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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MlSSlSSIPPI ~ NORTHERN DIVISION

11
,..

CAMPAIGN FOR SOUTHERN

§

EQUALITY; FAMILY EQUALITY

§

COUNCIL; DONNA PHILLIPS; JANET §

SMITH; KATHRYN GARNER; SUSAN §

HROSTOWSKI; JESSICA HARBUCK; §

BRITTANY ROWELL; TINORA

§

SWEETEN-LUNSFORD; and KARl

§

LUNSFORD,.

§

§

Plain tiffs,

§

§

vs.

§

§

The MISSISSIPPI DEPARTMENT OF

§

HUMAN SERVICES and RICHARD

§

BERRY, in his official capacity·as its

§

Executive Director; PHIL BRYANT, in his §

official capacity as Governor of the State of §

Mississippi; JIM HOOD, in his official

§

capacity as Mississippi Attorney General, §

·§

Defendants. §

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Campaign for Southern Equality, Family Equality Council, Donna Phillips, . Janet Smith, Kathryn Garner, Susan Hrostowski, Jessica Harbuck, Brittany Rowell, Tinora Sweeten-Lunsford, and Kari Lunsford complain and allege:
INTRODUCTION 1. This lawsuit is being filed to redress the significant deprivation of constitutional rights caused by one sentence in Mississippi's adoption law which reads as follows: "Adoption by couples of the same gender is prohibited." Miss. Code Ann. § 93-17-3(5) (the "Mississippi Adoption Ban"). Those nine words in Mississippi's statutory code not only nullify, for gay people only, all of the factors otherwise considered relevant in ensuring that adoptions in

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Mississippi are performed in the best interests of the child, but blatantly discriminate against gay couples who are now legally married.
2. The consequences of the Mississippi Adoption Ban for gay couples and their families are profound and far-reaching. As the United States Supreme Court recently recognized, "gays and lesbians can create loving, supportive families" and "many same-sex couples provide loving and nurturing homes to their children." See Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (20 15). The Supreme Court expressed a similar sentiment two years earlier in United States v. Windsor, when, in striking down the key provision of the Defense of Marriage Act, it observed that denying recognition under federal law to married gay and lesbian couples "humiliates tens of thousands of children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closen~ss of their own family and its concord with other families in their community and in their daily lives." 133 S. Ct. 2675, 2694 (2013).
3. Those same princi_ples, of course, are as true for children in Mississippi as they are for children anywhere else in this country. According to the 20 l 0 Census, 26% of the 3,484 gay couples living in Mississippi are raising children under age 18 in their homes. See % of Same-sex Couples Raising Children in Top Metro Areas, The Williams Institute (May 20, 20 13), http:/lwilliamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/infographicmsas-may-2013/ (last updated July 26, 2013). By 2014, that number had increased so that at least 29% of gay couples in ·Mississippi (or 9.96 households) are now raising 1,401 children. Gary J. Gates, Same-sex Couples in Mississippi: A Demographic Summary, The Williams , Institute (Dec. 2014), http://wiII iamsinstitute.law.ucla.edu/wp-content/uploads!MI-same-sex-
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couples-demo-dec-20 14.pdf. This is the highest percentage of gay couples raising children of any state in the nation. !d.
4. Yet, despite these.numbers, Mississippi is the last state that explicitly bans gay couples from adopting without regard for their qualifications as parents or the best interests of the child. See Suzy Khimm, The New Nuclear Family: What Gay Marriage Means for the Future of Parenthood, New Republic (July 23, 2015), http://www.newrepublic.com/article/ 122349/new-nuclear-family; Movement Advancement Project, Equality Maps: Foster and Adoption Laws, Joint Adoption (July 21, 2015), http://www.lgbtmap.org/equalitymaps/foster_and_adoption_laws/joint_adoption_laws. Courts in Arkansas and Florida have explicitly struck down analogous bans on gay couples adopting or fostering children. Cole v. Ark. Dep't of Human Servs., No: CV 2008-14284, 2010 WL 6451862 (Ark. Ct. App. May 10, 2010), aff'd 380 S.W.3d 429 (2011); Fla. Dep't of Children & Families v. Adoption ofXXG., 45 So. 3d 79, 81 (Fla. Dist. Ct. App. 2010). Only last month, the Louisiana Supreme Court recognized that the Obergefell decision, which had the effect of nullifying the provision of the Louisiana Constitution barring gay marriage, also rendered unconstitutional Louisiana's ban on gay and lesbian couples adopting. See Costanza v. Caldwell, No. 2014-CA-2090, 2015 WL 4094655 (La. July 7, 2015) (dismissing as moot on the basis of Obergefell the appeal of a writ of adoption for the female spouse of a child's biological mother). See id. at *4 (concurring opinion of Justice Guidry describing the factual background of the case). Just a few months ago, the Florida legislature passed, and the Governor signed into law, a bill to formally repeal the adoption ban there. H.B. 7013, 2015 Leg. (Fl. 2015). And last week, a Nebraska court struck down the Nebraska Department of Health and Human Services' ban on gays and lesbians' ability
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to foster or adopt wards of the state. 1 Stewart v. Heineman, No. CI 13-3157 (Neb. Dist. Ct.

Lancaster Cty. Aug. 5, 2015).

5. Of course, not all families are the same. They differ in size, cultural heritage,

religion, and economic means. Some are headed by parents who planned, were prepared for, and

wanted children--others are not. Some children, regardless of their parents' sexual orientation,

come from single-parent, divorced, or blended families. And some children now have married

lesbian and gay parents who live in committed and loving relationships in Mississippi. The

question before this Court is not what kind of family is best. That is not a question for this or

any court to decide. Rather, the question here is whether there is a legal basis for depriving

many children in Mississippi of the protections and security of having two legal parents.

6. The Mississippi Adoption Ban writes inequality into Mississippi law by requiring

that married gay and lesbian couples and parents be treated differently than all other married

couples .

in

Mississippi,

unequivocally

bar.ring

them

from

adoption

without

regard

to

their

circumstances. As a consequence, the equal dignity of hundreds of families and thousands of

children in Mississippi is disrespected and the significant and concrete rights, benefits, and duties

that come with legal parentage are denied. The Mississippi Adoption Ban means that "thousands

of ... children [are] actually being raised in homes ... [with] only one legal parent, not the two

who want them." Matter of Jacob, 660 N.E.2d 397, 398 (N.Y. 1995) (Kaye, C.J.). The

Mississippi Adoption Ban is an outdated relic of a time when courts and legislatures believed

that it was somehow okay to discriminate against gay people simply because they are gay. But

And just yesterday, the Mexican Supreme Court struck down a law in the Mexican state of Campeche that banned gay and lesbian couples from adopting children. See, e.g., Michael K. Lavers, Mexican Supreme Court Strikes Down Gay Adoption Ban, Washington Blade (Aug. 11, 2015), http://www.washingtonblade.com/20 15/08/11 /mexican-supreme-court-strikesdown-gay-adoption-ban/.

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under the Supreme Court's decisions in Obergefell and Windsor, such discrimination against

children because their parents happen to be gay is blatantly unconstitutional.

A. Plaintiffs

PARTIES

The Campaign for Southern Equality

7. The Campaign for Southern Equality was incorporated in 201 I, in order to

advocate for the full equality of lesbian, gay, bisexual, and transgender ("LGBT") people in

American life and to increase public support for their rights. Based in Asheville, North Carolina,

the Campaign for Southern Equality works throughout the South by providing free legal clinics

and resources to help LGBT Southerners protect their rights; engaging in litigation to vindicate

the rights guaranteed by the Constitution of the United States; and providing organizational

support and training to local LGBT leaders. Since 2012, the Campaign for Southern Equality

has worked actively with LGBT people across Mississippi. These efforts have included public

advocacy promoting marriage equality, to\:Vn hall events about LGBT equality, and free legal

clinics. The Campaign for Southern Equality has members in the State of Mississippi.

8. A court in this district described the Campaign for Southern Equality as "a non-

profit advocacy group based in Asheville, North Carolina, that works across the South to

promote 'the full humanity and equality of lesbian, gay, bisexual, and transgender people in

American life,"' and recently recognized the Campaign for Southern Equality as a proper

institutional plaintiff having standing to sue on behalf of its members in a lawsuit challenging

Mississippi's laws banning marriage between gay couples. See Campaign for S. Equal. v.

Bryant, 64 F.. Supp. 3d 906, 914, 917-18 (S.D. Miss. 2014) ("CSE also has standing to sue on

behalf of its members.... The allegations in the complaint support that CSE's members would

independently have standing to seek the relief described in this suit alongside the individual

