Case: 15-10313

Date Filed: 02/02/2015

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No. 15-10313-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Luther Strange, Attorney General,

Defendant-Appellant,
v.
James N. Strawser and John E. Humphrey,
Plaintiffs-Appellees.

On appeal from the United States District Court

for the Southern District of Alabama
Case No. 1:14-cv-00424-CG-C

REPLY IN SUPPORT OF TIME-SENSITIVE MOTION TO STAY

(RULING REQUESTED BEFORE FEB. 9, 2015)

Luther Strange
Attorney General
Andrew L. Brasher*
Solicitor General
James W. Davis
Laura Howell
Assistant Attorneys General

OFFICE OF THE ALABAMA ATTORNEY

GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 353-2609
(334) 353-8440 (fax)
abrasher@ago.state.al.us

February 2, 2015

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Strange v. Strawser
Appeal No. 15-10313-A

CERTIFICATE OF INTERESTED PERSONS

Appellant Luther Strange, Attorney General, pursuant to 11th Cir. R.
26.1-1, certifies that the following persons have an interest in the outcome of this
case and/or appeal:
1.

Alabama Probate Judges Association, Amicus

2.

Agricola, Algert, Counsel for Amicus

3.

Bentley, Robert, Governor and Amicus

4.

Brasher, Andrew L., Solicitor General

5.

Davis, James W., Assistant Attorney General

6.

Granade, Hon. Callie V. S., United States District Judge

7.

Howell, Laura E., Assistant Attorney General

8.

Minter, Shannon P., Counsel for Appellees

9.

Strange, Luther, Attorney General

10.

Stoll, Christopher F., Counsel for Appellees

11.

John E. Humphrey, Appellee

12.

James N. Strawser, Appellee

s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
Counsel for the Appellant

C1 of 1

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REPLY IN SUPPORT OF TIME-SENSITIVE MOTION TO STAY

We have also filed a reply in Searcy v. Strange, Appeal No. 15-10295-C. To
avoid redundancy, this brief will address the plaintiffs arguments only to the
extent they are different from the arguments in Appeal No. 15-10295-C. Neither
the plaintiffs in Searcy nor the plaintiffs here have rebutted our showing that the
law and public interest favor a stay of the lower courts ruling until either the
Supreme Court or this Court decides whether states must recognize same-sex
marriages.
A. The Attorney General is likely to succeed on the merits.
As we explained in the motion to stay, the trial courts judgment is due to be
reversed because: (1) it did not follow binding Supreme Court precedent; (2) it
defined the fundamental right to marry as the right to marry anyone of any sex,
even though that formulation of the right to marry is not deeply rooted in our
history or tradition; and (3) it did not even mention our experts testimony that
recognizing opposite-sex marriage promotes the states interest in linking children
to their biological parentsan interest that is not promoted by recognizing samesex marriages because one or more of the childs biological parents are necessarily
not a party to the marriage. We will not repeat those arguments here.
For their part, the plaintiffs defend the trial courts decision on due process
and equal protection grounds. They assert that they are not seeking to redefine
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marriage, but want access to the institution of marriage as it has historically

