Interest Factors

Favor the State.
The last two equitable factors also belie the district courts
preliminary injunction. The balance of harms and public interest
favors the State as shown by the Campaigns lack of immediate
irreparable injury compared to, for example, the States and publics
interests and potential irreparable harm associated with a preliminary
state-wide injunction prohibiting enforcement of its long-standing
marriage laws. See Planned Parenthood of Greater Texas Surgical
Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (recognizing a
state would suffer the irreparable harm of denying the public interest
in the enforcement of its laws if preliminarily enjoined). As this Court
recognized in granting the States motion for stay pending appeal, the
State, the Campaign and the public share a strong interest in
maintaining continuity and stability in the States marriage laws, and
preventing the potential confusion and inevitable disruption that
would be created if the States laws were voided by an immediately
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effective preliminary injunction, subject to later reinstatement at a

trial or on appeal. Campaign for Southern Equality v. Bryant, --- F.3d --, 2014 WL 6845414, at *2 (5th Cir. Dec. 4, 2014). Those considerations
demonstrate the district court should not have entered a preliminary
injunction, at least based on equitable considerations, and instead
required the Campaign to seek and obtain its full and final requested
relief on the merits after a full trial.
CONCLUSION
The district courts November 25, 2014 preliminary injunction
should be reversed. The Campaigns Fourteenth Amendment claims
fail as a matter of law. Otherwise, and at a minimum, it has failed to
satisfy the other well-established equitable factors necessary for
preliminary injunctive relief.
This the 19th day of December, 2014.
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Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
By:
S/Justin L. Matheny
Justin L. Matheny (MS Bar # 100754)
Paul E. Barnes (MS Bar # 99107)
Office of the Mississippi Attorney General
550 High Street, Suite 1200
Jackson, MS 39201
Phone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
pbarn@ago.state.ms.us
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CERTIFICATE OF SERVICE
Undersigned counsel certifies that this brief has been filed via the
Courts CM/ECF System and thereby served on counsel of record
registered to receive electronic notification of filings, and also served on
the following persons via US Mail, properly addressed and postage
prepaid, or overnight mail service where indicated:
Roberta A. Kaplan (via overnight mail)
Andrew J. Ehrlich
Jacob H. Hupart
Jaren Janhorbani
Joshua D. Kaye
Warren Stramiello
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Robert B. McDuff
Sibyl C. Byrd
McDuff & Byrd
767 North Congress
Jackson, MS 39202
Diane E. Walton
Walton Law Office
168 S. Liberty Street
Asheville, NC 28801
Dianne Herman Ellis

Rita Nahlik Silin
Silin & Ellis
1161 Robinson Street
Ocean Springs, MS 39564
S/Justin L. Matheny
Justin L. Matheny
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CERTIFICATE OF ELECTRONIC COMPLIANCE

Undersigned counsel certifies that this brief has been transmitted
to the Clerk of the United States Court of Appeals for the Fifth Circuit
via the courts CM/ECF document filing system. Counsel further
certifies that the required privacy redactions have been made, Fifth
Cir. R. 25.2.13, the electronic submission is an exact copy of the paper
document, Fifth Cir. R. 25.2.1, and the document has been scanned
with the most recent version of Symantec Endpoint Protection and is
free of viruses.
S/Justin L. Matheny
Justin L. Matheny
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type Volume Limitations,
Typeface Requirements, and Type Style Requirements.
1. This brief complies with the type-volume limitations of
Fed.R.App.P. 32(a)(7)(B) because the brief contains less than 9,555
words, excluding the parts of the brief exempted by Fed.R.App.P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of
Fed.R.App.P. 32(a)(6) because the brief has been prepared in a
proportionally spaced typeface using WordPerfect and Century
Schoolbook 14 pt. font.
3. The undersigned understands that a material
misrepresentation in completing this certificate or circumvention of the
type-volume limits may result in this Court striking the brief and
imposing sanctions.
S/Justin L. Matheny
Justin L. Matheny
55

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14-60837 Mississippi Brief

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Case: 14-60837

Date Filed: 12/19/2014

Date Filed: 12/19/2014

Date Filed: 12/19/2014

law firm of McDuff & Byrd, counsel for Plaintiffs-Appellees.

Date Filed: 12/19/2014

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 12/19/2014

Baker v. Nelson Forecloses the Campaigns Claims.. . . . . . . . . . . 10

III. Mississippis Marriage Laws are Rationally Related to

Date Filed: 12/19/2014

VII. The Equitable Injunction Factors do not Support the

Date Filed: 12/19/2014

Date Filed: 12/19/2014

City of Cleburne v. Cleburne Living Center,

Date Filed: 12/19/2014

Date Filed: 12/19/2014

Michigan v. U.S. Army Corps. of Engineers,

Date Filed: 12/19/2014

Schuette v. Coal. to Defend Affirmative Action,

Date Filed: 12/19/2014

Date Filed: 12/19/2014

STATEMENT REGARDING JURISDICTION

2004, through one of the States constitutional amendment procedures,

Date Filed: 12/19/2014

86% of Mississippi voters approved Article 14, Section 263A of the

Date Filed: 12/19/2014

under Mississippi law (collectively the Campaign).

Date Filed: 12/19/2014

protection rational basis review and the Supreme Courts animus

Date Filed: 12/19/2014

SUMMARY OF THE ARGUMENT

Date Filed: 12/19/2014

After discarding Baker, the district court wrongly concluded

Date Filed: 12/19/2014

proceeding cautiously on an issue of fundamental social change, as well

Date Filed: 12/19/2014

conclusion should be reversed.

Date Filed: 12/19/2014

The district courts multiple errors of law warrant reversal of the

must prove four elements: (1) a substantial likelihood that [the

Date Filed: 12/19/2014

preliminary injunction will not disserve the public interest. Bluefield

Baker v. Nelson Forecloses the Campaigns Claims.

Date Filed: 12/19/2014

prior decisions. Policy opinions of state or lower federal courts,

Date Filed: 12/19/2014

(1972). The dismissal, even though decided summarily, constituted a

Date Filed: 12/19/2014

established rules of orderly decision. Those lower court decisions

Date Filed: 12/19/2014

See note 1, above.

Date Filed: 12/19/2014

boils down to a single question: whether the Supreme Court explicitly

Date Filed: 12/19/2014

Baker accepted by the district court below are noteworthy. A favored

If Windsors silence on issues raised by its parties measures a legal theorys

Date Filed: 12/19/2014

S.Ct. at 2692, and must, as it had before DOMA, rely on state

Date Filed: 12/19/2014

Date Filed: 12/19/2014

recognized by the Supreme Court:

Date Filed: 12/19/2014