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plaintiffs, and would be satisfied by a judgment against these defendants. It also is evident that CSE's mission is aligned with its goals in this suit."), aff'd, No. 14-60837, 2015 WL 4032186 (5th Cir. July I, 2015).
Family Equality Council 9. Family Equality Council was founded in 1979, in order to connect, support, and represent parents who are lesbian, gay, bisexual, transgender, and queer ("LGBTQ") and their children. It is the only national organization exclusively dedicated to securing justice and equality for LGBTQ parents and their children by advancing legal and social justice for all families. Based in Massachusetts, Family Equality Council has multiple offices and serves its constituents throughout the country, including Mississippi, through its Southern Advisory Council. Family Equality Council has worked to advance equality for LGBTQ parents and their children across the South and since 2012 has focused its efforts in Mississippi. In October 2014, the organization partnered with the University of Mississippi School of Law to hold its first legal services clinic for low-income LGBTQ parents in Jackson, Mississippi. The second such clinic is scheduled for October 2015. Family Equality Council holds seminars and other communitybuilding events throughout the South, including in Mississippi, to educate prospective LGBTQ parents about their family-building options. Donna Phillips and Janet Smith 10. Donna Phillips and Jan Smith have been together as a couple since 1995 and were legally married in Maryland on August 1, 2013. They are residents of Rankin County, Mississippi, and have lived in Mississippi for their entire lives. 11. Donna has served-with distinction in various positions in the military, including as a company commander of a unit in the Mississippi Army National Guard responsible for the
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immediate response to Hurricane Katrina. She is currently a Captain in the Mississippi Air National Guard and holds a Master's Degree in Business Administration from Mississippi State University.
12. Jan has been employed by the Mississippi Department of Mental Health for more than 20 years and holds a Master's Degree in Education from Mississippi State University.
13. Both women felt a strong desire to be parents and, in 2007, Donna gave birth to their daughter H.M.S.P. Because of the Mississippi Adoption Ban, only Donna's name is listed on H.M.S.P. 's birth certificate. H.M.S.P. has no other legal parent.
14. Jan has been a parent to H.M.S.P. since her birth in every sense of the word except under the law, and H.M.S.P. knows and loves both Jan and Donna as her parents. Jan shares parenting responsibilities ·for H.M.S.P. equally with Donna, with the exception of the times when Donna has been called to perform military duties outside of Mississippi and Jan has had to bear most of those responsibilities on her own.
15. Jan and Donna have a happy, bright, and well-adjusted eight-year-old daughter whom they both love very much. Jan and Donna are exemplary parents who have mutually provided H.M.S.P. with a childhood full of love and support. Both are actively involved in their daughter's life and are dedicated participants in the Parent Teacher Organization at H.M.S.P.'s school.
16. Jan and Donna have to worry about Jan's parental rights being challenged under the law, especially because Donna's military duties frequently require her to be away from home and because there is the possibility that she could be killed or seriously injured in the line of duty. In the event of a stressful emergency situation, Jan and Donna would not want their
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daughter to have to deal with the fact that Mississippi law only recognizes one of her moms as her legal parent.
17. Jan and Donna want Jan to adopt H.M.S.P. so that her two actual parents will be her legal parents. H.M.S.P. also wishes to be adopted by Jan.
18. Because of the Mississippi Adoption Ban, Donna and Jan's efforts to take the first step in the adoption process have been unsuccessful. Specifically, every single social worker they have tried to engage to perform a home study has refused, citing the Mississippi Adoption
Ban. See Miss. Code Ann. § 93-17-3(6). Several social work agencies told Donna and Jan that
not only would a home study for a gay couple trying to adopt in Mississippi be useless, but they feared it would endanger their organizations' standing with the State of Mississippi.
Kathryn Gamer and Susan Hrostowski 19. Kathryn Garner and Susan Hrostowski have been together as a couple for nearly 26 years. They had a religious ceremony 22 years ago, and were legally married last summer in an Episcopalian wedding held at Washington National Cathedral in Washington, D.C. At their wedding, their 15-year-old son, H.M.G., served as their best man. They are residents of Forrest County, Mississippi. 20. Kathryn grew up in Hattiesburg, Mississippi. She holds a Bachelor's Degree in Community and Regional Planning from the University of Southern Mississippi and has been the Executive Director of the AIDS Services Coalition for the last 10 years, an organization that provides services to people living with HIVIAIDS in southern Mississippi, with an emphasis on helping the homeless population. 21. Susan grew up in Gulfport, Mississippi. She- holds a Bachelor's Degree in Psychology from the University· of Southern Mississippi, a Master of Divinity from Virginia
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Theological Seminary, and a Master's Degree and a Ph.D in Social Work from Tulane University. Susan was ordained as an Episcopal priest in 1988 and is the vicar of St. Elizabeth's Episcopal Church in Collins, Mississippi. She is also an Associate Professor in the School of Social Work at the University of Southern Mississippi.
22. Kathy and Susan together decided to have a child as equal parents and that Kathy would carry their child. Kathy gave birth to their son H.M.G. 15 years ago, just six weeks before the Mississippi Adoption Ban went into effect. Kathy and Susan consulted with a lawyer shortly after H.M.G.'s birth and were advised that, because of the Mississippi Adoption Ban, it would be impossible for Susan to adopt H.M.G. under Mississippi law.2
23. Although both Kathy and Susan have together parented H.M.G. since birth, Kathy is the only legal parent on his birth certificate. H.M.G. has no other legal parent.
24. H.M.G., who is now 15, is thriving by every measure. He earned straight A's in his freshman year of high school, was the starting quarterback for his high school football team, and spent part of this past summer as a counselor at a camp for children with intellectual disabilities.
25. Kathy and Susan love H.M.G. very much and never want to worry about Susan's parental rights being challenged under the law. Kathy and Susan want Susan to adopt H.M.G. and H.M.G. wishes to be adopted by Susan.
2 The advice given to Kathy and Susan regarding the effect of the Mississippi Adoption Ban is made without the intent to, and does not, waive attorney-client privilege or any other applicable privilege.
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Jessica Harbuck and Brittany Rowell 26. Jessica Harbuck and Brittany Rowell have been together as a couple since 20 I0 and are engaged to be married. They are planning to wed in Jackson, Mississippi in January, 2016. They are residents of Rankin County, Mississippi. 27. Raising children together is an important part of what Jessica and Brittany look forward to in marriage. They hope to jointly adopt children through the foster care system so as to be able to provide a child in need with a loving and stable home. There are currently approximately I 00 children in Mississippi who are in foster care and legally available for adoption, but who have not been matched with parents who can adopt them. 28. Jessica and Brittany are well-suited to adopt children, both financially and emotionally. Jessica is currently employed as a civil engineer while also pursuing a Master's Degree in Environmental Engineering at Jackson State University. She will graduate in December 2015. Brittany is an office manager. She also has extensive experience working with infants at a daycare and as a nanny. Tinora Sweeten-Lunsford and Kari Lunsford 29. Tinora ("Tina") Sweeten-Lunsford and Kari Lunsford have been together as a couple for more than 20 years, had a commitment ceremony 19 years ago, and were married two years ago in Washington State. They moved to Starkville, Mississippi over I2 years ago and have made Mississippi their home. They are residents of Oktibbeha County. 30. Tina has a Bachelor's Degree in Anthropology from Western Washington University and a Master's Degree in Nonprofit Management from Hamline University. Kari has a Bachelor's Degree in Music Composition and Theory from Coe College and a Doctorate of Veterinary Medicine from the University of Minnesota. Tina is currently the Executive Director
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of the Columbus Arts Council and Kari is a veterinary clinician and professor at Mississippi State University.
31. Tina and Kari have longed to adopt children for many years. Because of Tina's past experiences working with children with disabilities, including as a Program Director at the Mississippi State Early Childhood Institute, they are willing and able to adopt children with special needs.
32. Tina and Kari took concrete steps to adopt in Mississippi, including speaking with social workers and attending a training session for foster parents run by the Mississippi Department of Human Services ("MDHS"). However, at the training session, which was the first step necessary to qualify as a foster parent, a MDHS social worker told them that they were not eligible to become foster parents or to adopt children in Mississippi because they are lesbians.
33. In further discussions, the MDHS social worker conceded that there are children in the MDHS system who cannot be matched with suitable foster parents because of their special needs. The MDHS social worker stated that Tina and Kari could potentially be considered as foster parents of such a child, but only if just one of them pursued the adoption as a "single" person and if they agreed to live apart while MDHS reviewed their application, including for at least six months while MDHS completed a home study. Understandably, Tina and Kari were not willing to agree to such an irrational, unjust, and demeaning condition. It simply would not make any sense to do a home study of a home when only one_ of the two married women who intend to raise the adopted child together is present.
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B. Defendants 34. Defendant Mississippi Department of Human Services is an agency of the State of
Mississippi, designated by Miss. Code Ann. §§ 93-17-1 through 93-17-31 to establish procedures for handling adoptions within Mississippi. 18-6:1 Miss. Code R. § G-1.11. Within MDHS, the Adoption Unit of the Division of Family and Children's Services ("DFCS") has responsibility for adoptive placements made by and through MDHS. Jd.
35. Defendant Richard "Rickey" Berry is the Executive Director of the Mississippi Department of Human Services, and is being sued here in his official capacity. Mr. Berry is the "chief administrative officer of the [MDHS]," and is charged by state law with the duty of "establish[ing] the organizational structure of the Mississippi Department of Human Services which shall include the creation of any units necessary to implement the duties assigned to the department and consistent with specific requirements of law, including ... [the] Office of Family and Children's Services." Miss. Code Ann. §§ 43-1-2(2}-(5)(a). The Office of Family and Children's Services, in turn, is responsible for the "development, execution and provision of services in the following areas: (a) protective services for children; (b) foster care; (c) adoption services." Miss. Code Ann.§ 43-1-51.
36. Defendant Phil Br-yant is the Governor of the State of Mississippi and is being sued here in his official capacity. Governor Bryant is the chief executive of the State of Mississippi and is responsible for ensuring compliance with state law. Governor Bryant also bears responsibility for the formulation and administration of the policies of the executive branch, including administrative agency policies relating to adoption. Governor Bryant appoints the Executive Director of the Department of Human Services, the administrative body that
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manages adoption procedures within the State of Mississippi. Miss. Code Ann. § 43-1-2(2). Governor Bryant was and is acting under color of state law at all times relevant to this complaint.
37. Defendant Jim Hood is the Attorney General of the State of Mississippi and is being sued here in his official capacity. Attorney General Hood is the chief law enforcement officer of the State of Mississippi and is responsible for enforcing and insuring compliance with state law. Attorney General Hood was and is acting under color of state law at all times relevant to this complaint.
38. Each of the Defendants is charged with enforcing the laws of the State of Mississippi related to adoptions.
39. Upon information and belief, the Defendants and other officers of the State of Mississippi interpret the Mississippi Adoption Ban to prohibit the adoption of children by gay and lesbian couples like Plaintiffs in this case.
40. .Under Mississippi law, a home study is required before a child can be adopted by someone other than a relative or ~tepparent of the child. The home study must be performed by MDHS or a licensed adoption agency. Miss. Code Ann. § 93-17-11. Upon information and belief, MDHS and a number of licensed adoption agencies are refusing, because of the Mississippi Adoption Ban, to conduct home studies for married gay and lesbian couples who wish to adopt a child.
JURISDICTION AND VENUE 41. This action arises under the Constitution of the United States and the laws of the United States, including 42 U.S.C. § 1983. This Court therefore has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
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42. Venue is proper under 28 U.S.C. § 1391 because Defendant MDHS's offices are in this district and Defendant Berry, Defendant Bryant, and Defendant Hood aJI reside in the State of Mississippi. Venue is also proper because a substantial part of the events giving rise to this action occurred in this district.
43. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
44. This Court has personal jurisdiction over Defendants because they are domiciled in Mississippi.
FACTS A. The Origins of the Mississippi Adoption Ban
45. Mississippi, like every other state in this nation, has a strong public interest in seeing that as many children as possible get adopted into stable, loving homes. See, e.g., Adoption and Safe Families Act of 1997, Pub. L. 105-89, 111 Stat. 2115 (articulating policy to encourage permanent adoptive homes); Miss. Code Ann. § 43-15-13(8) (advising that if a child in foster care cannot be reunified with a parent, the placement must be the "best available placement to provide a permanent living arrangement for the child."). It therefore makes sense that eligibility to adopt in Mississippi is-with the irrational exception of gay couples-quite broad. Under Mississippi law and as published on the MDHS website, single persons and married couples are eligible to adopt in Mississippi, provided they are at least 21 years of age, have "income and insurance sufficient to meet the additional needs of an adopted child," and "meet accepted emotional, intellectual and psychological standards to be good parents." Who
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Can Adopt, MDHS, http:1/www.mdhs.state.ms.us/family-chi ldrens-services/programsdfcs/adopt-a-chi ld/who-can-adoptl.
46. Mississippi courts likewise focus on the best interests of the child when determining whether to approve adoptions. Indeed, "Mississippi has consistently and repeatedly held that the best interests of the child is a polestar consideration in the granting of any adoption." In re Adoption of D.NT., 843 So. 2d 690, 719 (Miss. 2003) (MacRae, P.J., dissenting) (emphasis added) (internal quotation marks omitted). In determining the best interests of the child, Mississippi courts most often look to the so-called "Albright factors": (1) "[A]ge ... health, and sex of the child"; (2) "continuity of care"; (3) "parenting skills" and "willingness and capacity to provide primary child care"; (4} "the employment of the parent and responsibilities of that employment"; (5) "physical and mental health and age of the parents"; (6) "emotional ties of parent and child"; (7) "moral fitness of parents";3 (8) "the home, school and community record of the child"; (9) "the preference of the child"; (1 0) "stability of home environment and employment of each parent"; and (11) "other factors relevant to the parentchild relationship." Albright v. Albright, 437 So. 2d 1003, I 005 (Miss. 1983). Under this analysis, all the factors must be considered, and "[d]ifferences in religion, personal values and lifestyles should not be the sole basis for custody decisions." ld. While the Albright factors were developed in the custody context, Mississippi courts have applied them to adoption
3 While Mississippi can and should consider the moral fitness of parents in making decisions regarding adoption, the Supreme Court has held that "moral disapproval" of gay people is not a legitimate government interest. See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) ("Were there any doubt of [DOMA's] far-reaching purpose [to express moral disapproval], the title of the Act confirms it: The Defense of Marriage."); see also Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O'Connor, J., concurring) ("Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be 'drawn for the purpose of disadvantaging the group burdened by the law."' (quoting Romer v. Evans, 517 U.S. 620, 633 (1996))).
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proceedings. See, e.g., Natural Mother v. Paternal Aunt, 583 So. 2d 614, 619 (Miss. 1991) (applying Albright factors to best interests analysis in adoption context).
47. The origins of the Mississippi Adoption Ban are illustrative of the kinds of improper animus that have all too often motivated laws that establish de jure discrimination against gay men and lesbians.
48. In 1999, the Mississippi Supreme Court decided the case of Weigand v. Houghton, which affirmed the decision of a chancellor to deny custody of a child (Paul) to his biological father (David) and award custody to Paul's biological mother instead solely because David was gay. 730 So. 2d 581, 583 (Miss. 1999).
49. The underlying facts in the Weigand case and the contrast between the potential homes for the child Paul were extreme. Paul's father David, on the one hand, had a good job, a stable home, and did all within his power to care for Paul. ld. at 588. Indeed, the court observed that "David expresses a love and affection for Paul which was unquestioned ... He has seen to Paul's needs during the period of time in which Paul has lived with him by furnishing him with not only the necessities of life, but also ... accompanying [him] to museums, dinners, shopping and amusement parks as well as other extracurricular activities.... David expressed a desire for Paul to receive the highest quality education possible." ld. at 583-84. Paul's mother, on the other hand, "has been transitory, works two jobs, and has limited time with the child" and thus left much of Paul's care to "the unemployed stepfather [who] is a convicted felon, drinker, drugtaker, adulterer, wife-beater, and child-threatener." ld. at 588 (McRae, J., dissenting). But because David was gay and was then living in a committed relationship with another man, the court awarded custody to Paul's mother, despite the "psychologically and physically dangerous environment," id., in which Paul would live with her and her husband. In other words, the court
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concluded that "a homosexual lifestyle," standing alone, "ipso facto render[ed] one unfit for custody." ld. at 594 (Banks, J., dissenting).
50. The next ye~r, the Mississippi legislature, motivated by fear that a gay parent might actually succeed in obtaining custody of a child because a chancellor might conclude that it was in the best interests of the child, took action to amend Mississippi's adoption law to make it clear that as far as Mississippi was concerned, gay people were, by definition, unfit parents. As noted above, the resulting statute provides unequivocally that: "Adoption by couples of the same gender is prohibited." Miss. Code Ann. § 93-17-3(5).
51. In passing the M~ssissippi Adoption Ban, the Mississippi legislature created a single, overtly discriminatory exception to the comprehensive regulatory scheme that otherwise ensures that adoptive parents are selected in accordance with an individualized assessment of the abilities of each applicant and the best interests of each child. See, e.g., Miss. Code Ann. § 9317-11; 18-6:1 Miss. Code R. § D-V. I~deed, Mississippi has no other categorically exempt class of persons who are unable to adopt. Thus, while gay couples cannot adopt, convicted felons or persons who have been convicted of committing child abuse or domestic violence could theoretically be permitted to adopt under Mississippi law, or at least are not categorically exempt from filing an adoption petition in the same way that gay couples are.
52. In taking this drastic action, the Mississippi legislature took no steps to evaluate the impact it would have on children or families in Mississippi. There is no evidence to suggest that any studies were conducted or reviewed of gay parents or of children being raised in gay families; no testimony was taken from qualified experts in the field. Instead, the Mississippi legislature was clear in its sole intention to express fear and moral disapproval of gay people and their families.
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53. State Senator Ron Farris, for example, expressed this motivation bluntly: "A homosexual relationship implies the exercise of illegal activities . . . and no child should be permitted to enter that type of setting." Gina Holland, State Bans Adoption by Gay Couples, ACLU: Decision Likely to Bring Lawsuits, Sun Herald, April 20, 2000, at A4. State Senator Richard White supported the Mississippi Adoption Ban for similar reasons, explaining that gay people "have already made a mistake" and "can't do the job of raising a child the right way." Gina Holland, Parenting Hopes Put on Hold Law Says Gays Can't Adopt, Sun Herald, July 9, 2000, at Al2. State Representative Rita Martison agreed, noting that "[t]here is no way you can convince me that 'Joe has two mommies' is a value that we need to extend to the next generation." Emily Wagster, Bill to Ban Adoptions by Same-Sex Couples Advances, Clarioncedger, Feb. 23, 2000, at 5B. During debate over the measure in the Mississippi House of Representatives, State Representative Gary Chism said Mississippi could hardly have been more explicit about the "policy" behind the Mississippi Adoption Ban, explaining his belief that the State of Mississippi "shouldn't place [children] in a lifestyle that's unnatural." Id.
54. The amendment to the adoption statute was signed into law by then Mississippi Governor Ronnie Musgrove. Significantly, Governor Musgrove has come to regret his support for the Mississippi Adoption Ban and has repudiated it as bad public policy. Two years ago, in a moving piece Governor Musgrove published before Windsor and Obergefell were decided, he explained that "[t]he issue of equal rights for Lesbian, Gay, Bisexual and Transgender individuals has vexed politicians for decades. I have my own cloudy history with the issue, having supported a law in Mississippi that made it illegal for LGBT couples to adopt children." Ronnie Musgrove, Portman's Conversion Should Be a Lesson, Huffington Post Blog, (last
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updated May 20, 2013), http://www.huffingtonpost.com/ronnie-musgrove/portmans-conversionshoul b 2918493.html.
55. Governor Musgrove's statement leaves no doubt about his impermissible motivations in signing the bill into law, confirming that the Mississippi Adoption Ban was specifically driven by fears of gay people: "As I thought about this issue, I came to understand that in order to do everything possible to keep another child from growing up like I did, we cannot continue to blindly disqualify people from becoming parents ... simply because many of us fear what we do not understand. Like a majority of Americans in recent years, I came to understand that fear of homosexuality was leading our governments-including the one I ran as Governor of Mississippi-to deny the equal rights to an entire segment of our population that are afforded all of us under the Constitution." ld. (emphasis added).
56. But Governor Musgrove, like most other Americans, has evolved in his views and . has changed his mind about the impact of Mississippi's adoption policy: "There are far too many children in America in need of a loving home, who are shuttled between temporary homes and group shelters that fail to provide the stable, nurturing environment all children deserve.... And as I have gotten older, I came to understand, that a person's sexual orientation has absolutely nothing to do with their ability to be a good parent. . . . Had I vetoed the [Mississippi
Adoption Ban], the Legislature had more than enough votes to override my veto. Nonetheless, this decision that all of us made together has made it harder for an untold number of children to grow up in happy, healthy homes in Mississippi-and that breaks my heart." Jd. B. The Mississippi Adoption Ban Deprives Plaintiffs of Equal Dignity
57. The. Mississippi J\doption Ban prohibits gay couples from adopting without any regard for their qualifications as parents or whether the adoption would be in the best interests of
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the child. The only disqualifying factor is the fact that the potential adoptive parents happen to be gay. Each and every moment that Defendants deny adoption to gay couples deprives Plaintiffs of their constitutional rights and causes them and their children to suffer irreparable harm. It also harms the significant number of children in Mississippi waiting to be adopted.
58. By barring gay couples from adopting, Mississippi's adoption law demeans gay families and deprives them of equal dignity. As the Supreme Court recently explained in Obergefell v. Hodges, "[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices." 135 S. Ct. 2584, 2599 (2015). Among those "profound choices" is the choice to have children, which the State has traditionally provided to committed couples, particularly those who are married. ld. at 2600.
59. By singling out gay couples for denial of adoption rights, Mississippi relegates them to second-class status. Cf Windsor, 133 S. Ct. at 2693 ("The avowed purpose and practical effect of the [Defense of Marriage Act] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.").
60. The irrational prejudice behind Mississippi's blanket disqualification of gay couples from adoption is perhaps best demonstrated by the simple fact that gay couples are relegated to the second-class status created for them by the Mississippi Adoption Ban. No other category or group is singled out for a blanket adoption ban, not even people with characteristics that-unlike being gay-are clearly rationally related to one's potential qualifications as an adoptive parent under the Albright factors.
61. Mississippi's adoption law also demeans children who are actually being raised by two gay married parents in Mississippi, but who have only one legal parent. In the words of Justice Kennedy, the inability for the other parent to legally adopt under Mississippi's laws
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"makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor, 133 S. Ct. at 2694.
