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Strawser v. Strange

United States District Court, S.D. Alabama, Southern Division

February 12, 2015

JAMES N. STRAWSER, et al., Plaintiffs,
v.
LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama and DON DAVIS in his official capacity as Probate Judge of Mobile County, Alabama, Defendants

James N. Strawser, Plaintiff, Pro se, Mobile, AL.

John E. Humphrey, Plaintiff, Pro se, Mobile, AL.

For Luther Strange, in his official capacity as Attorney General of the State of Alabama Defendant: James W. Davis, LEAD ATTORNEY, Office of the Attorney General, Montgomery, AL; Laura Elizabeth Howell, Montgomery, AL.

Page 1207

ORDER

Callie V. S. Granade, UNITED STATES DISTRICT JUDGE.

This matter is before the court on Plaintiffs' emergency motion for preliminary injunction and/or temporary restraining order (Doc. 43), and the response thereto of Attorney General Strange (Doc. 44). A hearing on Plaintiffs' motion was held on February 12, 2015. Appearing at the hearing were counsel for Plaintiffs, counsel for defendant Judge Don Davis and counsel for Plaintiffs in a similar case, SDAL Civil Action No. 15-067-CG-C. For the reasons explained below, the court finds that Plaintiffs' motion for preliminary injunction should be granted.

The decision to grant or deny a preliminary injunction " is within the sound discretion of the district court..." Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). This court may grant a preliminary injunction only if the plaintiff demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the required injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Id., 287 F.3d at 1329; see also McDonald's Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). " In this Circuit, '[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the " burden of persuasion" as to the four requisites." McDonald's Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a preliminary injunction is issued only when " drastic relief" is necessary.)

This case is brought by four same-sex couples in committed relationships who reside in Mobile, Alabama and have been denied the right to a legal marriage under the laws of Alabama. This court previously issued a preliminary injunction in this case prohibiting the Alabama Attorney General, " his officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage" from enforcing the Alabama laws which prohibit same-sex marriage. (Doc. 29). That preliminary injunction was initially stayed, but went into effect on Monday, February 9, 2015, after the Eleventh Circuit Court of Appeals and the Supreme Court of the United States denied Attorney

Page 1208

General Strange's request to extend the stay. (Doc. 40, Exh. 1; Doc. 43, p. 2). On February 9, 2015, the Plaintiffs went to the Mobile County Probate office seeking marriage licenses, but found the office closed. (Doc.43-4, ¶ 5; Doc. 43-5, ¶ 5; Doc. 43-6, ¶ 5; Doc. 43-7, ¶ 5). Judge Don Davis of the Mobile County Probate Court issued a press release on February 9, 2015, stating that the Marriage License Section of the Court's Recording Division would remain closed pending further instructions from the United States District Court and the Chief Justice of the Alabama Supreme Court. (Doc. 43-3, and Hearing Exhibit 6). Judge Davis's press release further stated that he had filed an action with the Alabama Supreme Court seeking guidance and clarification. (Doc. 43-3 and Hearing Exhibit 6). The Alabama Supreme Court has since dismissed that petition. (See Doc. 52 at p. 26 and Hearing Exhibit 10B). Judge Davis was not initially a defendant in this matter and was not named in the preliminary injunction that went into effect on February 9, 2015. However, the amended complaint filed on February 10, 2015, names Judge Davis in his official capacity as a defendant and seeks an injunction against Judge Davis prohibiting him from enforcing the Alabama laws, policies or practices that exclude Plaintiffs from marriage. (Doc. 47).

The Plaintiffs report that they all feel demeaned and humiliated by Alabama's refusal to treat them equally. (Doc. 43-4, ¶ 3; Doc. 43-5, ¶ 3; Doc. 43-6, ¶ 3; Doc. 43-7, ¶ 3, Hearing Exhibits 1 - 4). Plaintiff James Strawser has serious health issues that will require surgery that will put his life at risk. (Doc. 43-4, ¶ 4, Hearing Exhibit 1). When Strawser had surgery in the past, he signed a form giving his partner, John Humphrey, legal power over Strawser's medical decisions, but the hospital refused to honor that document because under Alabama law Humphrey was not a spouse or family member. (Doc. 43-4, ¶ 4, Hearing Exhibit 1).

Plaintiff Meredith Miller wants to marry her partner, Anna Lisa Carmichael to have the legal protections and security that only marriage provides. (Doc. 43-5, ¶ 3, Hearing Exhibit 2). Each day that they are excluded from marriage, they must deal with uncertainty about whether they will be treated as family members if they experience a life crisis or emergency. (Doc. 43-5, ¶ 3, Hearing Exhibit 2). Miller and Carmichael hope to have children but are concerned that if they are not married their children will get the message that their family is not as worthy of dignity and respect as other families in Alabama and that their children will be denied important legal protections that come with marriage. (Doc. 43-5, ¶ 4, Hearing Exhibit 2).

Plaintiff Kristy Simmons wants to marry her partner, Marshay Safford, to have a legal family relationship and build stability for their children. (Doc. 43-6, ¶ 3, Hearing Exhibit 3). Each day that they are not permitted to marry they experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 43-6, ¶ 3, Hearing Exhibit 3). The legal protections of marriage are especially important to Simmons because she has a rare disorder called Wegener's Granulomatosis that causes her blood vessels to become inflamed and can damage her major organs. (Doc. 43-6, ¶ 4, Hearing Exhibit 3).

Plaintiff Robert Povilat wants to marry his partner, Milton Persinger, in order to protect one another and have the legal protections and security that only marriage provides. (Doc. 43-7, ΒΆ 3, Hearing Exhibit 4). Mr. Povilat has survived two bouts of ...


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