existed. They say that they do not want a new right but seek to exercise the
same right to marry enjoyed by all other citizens of this nation. Opp. to Mot. to
Stay at 13 (15 of 22). But, like the district court, the plaintiffs do not attempt to
answer the question that is at the heart of their claims: if marriage is not a union of
one man and one woman, then what is it? How have the plaintiffs been denied a
right that all other citizens enjoy, given that no one in the United States until
recently has lawfully married a spouse of the same sex? As Justice Kennedy noted
in Windsor, until recent years, many citizens had not even considered the
possibility that two persons of the same sex might aspire to occupy the same status
and dignity as that of a man and woman in lawful marriage. Windsor v. United
States, 133 S. Ct. 2675, 2689 (2013).
The plaintiffs also make arguments that are directly contradicted by
precedents that bind this Court. As we explained in our motion, the U.S. Supreme
Courts summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is still
binding on this Court. But putting Baker to the side, the plaintiffs also argue that
homosexuals are a suspect class although this Court has held precisely the opposite
in Lofton v. Secretary of Florida Department of Children and Family Services, 358
F.3d 804 (11th Cir. 2004). Lofton is not some long-forgotten relic of the early
1900s; it was decided eight years after Romer v. Evans, 517 U.S. 620, 116 S. Ct.
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1620 (1996), and one year after Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472
(2003). In other words, the plaintiffs arguments on the merits expressly ask this
Court to reject a binding Supreme Court decision and a binding decision of this
Court. That fact alone establishes that we have a substantial likelihood of success.
Finally, we have made a substantial case that the interests supported by
opposite-sex marriage are, at the very least, rational. As the Sixth Circuit recently
explained, states are not in the marriage business to regulate love. DeBoer v.
Snyder, 772 F.3d 388, 404 (6th Cir. 2014). Instead, state marriage laws link
children to their biological parents (and link these biological parents to each other)
by imposing a package of privileges and obligationssuch as presumptions of
paternitythat make less sense in the context of same-sex relationships. It is not
irrational or malicious for state laws to reflect an awareness of the biological
reality that couples of the same sex do not have children the same way as couples
of opposite sexes. Id. at 405. It is instead the background against which the
institution of marriage has developed over the last several thousand years.
In any event, our arguments on the merits have persuaded a panel of the
Sixth Circuit and dissenting judges in other circuits. At the very least, because this
case involves a serious legal question that has split the circuits, Ruiz v. Estelle,
650 F.2d 555, 565 (5th Cir. Unit A June 1981), a stay is warranted if the balance of
equities weighs heavily in favor of granting the stay, Garcia-Mir v. Meese, 781
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F.2d 1450, 1453 (11th Cir. 1986) (internal quotations, brackets, and citations
omitted).
B. The equities and public interest weigh in favor of a stay.
On the balance of the equities, the plaintiffs do not add much to the
arguments in Searcy, Appeal No. 15-10295-C. Like the plaintiffs in Searcy, the
plaintiffs simply ignore the harm to the state from its inability to enforce a state
law that was passed with the support of roughly 80% of the electorate. That harm
may not be enough, by itself, to warrant a stay. But it clearly qualifies as a form
of irreparable injury that warrants a stay unless the plaintiffs can point to strong
countervailing equities. Maryland v. King, 567 U.S. 1, 3 (2012) (Roberts, C. J., in
chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977) (Rehnquist, J., in chambers)). The plaintiffs also make too much
of a single decision from a district-court judge in Utah, which purported to validate
same-sex marriages that took place under a cloud of litigation in that state. That
decision is, obviously, not binding on any court in Alabama, and it would not
resolve the uncertainty of any same-sex marriages that might take place in
Alabama pending the U.S. Supreme Courts ruling a few months from now.
Moreover, like the plaintiffs in Searcy, the plaintiffs here ignore the very
real confusion and conflict that has already arisen in Alabama in light of the trial
courts decision in this case.

As we have explained in our reply in Searcy,

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Alabamas probate judges and its Chief Justice have issued conflicting statements
about the meaning of the lower courts order. And, because the Attorney General
is the only party to the injunction but does not issue marriage licenses, it is unclear
what relief he can give the named plaintiffs. This conflict and confusion will
vanish once the U.S. Supreme Court issues its own decision on this issue in a few
months. And neither the plaintiffs here nor the plaintiffs in Searcy have identified
any harm in waiting.
Nonetheless, the plaintiffs here do raise one point that is unique to their case.
They argue that Plaintiff Strawser is facing significant health issues that put his
life at great risk and a hospital on a previous occasion would not honor a
medical power of attorney in favor of Plaintiff Humphrey because Humphrey was
not a family member or spouse. Opp. to Mot to Stay at 17 (19 of 22). As we
noted at the preliminary injunction hearing, if this assertion is true, the hospital has
already violated Alabama law and subjected itself to a suit for damages and
attorneys fees. See Ala. Code 26-1A-404 et seq. Under Alabama law, a medical
power of attorney may be executed in favor of any competent individual; it is not
limited to spouses or family members. Id. And Alabama law provides an express
cause of action to enforce the medical power of attorney if it is improperly denied.
See Ala. Code 26-1A-120 (providing cause of action and attorneys fees). The
plaintiffs can solve their immediate problem by asking their new attorneys to send
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the hospital a threatening letter.1 They do not need a federal injunction against the
Alabama Attorney Generals Office, which does not issue marriage licenses in any
event.
CONCLUSION
The Court should stay the decision in this case for the same reasons that it
should stay the District Courts decision in Searcy.

The Attorney General

respectfully requests that this Court rule on this motion before February 9, 2015
and enter an order staying the Order during the pendency of the appeal or until
further order of this Court or the U.S. Supreme Court.

Respectfully submitted,
LUTHER STRANGE
ATTORNEY GENERAL
BY:
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
James W. Davis
Laura E. Howell
Assistant Attorneys General
Attorneys for the Appellant

The plaintiffs were pro se in the trial court. But they are now represented by counsel.

Case: 15-10313

Date Filed: 02/02/2015

OF COUNSEL:
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130
(334) 353-2609
(334) 353-8440 Fax
Email:
abrasher@ago.state.al.us
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 2nd day of February, 2015, I served a
copy of the foregoing upon the following by electronic mail and U.S. Mail:
Shannon P. Minter
National Center for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
sminter@nclrights.org
Christopher F. Stoll
National Center for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
cstoll@nclrights.org
s/ Andrew L. Brasher
Andrew L. Brasher
Of Counsel