62. In these ways and more, Mississippi's law has caused Defendants and other state officials to deny Plaintiffs the rights, benefits, and duties that come with adoption. Child rearing plays a unique role in American society, with significant social, economic, and legal implications. In recognition of the deep and abiding commitment that married couples make to their children, our legal system provides benefits and duties to legally recognized parents that are not otherwise available. These include numerous protections involving all aspects of daily life. See generally, e.g., Miss. Code Ann. tit. 37 (Education); Miss. Code Ann. tit. 41 (Public Health); Miss. Code Ann. tit. 43 (Public Welfare); Miss. Code Ann. tit. 91 (Trusts and Estates); Miss. Code Ann. tit. 99 (Criminal Procedure). It is hard to imagine a regime more at odds with creating and maintaining stable relationships within which children may flourish.
63. The absence of i legal relationship between parent and child often becomes
critical in situations that are already stressful or traumatic for families, including medical emergencies and the death of a parent. As Judge Daughtrey explained in her dissent in DeBoer v. Snyder in the United States Court of Appeals for the Sixth Circuit, "should anything happen to that adoptive parent, there is no provision in Michigan's legal framework that would 'ensure that the children would necessarily remain with the surviving non-legal parent."' 772 F.3d 388, 425 (6th Cir. 2014) (Daughtrey, J., dissenting), rev'd sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
64. The same is true- for Plaintiffs here. Kathy and Susan have lived in fear, especially in the first few years after H.M.G. was born, that Susan could lose H.M.G. if
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something were to happen to Kathy. Donna and Jan understandably share similar concerns and anxiety, which they feel particularly acutely when Donna is deployed away from home. During deployments, Jan and H.M.S.P. worry not only for Donna's safety, as does the family of every service member on duty away from home, but they also have the added distress that, if something were to happen to Donna, they could lose each other as well.
65. Mississippi's Adoption Ban conveys the message that gay families are inherently less valuable than all other families and should not be afforded the same dignity under the law. It is a public, government-sponsored rejection of one of the most important relationships in the lives of gay Mississippians, and it unconstitutionally relegates them and their families to secondclass citizenship. C. The Mississippi Adoption Ban Contradicts Sound Public Policy Encouraging
Adoption 66. Mississippi's discriminatory adoption law also irreparably harms children in need of adoptive parents. 67. MDHS has approximately 400 children in protective custody who are waiting to be adopted. Approximately 100 of those children are currently in foster care and have not yet been matched with adoptive parents. Mississippi Heart Gallery: Overview, 200 Million Flowers, Inc., http://www.200millionflowers.org/adoption/dhs-kids (last visited Aug. 4, 20 15). Profiles of children in the Department of Human Services' care in Mississippi who are waiting to be adopted, such as Aeron, "a sweet, out-going 8-year old boy" who "loves eating soul food" or Joyce, a 17-year-old lOth grader, who is a "good student" and "likes to climb trees," are available at: http://www.200millionflowers.org/adoption/dhs-kids/available-kids. 68. Many of the children who have not been adopted have serious medical, emotional, or psychological needs. These needs stem from backgrounds of adversity, loss, and instability,
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such as parental abuse and neglect, removal from their homes, and subsequent (sometimes multiple) temporary placements. Many of these children like Joyce are older, which makes them still less likely to be adopted. Whatever the reason, there is a backlog of children waiting for permanent, safe, and loving families, and it is well documented that when these children are adopted and become part of a permanent family, their prospects for a happy, healthy, and productive future are greatly enhanced.
69. Mississippi's legislature and MDHS have enacted a comprehensive regulatory scheme to ensure that adoptive parents are selected in accordance with an individualized assessment of the abilities of each applicant and the best interests of the child. See, e.g., Miss. Code Ann. § 93-17-11; 18-6: 1 Miss. Code R § D-V. There can be no question that Mississippi otherwise strongly encourages parents to adopt. See 18-6: 1 Miss. Code R § G-1.11 (explaining that "[t]he primary purpose of the DFCS's Adoption Program is to foster permanent connections for children," and that the general functions of MDHS include "[s]erving as a consultant to agencies providing adoption services," recommending legislation that further protects children and adoptive parents, and informing the public of adoption practices from a legal perspective).
70. Prohibiting gay and lesbian married couples from adopting--couples that tend to be more motivated to adopt-means that many of the children waiting to be adopted will have to wait longer, and some will age out of foster care without ever having a permanent, stable family of their own.
71. Furthermore, Mississippi incurs significant costs running the foster care system, costs that are directly tied to the.number of children in the system waiting to be adopted. The Williams Institute has estimated that if no gay and lesbian person were allowed to adopt, it could add $87 million to $130 million in foster care system expenditures each year. Gary J. Gates, et
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al., Adoption and Foster Care by Gay and Lesbian farents in the United States, The Williams Institute at 19 (Mar. 2007), http://www.urban.org/research/publication/adoption-and-foster-carelesbian-and-gay-parents-united-states/view/full_report. Preventing qualified gay parents from adopting leaves more children in foster care for longer periods of time and this, in turn, costs the state more money.
72. In the Campaign for Southern Equality case, Judge Reeves noted the irony of preventing gay couples who want to provide loving, stable households from adopting, observing that: "Like many states, Mississippi suffers when heterosexual parents have unprotected sex, bear children, and cannot take care of them. A number of those children end up in the foster care system, the juvenile justice system, and the children's mental health system. These children need homes and caretakers that love them. Same-sex couples can help. As one Mississippi mom explained, 'Children are precious to gay people because they are so hard to come by. We have to plan for them; they don't come unexpectedly. And we are blessed to have them, we love them dearly."' Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 943-44 (S.D. Miss. 2014) (quoting Charlotte Graham, Religion and Same-Sex Marriages, The Clarion-Ledger, Sept. 14, 1996), a.ff,d, No. 14-60837,2015 WL 4032186 (5th Cir. July 1, 2015).
73. The Mississippi Adoption Ban deprives some of the most vulnerable children in foster care in Mississippi from finding stable, loving families. Children likely to wait in temporary care longer, such as· children who are LGBT themselves, are disadvantaged by restrictions on adoption and fostering by gay married couples. Research demonstrates that gay and lesbian couples have an understanding of how it feels to be different and may have overcome oppression and discrimination in their own lives. U.S. Dep't of Health & Human Servs., Administration for Children and Families, Working with Lesbian, Gay, Bisexual, and
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Transgender (LGBT) Families in Adoption at 5 (Jan. 2011), https://www.childwelfare.gov/pub PDFs/f_profbulletin.pdf.
74. Gay and lesbian couples, like Plaintiffs Tina and Kari, may also be more willing than opposite-sex couples to adopt children viewed as different-including special needs children, "who are among the most difficult to place," and LGBT youth. Placements with gay and lesbian couples also can be beneficial for some LGBT young people, as gay parents can draw on personal experience to connect with and assist LGBT youth, who are over-represented in, and chronically underserved by, the foster care system. See generally Colleen Sullivan et al., Youth in the Margins: A Report on the Unmet Needs ofLesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, (2001), http://www.jimcaseyyouth.org/sites/default/files/documents /youthinthemargins_200 l.pdf. Many more gay couples in Mississippi would like to provide such homes for children through adoption.
75. In addition, many gay people raising children are members of racial or ethnic minorities. Specifically, one in three people in lesbian relationships who are members of racial or ethnic minorities (35%) are raising a child under age 18, compared to 24% for their white counterparts. Gary J. Gates, Demographics of Married and Unmarried Same-sex Couples: Analyses of the 2013 American Community Survey, The Williams Institute (Mar. 2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Demographics-Same-Sex-CouplesACS2013-March-2015.pdf. For gay men, the same comparison is 16% versus 6%, respectively. ld. These facts are not insignificant because, in 2013, the majority of children in foster care in Mississippi were non-white (54.8%). Children's Bureau ofthe Dep't of Health & Human Servs.,
Race/Ethnicity ofChildren in Foster Care ruAJJ, http://cwoutcomes.acf.hhs.gov/data/tables/foster_
race_incareoctoberones?states(]=25&state=&region=.
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D. The Mississippi Adoption Ban Harms the Children of Gay Parents 76. Gay couples, many of whom are now married, provide safe, loving, and nurturing
homes to children all across the country, including in Mississippi. By denying these households in Mississippi the ability to adopt, the State does not encourage the stability or well-being of the family or community in which they live, it only undermines it.
77. As noted in paragraphs 15 and 24 above, Kathy and Susan's son H.M.G. and Donna and Jan's daughter H.M.S.P. are thriving by any measure. But that is a testament to Kathy and Susan's and Donna and Jan's extraordinary ability to raise healthy, well-adjusted children despite the impediments placed on their ability to do so by the discriminatory Mississippi Adoption Ban. In other words, Kathy and Susan and Donna and Jan have had to work overtime to ensure that their children understand--despite the State's contrary messagethat their family is as good as everyone else's.
78. Will Miller, a 28-year-old Mississippian whose mothers have been together for 23 years, has explained that he never "underst[ood] what all the fuss was about:" "They loved me, and that was all that mattered. It's all that should matter. Indeed, my childhood as the son of lesbian parents was extraordinary in that it was simply ordinary." Statement of Will Miller to Family Equality Council (Jul. 3, 2014), Brief for Family Equality Council et al. as Amici Curiae in Support of Petitioners at 12, O~ergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (No. 14-556).
79. The positive experiences that children of gay parents have are consistent with decades of social science findings: children of same-sex parents and children of different-sex parents fare equally well academically, psychologically, and socially. All of the leading social service organizations agree that gay and lesbian parents do just as well as straight parents at
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raising happy, healthy, and well-adjusted children. There is no serious or legitimate dispute on
this issue among social scientists and mental healt~ professionals.
80. As the district court for the Southern District of Mississippi observed in the
Campaign for Southern Equality case:
A fmal stereotype was that gay and lesbian citizens were unfit parents who would harm children. The Executive Director of the American Family Association, a family values group in Tupelo, argued that children raised in same-sex households have "problems in relationships with members of the opposite sex," are 29 times more likely. to be the victim of incest, suffer a variety of psychological problems, and are at "greater risk of becoming homosexual" themselves. Mike Crook, Should Gay Adoption Be Banned? "Yes", The Clarion-Ledger, Mar. 26, 2000.
Proponents of the above notions have had the opportunity to prove these theories in court, but failed. Two of the trials in which these proponents' theories were debunked are summarized here.
The champions of California's same-sex marriage ban promised to show 23 "specific harmful consequences" that families, children, and society would suffer if same-sex marriage was allowed to recommence in that state. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 931 (N.D. Cal. 2010). At trial, however, they "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate." Id. The expert testimony that was presented showed that "gays and lesbians are no more likely than heterosexuals to pose a threat to children"·; "children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents"; "same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability"; and adoptive parents "actually on some outcomes outstrip biological parents in terms of providing protective care for their children." /d. at 935. The court concluded that "children of same-sex couples benefit when their parents can marry." !d. at 973.
The State of Michigan also had an opportunity to prove, at trial, the harms that would develop from same-sex marriage. See DeBoer v. Snyder, 973 F. Supp. 2d 757, 761-68 (E.D. Mich. 2014). Its main expert witness presented testimony that was "entirely unbelievable and not worthy of serious consideration." !d. at 766. The state's other experts were no better: the court concluded that they all "clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields." Id. at 768. As to the alleged harm to children presented by homosexuals, the court noted that the American Medical Association, Am~rican Academy of Pediatrics, American Psychological Association, and other professional organizations concerned for the welfare of children have expressed "support for parenting, adoption, and/or fostering by lesbian and gay couples." /d. at 763.
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64 F. Supp. 3d at 938-39 (Reeves, J.). 81. Significantly, in the Mississippi marriage case neither Governor Bryant nor
Attorney General Hood argued, either before Judge Reeves or at the Fifth Circuit, that gay couples should not be permitted to marry because they are unfit parents or even worse as compared to straight parents. See Brief of Governor Phil Bryant and Attorney General Jim Hood in Opposition to Plaintiffs' Motion for Preliminary Injunction, Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) (No. 3:14-cv-818); Transcript of Oral Argument, Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) (No. 3:14-cv-818); Brief
of Phil Bryant and Jim Hood as Appellants, Campaign for S. Equal. v. Bryant, 2015 WL
4032186 (5th Cir. July 1, 2015) (No. 14-60837); Reply Brief of Phil Bryant and Jim Hood as Appellants, Campaign for S. Equal. v. Bryant, 2015 WL 4032186 (5th Cir. July I, 2015) (No. 14-60837).
82. In fact, more than 100 studies of youths raised by gay and lesbian parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals have concluded that children and adolescents raised by gay parents are as successful psychologically, .emotionally, and socially as children and adolescents raised by straight parents. See Expert Affidavit of Michael Lamb, Ph.D., Ex. Bat 2-8, Windsor v. United
States, 833 F. Supp. 2d 394 (S.D.N.Y. 2011) (No. I0 Civ. 8435) (listing studies). As Professor
Lamb has explained: "[T]he research on gay parent families is a robust body of research that meets rigorous methodological standards demanded for publication in the leading academic journals. There is simply no basis on which to dismiss this body of research as invalid or unreliable due to methodological deficiencies." Supplementa.l Expert Affidavit of Michael
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Lamb, Ph.D. at 6-7, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2011) (No. 10 Civ. 8435).
83. The American Psychological Association, for example, has stated that: "Assertions that heterosexual couples are better parents than same-sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, are not supported by the cumulative scientific evidence. Rather, the vast majority of scientific studies that have directly compared these groups have found that gay and lesbian parents are as fit and capable as heterosexual parents, and that their children are as psychologically healthy and well adjusted. More research has focused on lesbian mothers than on gay fathers, but published studies of gay fathers find that they are as fit and able parents as heterosexual fathers." Brief for the American Psychological Association et al. as Amici Curiae in Support of Petitioners at 2223, Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (No. 14-556). Indeed, "the parenting abilities of gay men and l~sbians-and the positive outcomes for their children-are not areas where credible scientific researchers disagree." /d. at 26.
84. Similarly, the American Academy of Pediatrics has concluded that: "There is extensive research documenting· that there is no causal relationship between parents' sexual orientation and children's emotional, psychosocial, and behavioral development. Many studies attest to the normal development of children of same-gender couples when the child is wanted, the parents have a commitment to shared parenting, and the parents have strong social and economic supports." Am. Acad. of Pediatrics, Policy Statement, Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics 827, 828 (Apr. 2013). The American Medical Association has likewise adopted a policy supporting legisiative and other reforms to allow adoption by gay and lesbian couples. Am. Med. Ass'n, Policy H-60.940,
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Partner Co-Adoption, http://www.ama-assn.org/ama/pub/about-amalour-people/member-groupssections/gl bt-advisory-comm ittee/ama-po licy-regarding-sexual-orientation.page?.
85. The National Association of Social Workers has also determined that "[t]he most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to heterosexual parents and their children that were included in the studies." Nat'l Ass'n of Soc. Workers, Nat'/ Ass'n of Soc. Workers, Policy
Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193, 194 (1997).
86. By preventing children from being adopted by otherwise qualified married gay couples, the Mississippi Adoption Ban does not improve or in any way affect the stability of families with opposite-sex parents, and instead circumvents the regulatory system that otherwise ensures that adoptions proceed in the best interests ofthe child.
CAUSES OF ACTION CLAIM ONE: EQUAL PROTECTION 87. Plaintiffs incorporate by reference paragraphs 1 through 86, supra, as if set forth fully herein. 88. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 89. The Mississippi Adoption Ban at issue denies to persons within Mississippi the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. By allowing straight couples to adopt, while refusing to allow gay couples to do the same,· the State of Mississippi impermissibly distinguishes among similarly situated people by discriminating solely on the basis of sexual orientation. By refusing to permit adoption by
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gay couples, the State of Mississippi deprives those couples of all the adoption-related rights and duties that Mississippi offers straight couples, rendering them unequal before the law and denying their relationships the dignity to which they are ~onstitutionally entitled.
90. Notably, the Supreme Court in. Obergefell recognized the close connection between the right for gay couples to marry and for gay couples to adopt. See Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (20 15) ("[W]hile the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include ... adoption rights ...").
91. The Equal Protection Clause "direct[s] that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus, "even when the group discriminated against is not a 'suspect class,' courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination." Baskin v. Bogan, 166 F.3d 648, 654 (7th Cir. 2014). A law cannot be sustained where the proffered reasons for the law are simply irrational. Further, classifications that are "more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective" are subject to especially searching judicial review. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Mississippi Adoption Ban fails to satisfy the guarantees of the Equal Protection Clause under any level ofjudicial review.
92. It is now well-accepted that a law cannot withstand even rationality review where the "purpose" of the classification is "disadvantaging the group burdened by the law." Romer v. Evans, 517 U.S. 620, 633 (1996). The Supreme Court has thus made clear that a law fails rational basis review if it was passed through "animosity," or the "bare . . . desire to harm a
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politically unpopular group." !d. at 634. Moreover, as Justice Kennedy has explained, "animus" does not necessarily require overt hatred or hostility, but may instead reflect merely an "insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." Bd. ofTrs. ofthe Univ. ofAla. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring).
93. Animus, as that term has been construed in cases like Garrett and Lawrence v. Texas, 539 U.S. 558 (2003), is the sole basis for the discrimination borne by gay couples in Mississippi. There is no legitimate governmental interest furthered by the statutory provision presently at issue, which serves only to deny gay couples the right to adopt. By relegating gay couples and their families to a disfavored legal status, Mississippi impermissibly creates a second-class caste among its citizens, in violation of the Fourteenth Amendment's guarantee of equal protection of the laws.
94. The Supreme Court in Windsor and Obergefell applied some form of heightened scrutiny to review and strike down laws that discriminated against gay people by not allowing them to marry and not recognizi~g their lawful marriages performed elsewhere. See Windsor, 133 S. Ct. at 2696--97; Obergefell, 135 S. Ct. at 2608; see also SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014); Windsor, 699 F.3d 169, 181 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013).
95. When determining whether to apply heightened scrutiny to laws that discriminate against a particular group of people, courts consider the following factors: (I) whether the group has suffered a history of discrimination; (2) whether the group members differ from other individuals in a way that bears on their ability to perform or contribute to society; (3) whether the group is defined by "obvious, immutable or distinguishing characteristics"; and (4) whether the
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group lacks political power because prejudice against the group tends seriously to curtail the operation of those political processes ordinarily to be relied upon. Windsor, 699 F.3d at 181-82. Each of these four factors militates strongly in favor of applying heightened scrutiny here. Indeed, a federal district court in Mississippi evaluating whether heightened scrutiny should apply to discrimination against gay people recently concluded that "[i]ntermediate scrutiny is most appropriate." Campaign for S. Equal., 64 F. Supp. 3d at 941 (though ultimately concluding that circuit precedent foreclosed the court from applying that appropriate form of scrutiny).
96. Gay people have endured a long and painful history of popular and statesponsored discrimination within the United States, including within Mississippi. See Obergefell, 135 S. Ct. at 2596-97; Windsor, 133 S. Ct. at 2693-95; Campaign for S. Equal, 64 F. Supp. 3d at 930-37.
97. ·This discrimination is based solely on their sexual orientation. It bears no relationship to their ability to contribute to society at large. See Obergefell, 135 S. Ct. at 2596;
Windsor, 133 S. Ct. at 2694-95; Campaign for S. Equal., 64 F. Supp. 3d at 937.
98. Sexual orientation is an innate and immutable trait of all people. See Obergefell, 135 S. Ct. at 2594, 2596; Campaign for S. Equal., 64 F. Supp. 3d at 939.
99. Gay people lack the political power to protect themselves through the democratic process by overturning discriminatory laws and passing laws that would protect their rights. See Windsor, 133 S. Ct. at 2693; Campaign for S. Equal., 64 F. Supp. 3d at 940,945, 948.
100. The Mississippi Adoption Ban also violates the Fourteenth Amendment's Equal Protection Clause because it discriminates on the basis of sex. As Judge Berzon explained in her concurrence in the Ninth Circuit's decision in Latta v. Otter: "[I]t can make no difference to the existence of a sex-based classification whether the challenged law imposes gender
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homogeneity ... or gender heterogeneity. Either way, the classification is one that limits the affected individuals' opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction." 771 F.3d 456, 481 (9th Cir. 2014) (Berzon, J., concurring). The distinction Mississippi draws between straight and gay married couples with respect to parenting is implicitly based on an individual's gender. See id. at 484 ("Laws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals' gender are sex discriminatory and must be subjected to intermediate scrutiny." (citing.J.E.B. v.Alabama, 5II U.S. I27, 140-42 (1994))).
CLAIM TWO: DUE PROCESS I0 I. Plaintiffs incorporate by reference paragraphs 1 through I00, supra, as if set forth fully herein. I02. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. The provision of the Mississippi Code presently at issue, § 93-17-3(5), deprives gay couples of the liberties guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Mississippi Adoption Ban impinges on the fundamental liberty interest of gay couples to parent their children and denies them an esse~tial component of their marriages. 103. As the Supreme Court proclaimed in Obergefell, "[u]nder the Due Process Clause of the Fourteenth Amendment, no State shall 'deprive any person of life, liberty, or property, without due process of law.' . . . [T]hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." 135 S. Ct. at 2597. The Court further held that when "same-sex couples are denied all the benefits afforded to opposite-sex couples [they] are barred from exercising a fundamental
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right." ld. at 2604. Additionally, the Court reaffirmed the longstanding constitutional principle that "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Id at 2606 (quoting W. V. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (internal quotation marks omitted)).
I 04. The freedom to have and raise children is one of the most basic civil rights. The deprivation of this right constitutes a denial of due process of law in violation of the Due Process Clause of the Fourteenth Amendment. See, e.g., Cleveland Bd of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) ("This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."). As is the case with heightened scrutiny under the Equal Protection Clause for a suspect class, "interference with a fundamental right warrants the application of strict scrutiny." Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014).
105. "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Obergefell, 135 S. Ct. at 2600 (quoting Zablocki v. Redhail, 434 U.S. 374, 384 (1978)). "Many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted." Id. "Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents." ld. "This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families." ld.
106. By denying gay couples the right to be parents and "bring up children," Defendants stigmatize gay couples, their children, and their families by depriving them of the dignity and stature afforded to straight, married couples through governmental recognition of one of their most cherished relationships. Gay couples are denied the ability ''to understand the
35

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integrity and closeness of their own family and its concord with other families in their community and in their daily lives." !d. (quoting Windsor, 133 S. Ct. at 2694-95). "[T]heir children suffer the stigma of knowing their families are somehow lesser." !d.
107. Defendants' enforcement of§ 93-17-3(5) also harms children in Mississippi by categorically denying those in the foster care system the possibility of having adoptive parents and denying children being raised by gay and lesbian couples the possibility of having two legal parents. The State has a duty to act in the best interests of-and certainly not to harm--children in its custody.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65 108. Plaintiffs incorporate by reference paragraphs 1 through I07, supra, as if set forth fully herein. 109. This case presents an actual controversy because Defendants' present and ongoing denial of equal protection and due process to Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment. 110. Plaintiffs seek an ·injunction to protect their constitutional rights and avoid the injuries described in this complaint. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law. Ill. The State of Mississippi will incur no or little burden in allowing gay couples to adopt and in recognizing valid adoption of children by gay couples, whereas the hardship for Plaintiffs of being denied equal treatment and the denial of a fundamental right is. severe. The balance of hardships weighs strongly in favor of Plaintiffs.
36

Case 3:15-cv-00578-DPJ-FKB Document 1 Filed 08/12/15 Page 37 of 38 PRAYERS FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court enter an order: I. Declaring that Miss. Code Ann. § 93-17-3(5), as applied to Plaintiffs and on its face, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 2. Preliminarily and permanently enjoining the enforcement and application of Miss. Code Ann. § 93-17-3{5); 3. Awarding Plaintiffs their reasonable costs, expenses, and attorneys' fees pursuant to 42 U.S.C. § 1988; and 4. Granting such other relief as the Court may deem just, equitable, and proper.
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Respectfully submitted,
Dated: August 12, 2015
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Roberta A~ Kaplan* Lead Counsel
Andrew J. Ehrlich* Joshua D. Kaye* Jacob H. Hupart* Alexia D. Koritz* 1285 Avenue of the Americas New York, NY 10019-6064 Tel:(212) 373-3000 Fax:(212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com akoritz@paulweiss.com

......
:crl~ Rol:iert B. McU BarNo. 2532 Sibyl C. Byrd BarNo. 100601 Jacob W. Howard Bar No. I 03256
767 North Congress Street Jackson, Mississippi 39202. Tel:(60 1) 969-0802 Fax: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com jake@mcdufflaw.com
ELLIS LAW FIRM, PLLC.

BRAZIL & BURKE, P.A.
Meghann K. Burke* 77 Central Avenue, Suite E Asheville, NC 2880 I Tel: (828) 255-5400 Fax: (828) 258-8972 meghann@brazilburkelaw .com

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

*Pro hac vice application forthcoming

Attorneysfor Plaintiffs Campaign for Southern Equality, Family Equality Council, Donna Phillips, Janet Smith, Kathryn Garner, Susan Hrostowski, Jessica Harbuck, Brittany Rowell, Tinora Sweeten-Lunsford, and Kari Lunsford.

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 </s> Case 3:15-cv-00578-DPJ-FKB Document 23 Filed 09/11/15 Page 1 of 43

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY; FAMILY

§

EQUALITY COUNCIL; DONNA PHILLIPS; JANET SMITH; §

KATHRYN GARNER; SUSAN HROSTOWSKI; JESSICA

§

HARBUCK; BRITTANY ROWELL; TINORA SWEETEN- §

LUNSFORD; and KARI LUNSFORD,

§

§

Plaintiffs,

§

§

vs.

§

§

The MISSISSIPPI DEPARTMENT OF HUMAN SERVICES §

and RICHARD BERRY, in his official capacity as its Executive §

Director; PHIL BRYANT, in his official capacity as Governor §

of the State of Mississippi; JIM HOOD, in his official capacity §

as Mississippi Attorney General; the TENTH DISTRICT

§

CHANCERY COURT OF MISSISSIPPI; the FOURTEENTH §

DISTRICT CHANCERY COURT OF MISSISSIPPI; the

§

TWENTIETH DISTRICT CHANCERY COURT OF

§

MISSISSIPPI; DAWN BEAM, in her official capacity as a

§

Chancellor in the 10th District Chancery Court; M. RONALD §

DOLEAC, in his official capacity as a Chancellor in the 10th

§

District Chancery Court; DEBORAH J. GAMBRELL, in her § official capacity as a Chancellor in the 10th District Chancery §

Court; JOHNNY L. WILLIAMS, in his official capacity as a §

Chancellor in the 10th District Chancery Court; KENNETH M. §

BURNS, in his official capacity as a Chancellor in the 14th

§

District Chancery Court; DOROTHY W. COLOM, in her

§

official capacity as a Chancellor in the 14th District Chancery §

Court; JIM DAVIDSON, in his official capacity as a Chancellor §

in the 14th District Chancery Court; JOHN GRANT, in his

§

official capacity as a Chancellor in the 20th District Chancery §

Court; and JOHN C. McLAURIN, JR., in his official capacity §

as a Chancellor in the 20th District Chancery Court,

§

§

Defendants.

§

§

§

§

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

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:15-cv-00578-DPJ-FKB Document 23 Filed 09/11/15 Page 2 of 43
Plaintiffs Campaign for Southern Equality, Family Equality Council, Donna Phillips, Janet Smith, Kathryn Garner, Susan Hrostowski, Jessica Harbuck, Brittany Rowell, Tinora Sweeten-Lunsford, and Kari Lunsford complain and allege:
INTRODUCTION 1. This lawsuit is being filed to redress the significant deprivation of constitutional rights caused by one sentence in Mississippi’s adoption law which reads as follows: “Adoption by couples of the same gender is prohibited.” Miss. Code Ann. § 93-17-3(5) (the “Mississippi Adoption Ban”). Those nine words in Mississippi’s statutory code not only nullify, for gay people only, all of the factors otherwise considered relevant in ensuring that adoptions in Mississippi are performed in the best interests of the child, but blatantly discriminate against gay couples who are now legally married. 2. The consequences of the Mississippi Adoption Ban for gay couples and their families are profound and far-reaching. As the United States Supreme Court recently recognized, “gays and lesbians can create loving, supportive families” and “many same-sex couples provide loving and nurturing homes to their children.” See Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015). The Supreme Court expressed a similar sentiment two years earlier in United States v. Windsor, when, in striking down the key provision of the Defense of Marriage Act, it observed that denying recognition under federal law to married gay and lesbian couples “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. 2675, 2694 (2013).
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3. Those same principles, of course, are as true for children in Mississippi as they are for children anywhere else in this country. According to the 2010 Census, 26% of the 3,484 gay couples living in Mississippi are raising children under age 18 in their homes. See % of Same-sex Couples Raising Children in Top Metro Areas, The Williams Institute (May 20, 2013), http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/infographicmsas-may-2013/ (last updated July 26, 2013). By 2014, that number had increased so that at least 29% of gay couples in Mississippi (or 996 households) are now raising 1,401 children. Gary J. Gates, Same-sex Couples in Mississippi: A Demographic Summary, The Williams Institute (Dec. 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/MI-same-sexcouples-demo-dec-2014.pdf. This is the highest percentage of gay couples raising children of any state in the nation. Id.
4. Yet, despite these numbers, Mississippi is the last state that explicitly bans gay couples from adopting without regard for their qualifications as parents or the best interests of the child. See Suzy Khimm, The New Nuclear Family: What Gay Marriage Means for the Future of Parenthood, New Republic (July 23, 2015), http://www.newrepublic.com/article/ 122349/new-nuclear-family; Movement Advancement Project, Equality Maps: Foster and Adoption Laws, Joint Adoption (July 21, 2015), http://www.lgbtmap.org/equalitymaps/foster_and_adoption_laws/joint_adoption_laws. Courts in Arkansas and Florida have explicitly struck down analogous bans on gay couples adopting or fostering children. Cole v. Ark. Dep’t of Human Servs., No. CV 2008-14284, 2010 WL 6451862 (Ark. Ct. App. May 10, 2010), aff’d 380 S.W.3d 429 (2011); Fla. Dep’t of Children & Families v. Adoption of X.X.G., 45 So. 3d 79, 81 (Fla. Dist. Ct. App. 2010). Only last month, the Louisiana Supreme Court recognized that the Obergefell decision, which had the effect of nullifying the provision of the
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Louisiana Constitution barring gay marriage, also rendered unconstitutional Louisiana’s ban on gay and lesbian couples adopting. See Costanza v. Caldwell, No. 2014–CA–2090, 2015 WL 4094655 (La. July 7, 2015) (dismissing as moot on the basis of Obergefell the appeal of a writ of adoption for the female spouse of a child’s biological mother). See id. at *4 (concurring opinion of Justice Guidry describing the factual background of the case). Just a few months ago, the Florida legislature passed, and the Governor signed into law, a bill to formally repeal the adoption ban there. H.B. 7013, 2015 Leg. (Fl. 2015). And last week, a Nebraska court struck down the Nebraska Department of Health and Human Services’ ban on gays and lesbians’ ability to foster or adopt wards of the state.1 Stewart v. Heineman, No. CI 13-3157 (Neb. Dist. Ct. Lancaster Cty. Aug. 5, 2015).
5. Of course, not all families are the same. They differ in size, cultural heritage, religion, and economic means. Some are headed by parents who planned, were prepared for, and wanted children—others are not. Some children, regardless of their parents’ sexual orientation, come from single-parent, divorced, or blended families. And some children now have married lesbian and gay parents who live in committed and loving relationships in Mississippi. The question before this Court is not what kind of family is best. That is not a question for this or any court to decide. Rather, the question here is whether there is a legal basis for depriving many children in Mississippi of the protections and security of having two legal parents.
6. The Mississippi Adoption Ban writes inequality into Mississippi law by requiring that married gay and lesbian couples and parents be treated differently than all other married
1 And just yesterday, the Mexican Supreme Court struck down a law in the Mexican state of Campeche that banned gay and lesbian couples from adopting children. See, e.g., Michael K. Lavers, Mexican Supreme Court Strikes Down Gay Adoption Ban, Washington Blade (Aug. 11, 2015), http://www.washingtonblade.com/2015/08/11/mexican-supreme-court-strikesdown-gay-adoption-ban/.
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couples in Mississippi, unequivocally barring them from adoption without regard to their circumstances. As a consequence, the equal dignity of hundreds of families and thousands of children in Mississippi is disrespected and the significant and concrete rights, benefits, and duties that come with legal parentage are denied. The Mississippi Adoption Ban means that “thousands of . . . children [are] actually being raised in homes . . . [with] only one legal parent, not the two who want them.” Matter of Jacob, 660 N.E.2d 397, 398 (N.Y. 1995) (Kaye, C.J.). The Mississippi Adoption Ban is an outdated relic of a time when courts and legislatures believed that it was somehow okay to discriminate against gay people simply because they are gay. But under the Supreme Court’s decisions in Obergefell and Windsor, such discrimination against children because their parents happen to be gay is blatantly unconstitutional.
PARTIES A. Plaintiffs
The Campaign for Southern Equality 7. The Campaign for Southern Equality was incorporated in 2011, in order to advocate for the full equality of lesbian, gay, bisexual, and transgender (“LGBT”) people in American life and to increase public support for their rights. Based in Asheville, North Carolina, the Campaign for Southern Equality works throughout the South by providing free legal clinics and resources to help LGBT Southerners protect their rights; engaging in litigation to vindicate the rights guaranteed by the Constitution of the United States; and providing organizational support and training to local LGBT leaders. Since 2012, the Campaign for Southern Equality has worked actively with LGBT people across Mississippi. These efforts have included public advocacy promoting marriage equality, town hall events about LGBT equality, and free legal clinics. The Campaign for Southern Equality has members in the State of Mississippi.
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8. A court in this district described the Campaign for Southern Equality as “a nonprofit advocacy group based in Asheville, North Carolina, that works across the South to promote ‘the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life,’” and recently recognized the Campaign for Southern Equality as a proper institutional plaintiff having standing to sue on behalf of its members in a lawsuit challenging Mississippi’s laws banning marriage between gay couples. See Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 914, 917–18 (S.D. Miss. 2014) (“CSE also has standing to sue on behalf of its members. . . . The allegations in the complaint support that CSE’s members would independently have standing to seek the relief described in this suit alongside the individual plaintiffs, and would be satisfied by a judgment against these defendants. It also is evident that CSE’s mission is aligned with its goals in this suit.”), aff’d, No. 14-60837, 2015 WL 4032186 (5th Cir. July 1, 2015).
Family Equality Council 9. Family Equality Council was founded in 1979, in order to connect, support, and represent parents who are lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) and their children. It is the only national organization exclusively dedicated to securing justice and equality for LGBTQ parents and their children by advancing legal and social justice for all families. Based in Massachusetts, Family Equality Council has multiple offices and serves its constituents throughout the country, including Mississippi, through its Southern Advisory Council. Family Equality Council has worked to advance equality for LGBTQ parents and their children across the South and since 2012 has focused its efforts in Mississippi. In October 2014, the organization partnered with the University of Mississippi School of Law to hold its first legal services clinic for low-income LGBTQ parents in Jackson, Mississippi. The second such clinic
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is scheduled for October 2015. Family Equality Council holds seminars and other communitybuilding events throughout the South, including in Mississippi, to educate prospective LGBTQ parents about their family-building options.
Donna Phillips and Janet Smith 10. Donna Phillips and Jan Smith have been together as a couple since 1995 and were legally married in Maryland on August 1, 2013. They are residents of Rankin County, Mississippi, and have lived in Mississippi for their entire lives. 11. Donna has served with distinction in various positions in the military, including as a company commander of a unit in the Mississippi Army National Guard responsible for the immediate response to Hurricane Katrina. She is currently a Captain in the Mississippi Air National Guard and holds a Master’s Degree in Business Administration from Mississippi State University. 12. Jan has been employed by the Mississippi Department of Mental Health for more than 20 years and holds a Master’s Degree in Education from Mississippi State University. 13. Both women felt a strong desire to be parents and, in 2007, Donna gave birth to their daughter H.M.S.P. Because of the Mississippi Adoption Ban, only Donna’s name is listed on H.M.S.P.’s birth certificate. H.M.S.P. has no other legal parent. 14. Jan has been a parent to H.M.S.P. since her birth in every sense of the word except under the law, and H.M.S.P. knows and loves both Jan and Donna as her parents. Jan shares parenting responsibilities for H.M.S.P. equally with Donna, with the exception of the times when Donna has been called to perform military duties outside of Mississippi and Jan has had to bear most of those responsibilities on her own.
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15. Jan and Donna have a happy, bright, and well-adjusted eight-year-old daughter whom they both love very much. Jan and Donna are exemplary parents who have mutually provided H.M.S.P. with a childhood full of love and support. Both are actively involved in their daughter’s life and are dedicated participants in the Parent Teacher Organization at H.M.S.P.’s school.
16. Jan and Donna have to worry about Jan’s parental rights being challenged under the law, especially because Donna’s military duties frequently require her to be away from home and because there is the possibility that she could be killed or seriously injured in the line of duty. In the event of a stressful emergency situation, Jan and Donna would not want their daughter to have to deal with the fact that Mississippi law only recognizes one of her moms as her legal parent.
17. Jan and Donna want Jan to adopt H.M.S.P. so that her two actual parents will be her legal parents. H.M.S.P. also wishes to be adopted by Jan.
18. Because of the Mississippi Adoption Ban, Donna and Jan’s efforts to take the first step in the adoption process have been unsuccessful. Specifically, every single social worker they have tried to engage to perform a home study has refused, citing the Mississippi Adoption Ban. See Miss. Code Ann. § 93-17-3(6). Several social work agencies told Donna and Jan that not only would a home study for a gay couple trying to adopt in Mississippi be useless, but they feared it would endanger their organizations’ standing with the State of Mississippi.
Kathryn Garner and Susan Hrostowski 19. Kathryn Garner and Susan Hrostowski have been together as a couple for nearly 26 years. They had a religious ceremony 22 years ago, and were legally married last summer in an Episcopalian wedding held at Washington National Cathedral in Washington, D.C. At their
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wedding, their 15-year-old son, H.M.G., served as their best man. They are residents of Forrest County, Mississippi.
20. Kathryn grew up in Hattiesburg, Mississippi. She holds a Bachelor’s Degree in Community and Regional Planning from the University of Southern Mississippi and has been the Executive Director of the AIDS Services Coalition for the last 10 years, an organization that provides services to people living with HIV/AIDS in southern Mississippi, with an emphasis on helping the homeless population.
21. Susan grew up in Gulfport, Mississippi. She holds a Bachelor’s Degree in Psychology from the University of Southern Mississippi, a Master of Divinity from Virginia Theological Seminary, and a Master’s Degree and a Ph.D in Social Work from Tulane University. Susan was ordained as an Episcopal priest in 1988 and is the vicar of St. Elizabeth’s Episcopal Church in Collins, Mississippi. She is also an Associate Professor in the School of Social Work at the University of Southern Mississippi.
22. Kathy and Susan together decided to have a child as equal parents and that Kathy would carry their child. Kathy gave birth to their son H.M.G. 15 years ago, just six weeks before the Mississippi Adoption Ban went into effect. Kathy and Susan consulted with a lawyer shortly after H.M.G.’s birth and were advised that, because of the Mississippi Adoption Ban, it would be impossible for Susan to adopt H.M.G. under Mississippi law.2
23. Although both Kathy and Susan have together parented H.M.G. since birth, Kathy is the only legal parent on his birth certificate. H.M.G. has no other legal parent.
2 The advice given to Kathy and Susan regarding the effect of the Mississippi Adoption Ban is made without the intent to, and does not, waive attorney-client privilege or any other applicable privilege.
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24. H.M.G., who is now 15, is thriving by every measure. He earned straight A’s in his freshman year of high school, was the starting quarterback for his high school football team, and spent part of this past summer as a counselor at a camp for children with intellectual disabilities.
25. Kathy and Susan love H.M.G. very much and never want to worry about Susan’s parental rights being challenged under the law. Kathy and Susan want Susan to adopt H.M.G. and H.M.G. wishes to be adopted by Susan.
Jessica Harbuck and Brittany Rowell 26. Jessica Harbuck and Brittany Rowell have been together as a couple since 2010 and are engaged to be married. They are planning to wed in Jackson, Mississippi in January, 2016. They are residents of Rankin County, Mississippi. 27. Raising children together is an important part of what Jessica and Brittany look forward to in marriage. They hope to jointly adopt children through the foster care system so as to be able to provide a child in need with a loving and stable home. There are currently approximately 100 children in Mississippi who are in foster care and legally available for adoption, but who have not been matched with parents who can adopt them. 28. Jessica and Brittany are well-suited to adopt children, both financially and emotionally. Jessica is currently employed as a civil engineer while also pursuing a Master’s Degree in Environmental Engineering at Jackson State University. She will graduate in December 2015. Brittany is an office manager. She also has extensive experience working with infants at a daycare and as a nanny.
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Tinora Sweeten-Lunsford and Kari Lunsford 29. Tinora (“Tina”) Sweeten-Lunsford and Kari Lunsford have been together as a couple for more than 20 years, had a commitment ceremony 19 years ago, and were married two years ago in Washington State. They moved to Starkville, Mississippi over 12 years ago and have made Mississippi their home. They are residents of Oktibbeha County. 30. Tina has a Bachelor’s Degree in Anthropology from Western Washington University and a Master’s Degree in Nonprofit Management from Hamline University. Kari has a Bachelor’s Degree in Music Composition and Theory from Coe College and a Doctorate of Veterinary Medicine from the University of Minnesota. Tina is currently the Executive Director of the Columbus Arts Council and Kari is a veterinary clinician and professor at Mississippi State University. 31. Tina and Kari have longed to adopt children for many years. Because of Tina’s past experiences working with children with disabilities, including as a Program Director at the Mississippi State Early Childhood Institute, they are willing and able to adopt children with special needs. 32. Tina and Kari took concrete steps to adopt in Mississippi, including speaking with social workers and attending a training session for foster parents run by the Mississippi Department of Human Services (“MDHS”). However, at the training session, which was the first step necessary to qualify as a foster parent, a MDHS social worker told them that they were not eligible to become foster parents or to adopt children in Mississippi because they are lesbians. 33. In further discussions, the MDHS social worker conceded that there are children in the MDHS system who cannot be matched with suitable foster parents because of their special
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needs. The MDHS social worker stated that Tina and Kari could potentially be considered as foster parents of such a child, but only if just one of them pursued the adoption as a “single” person and if they agreed to live apart while MDHS reviewed their application, including for at least six months while MDHS completed a home study. Understandably, Tina and Kari were not willing to agree to such an irrational, unjust, and demeaning condition. It simply would not make any sense to do a home study of a home when only one of the two married women who intend to raise the adopted child together is present.
34. Following the Obergefell decision of June 26, 2015, Tina and Kari again took concrete steps to adopt in Mississippi. On or about July 1, 2015, on behalf of the couple, Tina contacted an official at MDHS and asked whether, in light of Obergefell, she and Kari would now qualify as foster or adoptive parents. On information and belief, the MDHS employee spoke with Defendant Berry. The employee then responded that the Mississippi Adoption Ban remained in place despite Obergefell and that it remained the law in Mississippi that couples of the same gender cannot adopt. In addition, the MDHS employee told Tina that the only way that MDHS would allow her and her wife to foster or adopt children is through legislative action overturning the Adoption Ban. B. Defendants
35. Defendant Mississippi Department of Human Services is an agency of the State of Mississippi, designated by Miss. Code Ann. §§ 93-17-1 through 93-17-31 to establish procedures for handling adoptions within Mississippi. 18-6:1 Miss. Code R. § G-1.II. Within MDHS, the Adoption Unit of the Division of Family and Children’s Services (“DFCS”) has responsibility for adoptive placements made by and through MDHS. Id.
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36. Defendant Richard “Rickey” Berry is the Executive Director of the Mississippi Department of Human Services, and is being sued here in his official capacity. Mr. Berry is the “chief administrative officer of the [MDHS],” and is charged by state law with the duty of “establish[ing] the organizational structure of the Mississippi Department of Human Services which shall include the creation of any units necessary to implement the duties assigned to the department and consistent with specific requirements of law, including . . . [the] Office of Family and Children’s Services.” Miss. Code Ann. §§ 43-1-2(2)–(5)(a). The Office of Family and Children’s Services, in turn, is responsible for the “development, execution and provision of services in the following areas: (a) protective services for children; (b) foster care; (c) adoption services.” Miss. Code Ann. § 43-1-51.
37. Defendant Phil Bryant is the Governor of the State of Mississippi and is being sued here in his official capacity. Governor Bryant is the chief executive of the State of Mississippi and is responsible for ensuring compliance with state law. Governor Bryant also bears responsibility for the formulation and administration of the policies of the executive branch, including administrative agency policies relating to adoption. Governor Bryant appoints the Executive Director of the Department of Human Services, the administrative body that manages adoption procedures within the State of Mississippi. Miss. Code Ann. § 43-1-2(2). Governor Bryant was and is acting under color of state law at all times relevant to this complaint.
38. Defendant Jim Hood is the Attorney General of the State of Mississippi and is being sued here in his official capacity. Attorney General Hood is the chief law enforcement officer of the State of Mississippi and is responsible for enforcing and insuring compliance with state law. Attorney General Hood was and is acting under color of state law at all times relevant to this complaint.
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39. Defendant Tenth District Chancery Court of Mississippi is a court of the State of Mississippi, with jurisdiction over adoption matters in Forrest County, Mississippi. Miss. Const. art. 6, § 159; see also https://courts.ms.gov/aboutcourts/chancerycourt_about.html (“Chancery Courts have jurisdiction over disputes in . . . domestic matters including adoptions . . . .”).
40. Defendant Fourteenth District Chancery Court of Mississippi is a court of the State of Mississippi, with jurisdiction over adoption matters in Oktibbeha County, Mississippi. Miss. Const. art. 6, § 159; see also https://courts.ms.gov/aboutcourts/chancerycourt_about.html (“Chancery Courts have jurisdiction over disputes in . . . domestic matters including adoptions . . . .”).
41. Defendant Twentieth District Chancery Court of Mississippi is a court of the State of Mississippi, with jurisdiction over adoption matters in Rankin County, Mississippi. Miss. Const. art. 6, § 159; see also https://courts.ms.gov/aboutcourts/chancerycourt_about.html (“Chancery Courts have jurisdiction over disputes in . . . domestic matters including adoptions . . . .”)..
42. Defendant Dawn Beam is a Chancellor in the 10th District Chancery Court, serving Forrest County, and is being sued in her official capacity. Chancellor Beam has the responsibility for resolving matters related to adoption petitions in Forrest County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-173. Chancellor Beam was and is acting under the color of state law at all times relevant to this complaint.
43. Defendant M. Ronald Doleac is a Chancellor in the 10th District Chancery Court, serving Forrest County, and is being sued in his official capacity. Chancellor Doleac has the responsibility for resolving matters related to adoption petitions in Forrest County and is one of
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the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-173. Chancellor Doleac was and is acting under the color of state law at all times relevant to this complaint.
44. Defendant Deborah J. Gambrell is a Chancellor in the 10th District Chancery Court, serving Forrest County, and is being sued in her official capacity. Chancellor Gambrell has the responsibility for resolving matters related to adoption petitions in Forrest County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-17-3. Chancellor Gambrell was and is acting under the color of state law at all times relevant to this complaint.
45. Defendant Johnny L. Williams is a Chancellor in the 10th District Chancery Court, serving Forrest County, and is being sued in his official capacity. Chancellor Williams has the responsibility for resolving matters related to adoption petitions in Forrest County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-17-3. Chancellor Williams was and is acting under the color of state law at all times relevant to this complaint.
46. Defendant Kenneth M. Burns is a Chancellor in the 14th District Chancery Court, serving Oktibbeha County, and is being sued in his official capacity. Chancellor Burns has the responsibility for resolving matters related to adoption petitions in Oktibbeha County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 9317-3. Chancellor Burns was and is acting under the color of state law at all times relevant to this complaint.
47. Defendant Dorothy W. Colom is a Chancellor in the 14th District Chancery Court, serving Oktibbeha County, and is being sued in her official capacity. Chancellor Colom
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has the responsibility for resolving matters related to adoption petitions in Oktibbeha County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-17-3. Chancellor Colom was and is acting under the color of state law at all times relevant to this complaint.
48. Defendant Jim Davidson is a Chancellor in the 14th District Chancery Court, serving Oktibbeha County, and is being sued in his official capacity. Chancellor Davidson has the responsibility for resolving matters related to adoption petitions in Oktibbeha County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-17-3. Chancellor Davidson was and is acting under the color of state law at all times relevant to this complaint.
49. Defendant John Grant is a Chancellor in the 20th District Chancery Court, serving Rankin County, and is being sued in his official capacity. Chancellor Grant has the responsibility for resolving matters related to adoption petitions in Rankin County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-173. Chancellor Grant was and is acting under the color of state law at all times relevant to this complaint.
50. Defendant John C. McLaurin, Jr is a Chancellor in the 20th District Chancery Court, serving Rankin County, and is being sued in his official capacity. Chancellor McLaurin has the responsibility for resolving matters related to adoption petitions in Rankin County and is one of the judicial officers charged with approving adoptions in that county. Miss. Code Ann. § 93-17-3. Chancellor McLaurin was and is acting under the color of state law at all times relevant to this complaint.
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51. Each of the Defendants is charged with enforcing the laws of the State of Mississippi related to adoptions.
52. Upon information and belief, the Defendants and other officers of the State of Mississippi interpret the Mississippi Adoption Ban to prohibit the adoption of children by gay and lesbian couples like Plaintiffs in this case.
53. Under Mississippi law, a home study is required before a child can be adopted by someone other than a relative or stepparent of the child. The home study must be performed by MDHS or a licensed adoption agency. Miss. Code Ann. § 93-17-11. Upon information and belief, MDHS and a number of licensed adoption agencies are refusing, because of the Mississippi Adoption Ban, to conduct home studies for married gay and lesbian couples who wish to adopt a child.
JURISDICTION AND VENUE 54. This action arises under the Constitution of the United States and the laws of the United States, including 42 U.S.C. § 1983. This Court therefore has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4). 55. Venue is proper under 28 U.S.C. § 1391 because Defendant MDHS’s offices are in this district and Defendant Berry, Defendant Bryant, and Defendant Hood all reside in the State of Mississippi. Venue is also proper because a substantial part of the events giving rise to this action occurred in this district. 56. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
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57. This Court has personal jurisdiction over Defendants because they are domiciled in Mississippi.
FACTS A. The Origins of the Mississippi Adoption Ban
58. Mississippi, like every other state in this nation, has a strong public interest in seeing that as many children as possible get adopted into stable, loving homes. See, e.g., Adoption and Safe Families Act of 1997, Pub. L. 105-89, 111 Stat. 2115 (articulating policy to encourage permanent adoptive homes); Miss. Code Ann. § 43-15-13(8) (advising that if a child in foster care cannot be reunified with a parent, the placement must be the “best available placement to provide a permanent living arrangement for the child.”). It therefore makes sense that eligibility to adopt in Mississippi is—with the irrational exception of gay couples—quite broad. Under Mississippi law and as published on the MDHS website, single persons and married couples are eligible to adopt in Mississippi, provided they are at least 21 years of age, have “income and insurance sufficient to meet the additional needs of an adopted child,” and “meet accepted emotional, intellectual and psychological standards to be good parents.” Who Can Adopt, MDHS, http://www.mdhs.state.ms.us/family-childrens-services/programsdfcs/adopt-a-child/who-can-adopt/.
59. Mississippi courts likewise focus on the best interests of the child when determining whether to approve adoptions. Indeed, “Mississippi has consistently and repeatedly held that the best interests of the child is a polestar consideration in the granting of any adoption.” In re Adoption of D.N.T., 843 So. 2d 690, 719 (Miss. 2003) (MacRae, P.J., dissenting) (emphasis added) (internal quotation marks omitted). In determining the best interests of the child, Mississippi courts most often look to the so-called “Albright factors”: (1)
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“[A]ge . . . health, and sex of the child”; (2) “continuity of care”; (3) “parenting skills” and “willingness and capacity to provide primary child care”; (4) “the employment of the parent and responsibilities of that employment”; (5) “physical and mental health and age of the parents”; (6) “emotional ties of parent and child”; (7) “moral fitness of parents”;3 (8) “the home, school and community record of the child”; (9) “the preference of the child”; (10) “stability of home environment and employment of each parent”; and (11) “other factors relevant to the parentchild relationship.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Under this analysis, all the factors must be considered, and “[d]ifferences in religion, personal values and lifestyles should not be the sole basis for custody decisions.” Id. While the Albright factors were developed in the custody context, Mississippi courts have applied them to adoption proceedings. See, e.g., Natural Mother v. Paternal Aunt, 583 So. 2d 614, 619 (Miss. 1991) (applying Albright factors to best interests analysis in adoption context).
60. The origins of the Mississippi Adoption Ban are illustrative of the kinds of improper animus that have all too often motivated laws that establish de jure discrimination against gay men and lesbians.
61. In 1999, the Mississippi Supreme Court decided the case of Weigand v. Houghton, which affirmed the decision of a chancellor to deny custody of a child (Paul) to his
3 While Mississippi can and should consider the moral fitness of parents in making decisions regarding adoption, the Supreme Court has held that “moral disapproval” of gay people is not a legitimate government interest. See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“Were there any doubt of [DOMA’s] far-reaching purpose [to express moral disapproval], the title of the Act confirms it: The Defense of Marriage.”); see also Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O’Connor, J., concurring) (“Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’” (quoting Romer v. Evans, 517 U.S. 620, 633 (1996))).
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biological father (David) and award custody to Paul’s biological mother instead solely because David was gay. 730 So. 2d 581, 583 (Miss. 1999).
62. The underlying facts in the Weigand case and the contrast between the potential homes for the child Paul were extreme. Paul’s father David, on the one hand, had a good job, a stable home, and did all within his power to care for Paul. Id. at 588. Indeed, the court observed that “David expresses a love and affection for Paul which was unquestioned . . . He has seen to Paul’s needs during the period of time in which Paul has lived with him by furnishing him with not only the necessities of life, but also . . . accompanying [him] to museums, dinners, shopping and amusement parks as well as other extracurricular activities. . . . David expressed a desire for Paul to receive the highest quality education possible.” Id. at 583–84. Paul’s mother, on the other hand, “has been transitory, works two jobs, and has limited time with the child” and thus left much of Paul’s care to “the unemployed stepfather [who] is a convicted felon, drinker, drugtaker, adulterer, wife-beater, and child-threatener.” Id. at 588 (McRae, J., dissenting). But because David was gay and was then living in a committed relationship with another man, the court awarded custody to Paul’s mother, despite the “psychologically and physically dangerous environment,” id., in which Paul would live with her and her husband. In other words, the court concluded that “a homosexual lifestyle,” standing alone, “ipso facto render[ed] one unfit for custody.” Id. at 594 (Banks, J., dissenting).
63. The next year, the Mississippi legislature, motivated by fear that a gay parent might actually succeed in obtaining custody of a child because a chancellor might conclude that it was in the best interests of the child, took action to amend Mississippi’s adoption law to make it clear that as far as Mississippi was concerned, gay people were, by definition, unfit parents.
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As noted above, the resulting statute provides unequivocally that: “Adoption by couples of the same gender is prohibited.” Miss. Code Ann. § 93-17-3(5).
64. In passing the Mississippi Adoption Ban, the Mississippi legislature created a single, overtly discriminatory exception to the comprehensive regulatory scheme that otherwise ensures that adoptive parents are selected in accordance with an individualized assessment of the abilities of each applicant and the best interests of each child. See, e.g., Miss. Code Ann. § 9317-11; 18-6:1 Miss. Code R. § D-V. Indeed, Mississippi has no other categorically exempt class of persons who are unable to adopt. Thus, while gay couples cannot adopt, convicted felons or persons who have been convicted of committing child abuse or domestic violence could theoretically be permitted to adopt under Mississippi law, or at least are not categorically exempt from filing an adoption petition in the same way that gay couples are.
65. In taking this drastic action, the Mississippi legislature took no steps to evaluate the impact it would have on children or families in Mississippi. There is no evidence to suggest that any studies were conducted or reviewed of gay parents or of children being raised in gay families; no testimony was taken from qualified experts in the field. Instead, the Mississippi legislature was clear in its sole intention to express fear and moral disapproval of gay people and their families.
66. State Senator Ron Farris, for example, expressed this motivation bluntly: “A homosexual relationship implies the exercise of illegal activities . . . and no child should be permitted to enter that type of setting.” Gina Holland, State Bans Adoption by Gay Couples, ACLU: Decision Likely to Bring Lawsuits, Sun Herald, April 20, 2000, at A4. State Senator Richard White supported the Mississippi Adoption Ban for similar reasons, explaining that gay people “have already made a mistake” and “can’t do the job of raising a child the right way.”
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Gina Holland, Parenting Hopes Put on Hold Law Says Gays Can’t Adopt, Sun Herald, July 9, 2000, at A12. State Representative Rita Martison agreed, noting that “[t]here is no way you can convince me that ‘Joe has two mommies’ is a value that we need to extend to the next generation.” Emily Wagster, Bill to Ban Adoptions by Same-Sex Couples Advances, ClarionLedger, Feb. 23, 2000, at 5B. During debate over the measure in the Mississippi House of Representatives, State Representative Gary Chism said Mississippi could hardly have been more explicit about the “policy” behind the Mississippi Adoption Ban, explaining his belief that the State of Mississippi “shouldn’t place [children] in a lifestyle that’s unnatural.” Id.
67. The amendment to the adoption statute was signed into law by then Mississippi Governor Ronnie Musgrove. Significantly, Governor Musgrove has come to regret his support for the Mississippi Adoption Ban and has repudiated it as bad public policy. Two years ago, in a moving piece Governor Musgrove published before Windsor and Obergefell were decided, he explained that “[t]he issue of equal rights for Lesbian, Gay, Bisexual and Transgender individuals has vexed politicians for decades. I have my own cloudy history with the issue, having supported a law in Mississippi that made it illegal for LGBT couples to adopt children.” Ronnie Musgrove, Portman’s Conversion Should Be a Lesson, Huffington Post Blog, (last updated May 20, 2013), http://www.huffingtonpost.com/ronnie-musgrove/portmans-conversionshoul_b_2918493.html.
68. Governor Musgrove’s statement leaves no doubt about his impermissible motivations in signing the bill into law, confirming that the Mississippi Adoption Ban was specifically driven by fears of gay people: “As I thought about this issue, I came to understand that in order to do everything possible to keep another child from growing up like I did, we cannot continue to blindly disqualify people from becoming parents . . . simply because many of
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us fear what we do not understand. Like a majority of Americans in recent years, I came to understand that fear of homosexuality was leading our governments—including the one I ran as Governor of Mississippi—to deny the equal rights to an entire segment of our population that are afforded all of us under the Constitution.” Id. (emphasis added).
69. But Governor Musgrove, like most other Americans, has evolved in his views and has changed his mind about the impact of Mississippi’s adoption policy: “There are far too many children in America in need of a loving home, who are shuttled between temporary homes and group shelters that fail to provide the stable, nurturing environment all children deserve. . . . And as I have gotten older, I came to understand, that a person’s sexual orientation has absolutely nothing to do with their ability to be a good parent. . . . Had I vetoed the [Mississippi Adoption Ban], the Legislature had more than enough votes to override my veto. Nonetheless, this decision that all of us made together has made it harder for an untold number of children to grow up in happy, healthy homes in Mississippi—and that breaks my heart.” Id. B. The Mississippi Adoption Ban Deprives Plaintiffs of Equal Dignity
70. The Mississippi Adoption Ban prohibits gay couples from adopting without any regard for their qualifications as parents or whether the adoption would be in the best interests of the child. The only disqualifying factor is the fact that the potential adoptive parents happen to be gay. Each and every moment that Defendants deny adoption to gay couples deprives Plaintiffs of their constitutional rights and causes them and their children to suffer irreparable harm. It also harms the significant number of children in Mississippi waiting to be adopted.
71. By barring gay couples from adopting, Mississippi’s adoption law demeans gay families and deprives them of equal dignity. As the Supreme Court recently explained in Obergefell v. Hodges, “[t]here is dignity in the bond between two men or two women who seek
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to marry and in their autonomy to make such profound choices.” 135 S. Ct. 2584, 2599 (2015). Among those “profound choices” is the choice to have children, which the State has traditionally provided to committed couples, particularly those who are married. Id. at 2600.
72. By singling out gay couples for denial of adoption rights, Mississippi relegates them to second-class status. Cf. Windsor, 133 S. Ct. at 2693 (“The avowed purpose and practical effect of the [Defense of Marriage Act] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”).
73. The irrational prejudice behind Mississippi’s blanket disqualification of gay couples from adoption is perhaps best demonstrated by the simple fact that gay couples are relegated to the second-class status created for them by the Mississippi Adoption Ban. No other category or group is singled out for a blanket adoption ban, not even people with characteristics that—unlike being gay—are clearly rationally related to one’s potential qualifications as an adoptive parent under the Albright factors.
74. Mississippi’s adoption law also demeans children who are actually being raised by two gay married parents in Mississippi, but who have only one legal parent. In the words of Justice Kennedy, the inability for the other parent to legally adopt under Mississippi’s laws “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694.
75. In these ways and more, Mississippi’s law has caused Defendants and other state officials to deny Plaintiffs the rights, benefits, and duties that come with adoption. Child rearing plays a unique role in American society, with significant social, economic, and legal implications. In recognition of the deep and abiding commitment that married couples make to
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their children, our legal system provides benefits and duties to legally recognized parents that are not otherwise available. These include numerous protections involving all aspects of daily life. See generally, e.g., Miss. Code Ann. tit. 37 (Education); Miss. Code Ann. tit. 41 (Public Health); Miss. Code Ann. tit. 43 (Public Welfare); Miss. Code Ann. tit. 91 (Trusts and Estates); Miss. Code Ann. tit. 99 (Criminal Procedure). It is hard to imagine a regime more at odds with creating and maintaining stable relationships within which children may flourish.
76. The absence of a legal relationship between parent and child often becomes critical in situations that are already stressful or traumatic for families, including medical emergencies and the death of a parent. As Judge Daughtrey explained in her dissent in DeBoer v. Snyder in the United States Court of Appeals for the Sixth Circuit, “should anything happen to that adoptive parent, there is no provision in Michigan’s legal framework that would ‘ensure that the children would necessarily remain with the surviving non-legal parent.’” 772 F.3d 388, 425 (6th Cir. 2014) (Daughtrey, J., dissenting), rev’d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
77. The same is true for Plaintiffs here. Kathy and Susan have lived in fear, especially in the first few years after H.M.G. was born, that Susan could lose H.M.G. if something were to happen to Kathy. Donna and Jan understandably share similar concerns and anxiety, which they feel particularly acutely when Donna is deployed away from home. During deployments, Jan and H.M.S.P. worry not only for Donna’s safety, as does the family of every service member on duty away from home, but they also have the added distress that, if something were to happen to Donna, they could lose each other as well.
78. Mississippi’s Adoption Ban conveys the message that gay families are inherently less valuable than all other families and should not be afforded the same dignity under the law.
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It is a public, government-sponsored rejection of one of the most important relationships in the lives of gay Mississippians, and it unconstitutionally relegates them and their families to secondclass citizenship. C. The Mississippi Adoption Ban Contradicts Sound Public Policy Encouraging
Adoption 79. Mississippi’s discriminatory adoption law also irreparably harms children in need of adoptive parents. 80. MDHS has approximately 400 children in protective custody who are waiting to be adopted. Approximately 100 of those children are currently in foster care and have not yet been matched with adoptive parents. Mississippi Heart Gallery: Overview, 200 Million Flowers, Inc., http://www.200millionflowers.org/adoption/dhs-kids (last visited Aug. 4, 2015). Profiles of children in the Department of Human Services’ care in Mississippi who are waiting to be adopted, such as Aeron, “a sweet, out-going 8-year old boy” who “loves eating soul food” or Joyce, a 17-year-old 10th grader, who is a “good student” and “likes to climb trees,” are available at: http://www.200millionflowers.org/adoption/dhs-kids/available-kids. 81. Many of the children who have not been adopted have serious medical, emotional, or psychological needs. These needs stem from backgrounds of adversity, loss, and instability, such as parental abuse and neglect, removal from their homes, and subsequent (sometimes multiple) temporary placements. Many of these children like Joyce are older, which makes them still less likely to be adopted. Whatever the reason, there is a backlog of children waiting for permanent, safe, and loving families, and it is well documented that when these children are adopted and become part of a permanent family, their prospects for a happy, healthy, and productive future are greatly enhanced.
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82. Mississippi’s legislature and MDHS have enacted a comprehensive regulatory scheme to ensure that adoptive parents are selected in accordance with an individualized assessment of the abilities of each applicant and the best interests of the child. See, e.g., Miss. Code Ann. § 93-17-11; 18-6:1 Miss. Code R § D-V. There can be no question that Mississippi otherwise strongly encourages parents to adopt. See 18-6:1 Miss. Code R § G-1.II (explaining that “[t]he primary purpose of the DFCS’s Adoption Program is to foster permanent connections for children,” and that the general functions of MDHS include “[s]erving as a consultant to agencies providing adoption services,” recommending legislation that further protects children and adoptive parents, and informing the public of adoption practices from a legal perspective).
83. Prohibiting gay and lesbian married couples from adopting—couples that tend to be more motivated to adopt—means that many of the children waiting to be adopted will have to wait longer, and some will age out of foster care without ever having a permanent, stable family of their own.
84. Furthermore, Mississippi incurs significant costs running the foster care system, costs that are directly tied to the number of children in the system waiting to be adopted. The Williams Institute has estimated that if no gay and lesbian person were allowed to adopt, it could add $87 million to $130 million in foster care system expenditures each year. Gary J. Gates, et al., Adoption and Foster Care by Gay and Lesbian Parents in the United States, The Williams Institute at 19 (Mar. 2007), http://www.urban.org/research/publication/adoption-and-foster-carelesbian-and-gay-parents-united-states/view/full_report. Preventing qualified gay parents from adopting leaves more children in foster care for longer periods of time and this, in turn, costs the state more money.
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85. In the Campaign for Southern Equality case, Judge Reeves noted the irony of preventing gay couples who want to provide loving, stable households from adopting, observing that: “Like many states, Mississippi suffers when heterosexual parents have unprotected sex, bear children, and cannot take care of them. A number of those children end up in the foster care system, the juvenile justice system, and the children’s mental health system. These children need homes and caretakers that love them. Same-sex couples can help. As one Mississippi mom explained, ‘Children are precious to gay people because they are so hard to come by. We have to plan for them; they don’t come unexpectedly. And we are blessed to have them, we love them dearly.’” Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 943–44 (S.D. Miss. 2014) (quoting Charlotte Graham, Religion and Same–Sex Marriages, The Clarion–Ledger, Sept. 14, 1996), aff’d, No. 14-60837, 2015 WL 4032186 (5th Cir. July 1, 2015).
86. The Mississippi Adoption Ban deprives some of the most vulnerable children in foster care in Mississippi from finding stable, loving families. Children likely to wait in temporary care longer, such as children who are LGBT themselves, are disadvantaged by restrictions on adoption and fostering by gay married couples. Research demonstrates that gay and lesbian couples have an understanding of how it feels to be different and may have overcome oppression and discrimination in their own lives. U.S. Dep’t of Health & Human Servs., Administration for Children and Families, Working with Lesbian, Gay, Bisexual, and Transgender (LGBT) Families in Adoption at 5 (Jan. 2011), https://www.childwelfare.gov/pub PDFs/f_profbulletin.pdf.
87. Gay and lesbian couples, like Plaintiffs Tina and Kari, may also be more willing than opposite-sex couples to adopt children viewed as different—including special needs children, “who are among the most difficult to place,” and LGBT youth. Placements with gay
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and lesbian couples also can be beneficial for some LGBT young people, as gay parents can draw on personal experience to connect with and assist LGBT youth, who are over-represented in, and chronically underserved by, the foster care system. See generally Colleen Sullivan et al., Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, (2001), http://www.jimcaseyyouth.org/sites/default/files/documents /youthinthemargins_2001.pdf. Many more gay couples in Mississippi would like to provide such homes for children through adoption.
88. In addition, many gay people raising children are members of racial or ethnic minorities. Specifically, one in three people in lesbian relationships who are members of racial or ethnic minorities (35%) are raising a child under age 18, compared to 24% for their white counterparts. Gary J. Gates, Demographics of Married and Unmarried Same-sex Couples: Analyses of the 2013 American Community Survey, The Williams Institute (Mar. 2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Demographics-Same-Sex-CouplesACS2013-March-2015.pdf. For gay men, the same comparison is 16% versus 6%, respectively. Id. These facts are not insignificant because, in 2013, the majority of children in foster care in Mississippi were non-white (54.8%). Children’s Bureau of the Dep’t of Health & Human Servs., Race/Ethnicity of Children in Foster Care (%), http://cwoutcomes.acf.hhs.gov/data/tables/foster_ race_incareoctoberones?states[]=25&state=&region=. D. The Mississippi Adoption Ban Harms the Children of Gay Parents
89. Gay couples, many of whom are now married, provide safe, loving, and nurturing homes to children all across the country, including in Mississippi. By denying these households in Mississippi the ability to adopt, the State does not encourage the stability or well-being of the family or community in which they live, it only undermines it.
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90. As noted in paragraphs 15 and 24 above, Kathy and Susan’s son H.M.G. and Donna and Jan’s daughter H.M.S.P. are thriving by any measure. But that is a testament to Kathy and Susan’s and Donna and Jan’s extraordinary ability to raise healthy, well-adjusted children despite the impediments placed on their ability to do so by the discriminatory Mississippi Adoption Ban. In other words, Kathy and Susan and Donna and Jan have had to work overtime to ensure that their children understand—despite the State’s contrary message— that their family is as good as everyone else’s.
91. Will Miller, a 28-year-old Mississippian whose mothers have been together for 23 years, has explained that he never “underst[ood] what all the fuss was about:” “They loved me, and that was all that mattered. It’s all that should matter. Indeed, my childhood as the son of lesbian parents was extraordinary in that it was simply ordinary.” Statement of Will Miller to Family Equality Council (Jul. 3, 2014), Brief for Family Equality Council et al. as Amici Curiae in Support of Petitioners at 12, Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (No. 14-556).
92. The positive experiences that children of gay parents have are consistent with decades of social science findings: children of same-sex parents and children of different-sex parents fare equally well academically, psychologically, and socially. All of the leading social service organizations agree that gay and lesbian parents do just as well as straight parents at raising happy, healthy, and well-adjusted children. There is no serious or legitimate dispute on this issue among social scientists and mental health professionals.
93. As the district court for the Southern District of Mississippi observed in the Campaign for Southern Equality case:
A final stereotype was that gay and lesbian citizens were unfit parents who would harm children. The Executive Director of the American Family Association, a family values group in Tupelo, argued that children raised in same-sex households have “problems in relationships with members of the opposite sex,” are 29 times
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more likely to be the victim of incest, suffer a variety of psychological problems, and are at “greater risk of becoming homosexual” themselves. Mike Crook, Should Gay Adoption Be Banned? “Yes”, The Clarion–Ledger, Mar. 26, 2000.
Proponents of the above notions have had the opportunity to prove these theories in court, but failed. Two of the trials in which these proponents’ theories were debunked are summarized here.
The champions of California’s same-sex marriage ban promised to show 23 “specific harmful consequences” that families, children, and society would suffer if same-sex marriage was allowed to recommence in that state. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 931 (N.D. Cal. 2010). At trial, however, they “provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.” Id. The expert testimony that was presented showed that “gays and lesbians are no more likely than heterosexuals to pose a threat to children”; “children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents”; “same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability”; and adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.” Id. at 935. The court concluded that “children of same-sex couples benefit when their parents can marry.” Id. at 973.
The State of Michigan also had an opportunity to prove, at trial, the harms that would develop from same-sex marriage. See DeBoer v. Snyder, 973 F. Supp. 2d 757, 761–68 (E.D. Mich. 2014). Its main expert witness presented testimony that was “entirely unbelievable and not worthy of serious consideration.” Id. at 766. The state’s other experts were no better: the court concluded that they all “clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.” Id. at 768. As to the alleged harm to children presented by homosexuals, the court noted that the American Medical Association, American Academy of Pediatrics, American Psychological Association, and other professional organizations concerned for the welfare of children have expressed “support for parenting, adoption, and/or fostering by lesbian and gay couples.” Id. at 763.
64 F. Supp. 3d at 938–39 (Reeves, J.).
94. Significantly, in the Mississippi marriage case neither Governor Bryant nor
Attorney General Hood argued, either before Judge Reeves or at the Fifth Circuit, that gay
couples should not be permitted to marry because they are unfit parents or even worse as
compared to straight parents. See Brief of Governor Phil Bryant and Attorney General Jim Hood
in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Campaign for S. Equal. v. Bryant,
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64 F. Supp. 3d 906 (S.D. Miss. 2014) (No. 3:14-cv-818); Transcript of Oral Argument, Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) (No. 3:14-cv-818); Brief of Phil Bryant and Jim Hood as Appellants, Campaign for S. Equal. v. Bryant, 2015 WL 4032186 (5th Cir. July 1, 2015) (No. 14-60837); Reply Brief of Phil Bryant and Jim Hood as Appellants, Campaign for S. Equal. v. Bryant, 2015 WL 4032186 (5th Cir. July 1, 2015) (No. 14-60837).
95. In fact, more than 100 studies of youths raised by gay and lesbian parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals have concluded that children and adolescents raised by gay parents are as successful psychologically, emotionally, and socially as children and adolescents raised by straight parents. See Expert Affidavit of Michael Lamb, Ph.D., Ex. B at 2–8, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2011) (No. 10 Civ. 8435) (listing studies). As Professor Lamb has explained: “[T]he research on gay parent families is a robust body of research that meets rigorous methodological standards demanded for publication in the leading academic journals. There is simply no basis on which to dismiss this body of research as invalid or unreliable due to methodological deficiencies.” Supplemental Expert Affidavit of Michael Lamb, Ph.D. at 6–7, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2011) (No. 10 Civ. 8435).
96. The American Psychological Association, for example, has stated that: “Assertions that heterosexual couples are better parents than same-sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, are not supported by the cumulative scientific evidence. Rather, the vast majority of scientific studies that have directly compared these groups have found that gay and lesbian parents are as fit and
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capable as heterosexual parents, and that their children are as psychologically healthy and well adjusted. More research has focused on lesbian mothers than on gay fathers, but published studies of gay fathers find that they are as fit and able parents as heterosexual fathers.” Brief for the American Psychological Association et al. as Amici Curiae in Support of Petitioners at 22– 23, Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (No. 14-556). Indeed, “the parenting abilities of gay men and lesbians—and the positive outcomes for their children—are not areas where credible scientific researchers disagree.” Id. at 26.
97. Similarly, the American Academy of Pediatrics has concluded that: “There is extensive research documenting that there is no causal relationship between parents’ sexual orientation and children’s emotional, psychosocial, and behavioral development. Many studies attest to the normal development of children of same-gender couples when the child is wanted, the parents have a commitment to shared parenting, and the parents have strong social and economic supports.” Am. Acad. of Pediatrics, Policy Statement, Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics 827, 828 (Apr. 2013). The American Medical Association has likewise adopted a policy supporting legislative and other reforms to allow adoption by gay and lesbian couples. Am. Med. Ass’n, Policy H-60.940, Partner Co-Adoption, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.page?.
98. The National Association of Social Workers has also determined that “[t]he most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to heterosexual parents and their children that were
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included in the studies.” Nat’l Ass’n of Soc. Workers, Nat’l Ass’n of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193, 194 (1997).
99. By preventing children from being adopted by otherwise qualified married gay couples, the Mississippi Adoption Ban does not improve or in any way affect the stability of families with opposite-sex parents, and instead circumvents the regulatory system that otherwise ensures that adoptions proceed in the best interests of the child.
CAUSES OF ACTION CLAIM ONE: EQUAL PROTECTION 100. Plaintiffs incorporate by reference paragraphs 1 through 99, supra, as if set forth fully herein. 101. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 102. The Mississippi Adoption Ban at issue denies to persons within Mississippi the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. By allowing straight couples to adopt, while refusing to allow gay couples to do the same, the State of Mississippi impermissibly distinguishes among similarly situated people by discriminating solely on the basis of sexual orientation. By refusing to permit adoption by gay couples, the State of Mississippi deprives those couples of all the adoption-related rights and duties that Mississippi offers straight couples, rendering them unequal before the law and denying their relationships the dignity to which they are constitutionally entitled. 103. Notably, the Supreme Court in Obergefell recognized the close connection between the right for gay couples to marry and for gay couples to adopt. See Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (“[W]hile the States are in general free to vary the benefits
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they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include . . . adoption rights . . .”).
104. The Equal Protection Clause “direct[s] that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus, “even when the group discriminated against is not a ‘suspect class,’ courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination.” Baskin v. Bogan, 766 F.3d 648, 654 (7th Cir. 2014). A law cannot be sustained where the proffered reasons for the law are simply irrational. Further, classifications that are “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective” are subject to especially searching judicial review. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Mississippi Adoption Ban fails to satisfy the guarantees of the Equal Protection Clause under any level of judicial review.
105. It is now well-accepted that a law cannot withstand even rationality review where the “purpose” of the classification is “disadvantaging the group burdened by the law.” Romer v. Evans, 517 U.S. 620, 633 (1996). The Supreme Court has thus made clear that a law fails rational basis review if it was passed through “animosity,” or the “bare . . . desire to harm a politically unpopular group.” Id. at 634. Moreover, as Justice Kennedy has explained, “animus” does not necessarily require overt hatred or hostility, but may instead reflect merely an “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring).
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106. Animus, as that term has been construed in cases like Garrett and Lawrence v. Texas, 539 U.S. 558 (2003), is the sole basis for the discrimination borne by gay couples in Mississippi. There is no legitimate governmental interest furthered by the statutory provision presently at issue, which serves only to deny gay couples the right to adopt. By relegating gay couples and their families to a disfavored legal status, Mississippi impermissibly creates a second-class caste among its citizens, in violation of the Fourteenth Amendment’s guarantee of equal protection of the laws.
107. The Supreme Court in Windsor and Obergefell applied some form of heightened scrutiny to review and strike down laws that discriminated against gay people by not allowing them to marry and not recognizing their lawful marriages performed elsewhere. See Windsor, 133 S. Ct. at 2696–97; Obergefell, 135 S. Ct. at 2608; see also SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014); Windsor, 699 F.3d 169, 181 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013).
108. When determining whether to apply heightened scrutiny to laws that discriminate against a particular group of people, courts consider the following factors: (1) whether the group has suffered a history of discrimination; (2) whether the group members differ from other individuals in a way that bears on their ability to perform or contribute to society; (3) whether the group is defined by “obvious, immutable or distinguishing characteristics”; and (4) whether the group lacks political power because prejudice against the group tends seriously to curtail the operation of those political processes ordinarily to be relied upon. Windsor, 699 F.3d at 181–82. Each of these four factors militates strongly in favor of applying heightened scrutiny here. Indeed, a federal district court in Mississippi evaluating whether heightened scrutiny should apply to discrimination against gay people recently concluded that “[i]ntermediate scrutiny is
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most appropriate.” Campaign for S. Equal., 64 F. Supp. 3d at 941 (though ultimately concluding that circuit precedent foreclosed the court from applying that appropriate form of scrutiny).
109. Gay people have endured a long and painful history of popular and statesponsored discrimination within the United States, including within Mississippi. See Obergefell, 135 S. Ct. at 2596–97; Windsor, 133 S. Ct. at 2693–95; Campaign for S. Equal, 64 F. Supp. 3d at 930–37.
110. This discrimination is based solely on their sexual orientation. It bears no relationship to their ability to contribute to society at large. See Obergefell, 135 S. Ct. at 2596; Windsor, 133 S. Ct. at 2694–95; Campaign for S. Equal., 64 F. Supp. 3d at 937.
111. Sexual orientation is an innate and immutable trait of all people. See Obergefell, 135 S. Ct. at 2594, 2596; Campaign for S. Equal., 64 F. Supp. 3d at 939.
112. Gay people lack the political power to protect themselves through the democratic process by overturning discriminatory laws and passing laws that would protect their rights. See Windsor, 133 S. Ct. at 2693; Campaign for S. Equal., 64 F. Supp. 3d at 940, 945, 948.
113. The Mississippi Adoption Ban also violates the Fourteenth Amendment’s Equal Protection Clause because it discriminates on the basis of sex. As Judge Berzon explained in her concurrence in the Ninth Circuit’s decision in Latta v. Otter: “[I]t can make no difference to the existence of a sex-based classification whether the challenged law imposes gender homogeneity . . . or gender heterogeneity. Either way, the classification is one that limits the affected individuals’ opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction.” 771 F.3d 456, 481 (9th Cir. 2014) (Berzon, J., concurring). The distinction Mississippi draws between straight and gay married couples with respect to parenting is implicitly based on an individual’s gender. See id. at 484 (“Laws that
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strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals’ gender are sex discriminatory and must be subjected to intermediate scrutiny.” (citing J.E.B. v. Alabama, 511 U.S. 127, 140–42 (1994))).
CLAIM TWO: DUE PROCESS 114. Plaintiffs incorporate by reference paragraphs 1 through 113, supra, as if set forth fully herein. 115. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. The provision of the Mississippi Code presently at issue, § 93-17-3(5), deprives gay couples of the liberties guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Mississippi Adoption Ban impinges on the fundamental liberty interest of gay couples to parent their children and denies them an essential component of their marriages. 116. As the Supreme Court proclaimed in Obergefell, “[u]nder the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ . . . [T]hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” 135 S. Ct. at 2597. The Court further held that when “same-sex couples are denied all the benefits afforded to opposite-sex couples [they] are barred from exercising a fundamental right.” Id. at 2604. Additionally, the Court reaffirmed the longstanding constitutional principle that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Id. at 2606 (quoting W. V. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (internal quotation marks omitted)).
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117. The freedom to have and raise children is one of the most basic civil rights. The deprivation of this right constitutes a denial of due process of law in violation of the Due Process Clause of the Fourteenth Amendment. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”). As is the case with heightened scrutiny under the Equal Protection Clause for a suspect class, “interference with a fundamental right warrants the application of strict scrutiny.” Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014).
118. “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Obergefell, 135 S. Ct. at 2600 (quoting Zablocki v. Redhail, 434 U.S. 374, 384 (1978)). “Many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.” Id. “Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents.” Id. “This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.” Id.
119. By denying gay couples the right to be parents and “bring up children,” Defendants stigmatize gay couples, their children, and their families by depriving them of the dignity and stature afforded to straight, married couples through governmental recognition of one of their most cherished relationships. Gay couples are denied the ability “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. (quoting Windsor, 133 S. Ct. at 2694–95). “[T]heir children suffer the stigma of knowing their families are somehow lesser.” Id.
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120. Defendants’ enforcement of § 93-17-3(5) also harms children in Mississippi by categorically denying those in the foster care system the possibility of having adoptive parents and denying children being raised by gay and lesbian couples the possibility of having two legal parents. The State has a duty to act in the best interests of—and certainly not to harm—children in its custody.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65 121. Plaintiffs incorporate by reference paragraphs 1 through 120, supra, as if set forth fully herein. 122. This case presents an actual controversy because Defendants’ present and ongoing denial of equal protection and due process to Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment. 123. Plaintiffs seek an injunction to protect their constitutional rights and avoid the injuries described in this complaint. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law. 124. The State of Mississippi will incur no or little burden in allowing gay couples to adopt and in recognizing valid adoption of children by gay couples, whereas the hardship for Plaintiffs of being denied equal treatment and the denial of a fundamental right is severe. The balance of hardships weighs strongly in favor of Plaintiffs.
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Case 3:15-cv-00578-DPJ-FKB Document 23 Filed 09/11/15 Page 41 of 43 PRAYERS FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court enter an order: 1. Declaring that Miss. Code Ann. § 93-17-3(5), as applied to Plaintiffs and on its face, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; 2. Preliminarily and permanently enjoining the enforcement and application of Miss. Code Ann. § 93-17-3(5); 3. Awarding Plaintiffs their reasonable costs, expenses, and attorneys’ fees pursuant to 42 U.S.C. § 1988; and 4. Granting such other relief as the Court may deem just, equitable, and proper.
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Respectfully submitted,
Dated: September 11, 2015
MCDUFF & BYRD
Robert B. McDuff Bar No. 2532
Sibyl C. Byrd Bar No. 100601
Jacob W. Howard Bar No. 103256
767 North Congress Street Jackson, Mississippi 39202 Tel:(601) 969-0802 Fax: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com jake@mcdufflaw.com
BRAZIL & BURKE, P.A.
Meghann K. Burke* 77 Central Avenue, Suite E Asheville, NC 28801 Tel: (828) 255-5400 Fax: (828) 258-8972 meghann@brazilburkelaw.com
* Admitted pro hac vice

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By:__/s/Roberta A. Kaplan______ Roberta A. Kaplan* Lead Counsel Andrew J. Ehrlich* Joshua D. Kaye* Jacob H. Hupart* Alexia D. Koritz*
1285 Avenue of the Americas New York, NY 10019-6064 Tel:(212) 373-3000 Fax:(212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com akoritz@paulweiss.com
ELLIS LAW FIRM, PLLC.
Dianne Herman Ellis Bar No. 102893
1145 Robinson Avenue, Ocean Springs, MS 39564 Tel: (228) 215-0037 Fax: (228) 284-1889 diannernjd@aol.com

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

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CERTIFICATE OF SERVICE
I hereby certify that, on September 11, 2015, I electronically filed the foregoing
with the Clerk of the Court using the ECF system which sent notification of such filing to the
following:
The Mississippi Department of Human Services Office of the Attorney General of Mississippi Walter Sillers Building Suite 1200 550 High Street Jackson, MS 39201
Richard Berry, in his official capacity as Executive Director of the Mississippi Department of Human Services
Office of the Attorney General of Mississippi Walter Sillers Building Suite 1200 550 High Street Jackson, MS
Governor Phil Bryant Office of the Attorney General of Mississippi Walter Sillers Building Suite 1200 550 High Street Jackson, MS 39201
Attorney General Jim Hood Office of the Attorney General of Mississippi Walter Sillers Building Suite 1200 550 High Street Jackson, MS 39201
By: /s/ Roberta A. Kaplan Roberta A. Kaplan
Admitted pro hac vice N.Y. Bar No. 2507093 Paul, Weiss, Rifkind, Wharton & Garrison LLP New York, NY 10019 Tel: (212) 373-3000 rkaplan@paulweiss.com
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 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY, et al.

PLAINTIFFS

v.

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

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, et al.

DEFENDANTS

ORDER

Plaintiffs seek a declaration that Mississippi Code section 93-17-3(5)—which prohibits

adoption by married gay couples—violates the Due Process and Equal Protection Clauses of the

United States Constitution. They named as defendants the Mississippi Department of Human

Services (“DHS”), DHS’s Executive Director, three chancery courts, nine chancellors from those

three courts, and Mississippi’s Governor and Attorney General.

Defendants have offered a tepid defense of the statute itself, focusing instead on

Plaintiffs’ right to sue them. They argue that even assuming section 93-17-3(5) is

unconstitutional, Plaintiffs lack Article III standing and cannot overcome Eleventh Amendment

immunity. The Governor, Attorney General, and Executive Director further contend that there is

no injury because those Defendants either lack authority to enforce the ban or would not enforce

it to impede an otherwise valid gay adoption. For the reasons that follow, the Court finds that

Plaintiffs have standing as to DHS’s Executive Director but no other defendant. And finding a

justiciable claim, Plaintiffs’ motion for preliminary injunction is granted.

I. Background and Procedural History

Mississippi Code section 93-17-3(5) states simply: “Adoption by couples of the same

gender is prohibited.” Four lesbian couples residing in Mississippi and two advocacy groups

now challenge that statute under the Due Process and Equal Protection Clauses of the United States Constitution. Two of the couples seek a private adoption involving the biological child of one of the partners. The others desire adoption through Mississippi’s foster-care system.
After Plaintiffs initiated this suit, the parties filed the following motions that are now before the Court: (1) the Motion for Preliminary Injunction [13] filed by four of the individual plaintiffs; (2) the Motion to Dismiss for Lack of Subject Matter Jurisdiction [15] filed by Defendants DHS; John Davis, its Executive Director1; Governor Phil Bryant; and Attorney General Jim Hood (“the “Executive-Branch Defendants”); (3) the Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim [52] filed by Defendants the Tenth, Fourteenth, and Twentieth District Chancery Courts and Judges Dawn Beam, M. Ronald Doleac, Deborah J. Gambrell, Johnny L. Williams, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, John Grant, and John C. McLaurin, Jr. (the “Judicial Defendants”); and (4) the Executive-Branch Defendants’ Motion to Dismiss the Plaintiffs’ First Amended Complaint for Lack of Subject Matter Jurisdiction [55].
The Court conducted an evidentiary hearing on these motions on November 6, 2015. The issues are ripe for decision, and the Court is prepared to rule. This Order will first address Defendants’ various motions to dismiss before turning to the motion for preliminary injunction. II. Motions to Dismiss
All Defendants seek dismissal under Rule 12(b)(1) of the Federal Rules of Civil
1According to the Notice of Substitution Pursuant to F.R.C.P. 25(d) [66] filed February 1, 2016, Richard Berry, the former Executive Director of DHS who was initially named as a defendant in this case, retired effective January 31, 2016. Under Rule 25(d), Davis was automatically substituted as a defendant for Berry.
2

Procedure and have submitted record evidence to support their motions.
In determining whether the court has subject matter jurisdiction, we must accept as true the allegations set forth in the complaint. The court is also empowered to consider matters of fact which may be in dispute. Therefore, a trial court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. The party invoking federal jurisdiction bears the burden of establishing standing.
Crane v. Johnson, 783 F.3d 244, 250–51 (5th Cir. 2015) (citation and internal quotation marks
omitted). During the hearing, the parties agreed that this standard applies. Accordingly, the
Court has considered the First Amended Complaint, the parties’ record evidence, and the
testimony presented during the hearing.
A. DHS and the Chancery Courts
Plaintiffs conceded that DHS and the chancery courts are entitled to Eleventh
Amendment immunity. Accordingly, those parties are dismissed without prejudice to refiling in
state court.
B. Article III Standing
The Executive-Branch and Judicial Defendants contend that Plaintiffs lack standing to
bring suit in federal court. While Plaintiffs attempt to marginalize this argument as a mere
technicality, standing is a threshold matter to the justiciability of claims in federal court under
Article III of the Constitution. Indeed, it is a “basic proposition that the Constitution limits our
jurisdiction to ‘Cases’ and ‘Controversies.’” Contender Farms, L.L.P. v. U.S. Dep’t of Agric.,
779 F.3d 258, 264 (5th Cir. 2015) (citing U.S. Const. art. III, § 2). Significantly,
[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or
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executive acts. The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170, 2 L. Ed. 60 (1803), and must “‘refrai[n] from passing upon the constitutionality of an act . . . unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 598 (2007) (some citations and internal quotation marks omitted). “At bottom, ‘the gist of the question of standing’ is whether the parties invoking standing have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’” Mass. v. Envtl. Prot. Agency, 549 U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Standing is not, therefore, a mere technicality, and its applicability differs in this case with respect to the various Plaintiffs and the officials against whom they bring this suit. See Fontenot v. McCraw, 777 F.3d 741, 746 (5th Cir. 2015) (“The court must evaluate each plaintiff’s Article III standing for each claim; ‘standing is not dispensed in gross.’”) (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).
1. The Judges Plaintiffs did not initially sue the Judicial Defendants. But when the Executive-Branch Defendants argued that only judges are empowered to apply section 93-17-3(5), Plaintiffs amended their complaint to assert claims against them. The problem is that the judges are not the Plaintiffs’ adversaries. Bauer v. Texas is directly on point. 341 F.3d 352 (5th Cir. 2003). In that case, a woman who had been involuntarily subjected to guardianships challenged the constitutionality of the
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Texas laws creating them, naming as a defendant the judge who had previously placed her in one. The Fifth Circuit noted that the “case or controversy requirement of Article III of the Constitution requires a plaintiff to show that he and the defendants have adverse legal interests.” Id. at 359. And when a judge acts in his or her adjudicatory capacity—as opposed to administrative capacity—no such adversity exists. Id. Thus, “[o]rdinarily, no case or controversy exists between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” Id. at 361 (citing In re Justices of The Supreme Ct. of P.R., 695 F.2d 17, 19 (1st Cir. 1982)).
In their briefs, Plaintiffs assert that judges in Mississippi deciding adoption petitions are not acting in an adjudicatory capacity, but that argument is not persuasive and was essentially abandoned during argument.2 A petition for adoption initiates a pending case that is brought in chancery court and falls within the chancellor’s statutorily defined judicial functions. Even with respect to section 93-17-3(5), state-court judges possess the power of judicial review. The Court concludes that the chancellors act in an adjudicative capacity when hearing adoption petitions.
Finally, Plaintiffs offered an alternative argument that the judges should remain in the case as nominal parties to aid in enforcement of any relief they may obtain. There is some non-
2In the immunity context, courts should consider four factors when determining whether a judge acts in his or her adjudicatory capacity:
(1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity. Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (quoting Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993)).
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binding support for such steps when no other party is properly before the court. See generally In re Justices of Supreme Ct. of P.R., 695 F.2d at 22 (discussing issue while finding plaintiffs lacked standing). But even assuming the argument has merit, which is not apparent, this is not such a case. The claims against the judges are dismissed with prejudice.
2. Executive-Branch Defendants To establish standing with respect to the Executive-Branch Defendants, Plaintiffs must demonstrate three elements: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
a. Injury in Fact Defendants initially challenged this prong, but they elected to emphasize the remaining prongs in their reply and again during argument. Defendants were correct to take that approach given the tests that apply to statutes—like this one—that impose a barrier for some individuals but not others. “In Lujan, the Court explained a key question is ‘whether the plaintiff is himself an object of the government action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.’” Duarte ex rel. Duarte v. City of Lewisville, Tex., 759 F.3d 514, 517–18 (5th Cir. 2014) (quoting Lujan, 504 U.S. at 561–62). As the United States Supreme Court later explained in Northeastern Florida Chapter of Associated General Contractors of
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America v. City of Jacksonville, Florida, [w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.
508 U.S. 656, 666 (1993); see also id. (“To establish standing, therefore, a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.”).
The Fifth Circuit has faithfully applied this rule. Just last year, the court held in Contender Farms, L.L.P., that “[i]f a plaintiff is an object of a regulation ‘there is ordinarily little question that the action or inaction has caused him injury.’” 779 F.3d at 264 (quoting Lujan, 504 U.S. at 561–62). The same result occurred in Time Warner Cable, Inc. v. Hudson, where a newly enacted state law “single[d] out certain incumbent [cable] operators as ineligible for the benefit of a statewide franchise” made available to their competitors. 667 F.3d 630, 636 (5th Cir. 2012). The court found an injury in fact, noting that “[w]hen the government targets certain speakers for the exclusion of benefits bestowed on similar parties, ‘no further showing of suffering based on that unequal positioning is required for purposes of standing.’” Id. (quoting Tex. Cable & Telecomms. Ass’n v. Hudson, 265 F. App’x 210, 218 (5th Cir. 2008)); see also Duarte, 759 F.3d at 515 (finding injury where law made it “differentially more burdensome for” its object to exercise privileges enjoyed by others).
“Whether someone is in fact an object of a regulation is a flexible inquiry rooted in common sense.” Contender Farms, L.L.P., 779 F.3d at 265. Here, section 93-17-3(5) obviously
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targets married gay couples and limits their rights. And as discussed below, individual Plaintiffs have taken steps sufficient to show they desire adoption. Plaintiffs have therefore demonstrated an injury for purposes of the first prong of the standing analysis.3
b. Causation and Redressability The issues become more difficult and particularized with regard to the second and third prongs. Though distinct, these prongs share some overlap and are often considered in tandem. To show causation, a plaintiff must generally demonstrate that his or her injury is “fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added) (quoted in Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013)). This burden is “relatively modest at this stage of the litigation.” Bennett v. Spear, 520 U.S. 154, 170–71 (1997). “The causation element does not require a party to establish proximate causation, but only requires that the injury be ‘fairly traceable’ to the defendant.” Bennett, 520 U.S. at 168–69; see also League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir. 2011). And to establish redressability, a plaintiff “need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (quoted in K.P. v. LeBlanc, 627 F.3d 115, 123–24 (5th Cir. 2010) (“K.P. I”)). With these basics in mind, the Court turns to the various defendants.
3Plaintiffs Brittany Rowell and Jessica Harbuck were engaged when the Amended Complaint was filed and therefore ineligible to adopt for this separate reason. Under the circumstances, they would not have standing. That said, their counsel sent the Court an email stating that they had been married, but that message is not in the record. Their claims are dismissed without prejudice.
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i. The Governor Plaintiffs’ injuries flow from a statute that prohibits them from adopting; they are not fairly traceable to any act by the Governor of Mississippi. Indeed, the Governor has represented that he has no authority in this area and has not taken—and will not take—any action to block gay adoption. Defs.’ Mem. [16] at 13, 21. Plaintiffs cite no adoption-related statutes, rules, or regulations to the contrary. Instead, Plaintiffs assert that the Governor has made statements against gay adoption and has the authority to appoint department heads, including the DHS Executive Director. The Fifth Circuit addressed similar claims in Okpalobi v. Foster, where the plaintiffs sued the Governor of Louisiana to challenge a statute he had no authority to enforce. 244 F.3d at 426–27. There, a Louisiana statute created private causes of action against abortion providers in certain contexts. Abortion providers challenged the statute, naming as defendants the governor and the attorney general. Similar to the present case, the plaintiffs argued that the governor possessed general enforcement power and the power to appoint relevant state officers. 244 F.3d at 422. An en banc Fifth Circuit rejected these arguments, finding no standing because the plaintiffs failed to show “that any act of the defendants has caused, will cause, or could possibly cause any injury to them.” Id. at 426. More particularly, the court noted that the state officers lacked the “coercive power” necessary to either cause the injury or redress it. Id. at 426. Here, Plaintiffs’ contentions regarding the Governor of Mississippi are at best strained. The Governor has no “coercive power” over adoptions and has taken no acts that are fairly traceable to the stated injury. Even if ordered to do so, he could not affect the adoption process or make a chancery court grant an adoption. The claims against the Governor are dismissed with
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prejudice. ii. The Attorney General
The claims against the Attorney General are only slightly less attenuated. According to Plaintiffs, their injuries—the inability to adopt because of section 93-17-3(5)—are fairly traceable to the Attorney General because he issued an advisory opinion citing this section and is now defending its constitutionality in this case.
In February 2012, the Attorney General responded to a question from Mississippi Chancery Court Judge Kenneth M. Burns, who happens to be one of the defendants in this case. The question read: “When there are two people of the same gender who are not a couple, and who wish to jointly adopt a minor in Mississippi, would this adoption be allowable under Mississippi Code Section 93-17-3?” Honorable Kenneth M Burns, No. 2011-00515, 2012 WL 1071283, at *1 (Miss. A.G. Feb. 3, 2012) (emphasis added). The Attorney General responded, “Clearly, this statute prohibits adoption by same-sex couples. You state, however, that the two individuals here are not a ‘couple.’” Id. The opinion then moves to the heart of the inquiry, advising that “Section 93-17-3 prohibits a child from being adopted by two unmarried individuals.” Id.
Plaintiffs claim that this opinion, when coupled with the Attorney General’s defense of this case, is sufficient to establish standing against him for injuries flowing from section 93-173(5). The Court disagrees for five reasons. First, the judge did not seek an opinion on this precise issue, so the comments regarding section 93-17-3(5) were dicta. Second, “opinions issued by the Attorney General are merely advisory and are not binding on courts.” Godbold v. Water Valley, 962 So. 2d 133, 135 (Miss. Ct. App. 2007) (citing Shelter Mut. Ins. Co. v. Dale,
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914 So. 2d 698, 703 (Miss. 2005)). Third, the opinion occurred before Obergefell v. Hodges, 135 S. Ct. 2584 (2015). See Joint Heirs Fellowship Church v. Akin, No. 14-20630, 2015 WL 6535336, at *5 (5th Cir. Oct. 29, 2015) (rejecting argument that actions before precedent-setting judicial decisions create standing). Fourth, it is the Attorney General’s standard practice to avoid comment on federal law. See Kevin Upchurch, No. 2013-00504, 2013 WL 7020577, at *2 (Miss. A.G. Dec. 20, 2013) (“As you are aware, this office does not opine on such matters that are determinable only under federal law.”). Fifth, the context of Judge Burns’s question is not apparent, and technically speaking, judges are not expressly listed among the many state officials who may lawfully request an opinion. See Miss. Code Ann. § 7-5-25. Counsel for the Attorney General stated that it is, nevertheless, customary to answer questions from judges but not with respect to pending litigation. In any event, Plaintiffs have not demonstrated that dicta from a pre-Obergefell advisory opinion has caused harm or that it carries the requisite “coercive power.” Okpalobi, 244 F.3d at 426.
Representing the state in the present litigation does not change that reality. As noted in Okpalobi, the required causal connection comes from an officer’s “coercive power” regarding the disputed statute. 244 F.3d at 426 (holding plaintiff must show “power to enforce the complained-of statute”). The duty to defend the state in litigation is not the same thing as the power to enforce a statute. Cf. Harris v. Cantu, No. H-14-1312, 2014 WL 6682307, at *5 (S.D. Tex. Nov. 24, 2014) (holding that attorney general’s duty to defend does not trigger Ex parte Young exception) (citing Ex parte Young, 209 U.S. 123, 157 (1908) (rejecting argument that constitutionality of an act could be challenged by suit against attorney general simply because he “might represent the state in litigation involving the enforcement of its statutes”)). Moreover,
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the Attorney General is powerless to affect the adoption process or a decision by a Mississippi chancellor. Plaintiffs’ injuries are not fairly traceable to any act by the Attorney General, and he could not redress the actual injury Plaintiffs assert even if he rescinded Opinion No. 2011-00515. The claims against the Attorney General are dismissed with prejudice.
iii. DHS Executive Director The claims against the DHS Executive Director are different. As Defendants note, only the chancellors decide whether to apply section 93-17-3(5). Indeed, Defendants have argued correctly that DHS has no statutory authority to grant or deny an adoption. But “[t]his wrongly equates injury ‘fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation.” Bennett, 520 U.S. at 168–69. Here, DHS has submitted an affidavit verifying that it is charged with responsibilities affecting the adoption process. Smith Decl. I [55-1] ¶ 4. “DHS’s particular role, if any, in an adoption proceeding under Mississippi law depends upon the status of the individual whose adoption is at issue” and the type of adoption he or she pursues. Id. ¶ 6. There are two basic types of adoption in Mississippi—a private adoption and a foster-care adoption. Id. ¶¶ 7–14. Both are at issue in this case, making it necessary to consider Mississippi’s adoption procedures as they apply to the various Plaintiff couples. See Fontenot, 777 F.3d at 746 (standing must be established for each plaintiff).
a. Foster-Care Adoption A foster-care adoption—which is the route Plaintiffs Tina Sweeten-Lunsford and Kari Lunsford plan to take—involves a child who is currently in DHS’s foster-care custody. Smith Decl. I [55-1] ¶ 10. Again, the adoption must be approved by a chancery court. Id. But foster-
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care adoptions necessarily involve DHS. Id. Generally, this path to adoption includes the following steps: (1) DHS must approve the prospective adopting party’s application to become a foster-care resource home; (2) the party must then participate in resource-parent training as well as a home study; (3) the party visits with the foster child; (4) a proceeding is initiated with a court for placement; and (5) if placement occurs, a DHS social worker continues visits to the home for at least six months. Id. ¶¶ 11–12.
These procedures raise what may be the only factual dispute before the Court. In the Amended Complaint, Sweeten-Lunsford and Lunsford allege that they began this process but were told they could not participate because they are gay. Am. Compl. [23] ¶¶ 32–33. After the Obergefell decision, they contacted DHS to see if they
would now qualify as foster or adoptive parents. On information and belief, the MDHS employee spoke with [former DHS Executive Director] Berry. The employee then responded that the Mississippi Adoption Ban remained in place despite Obergefell and that it remained the law in Mississippi that couples of the same gender cannot adopt. In addition, the MDHS employee told Tina that the only way that MDHS would allow her and her wife to foster or adopt children is through legislative action overturning the Adoption Ban. Id. ¶ 34. Sweeten-Lunsford explained this episode in greater detail during the evidentiary hearing, testifying that after Obergefell, she contacted DHS’s Director of Training, who happened to be a friend, to see whether they could now adopt. The friend promised to find out and later stated that there would not be a change in DHS’s policy until the law was changed. In yet another communication, that same friend reported that she checked with a caseworker in SweetenLunsford’s area who had received a foster-care application from a gay couple but had been instructed to bury the application and wait. This final conversation was approximately two
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months before the November 2015 hearing in the present case. Defendants responded with two declarations from Mark Smith, Director of DHS’s
Division of Family and Children’s Services. See Smith Decl. I [55-1]; Smith Decl. II [55-2]. They did not offer a declaration from Berry, thus leaving the averment regarding his involvement unrebutted in the Amended Complaint. Am. Compl. ¶ 34.4
According to Smith, DHS could find no record of Plaintiffs’ efforts and would do nothing to prevent a gay adoption. More specifically, he stated that DHS would approve an otherwise meritorious foster-care application, Smith Decl. I [55-1] ¶¶ 17–18; see also Smith Decl. II [55-2] ¶ 10, and DHS policies would not “exclude [gay couples] from seeking to become a [foster-care] resource parent, or participating in the process for adopting a child.” Smith Decl. II ¶ 4.
The Court concludes that Plaintiffs Sweeten-Lunsford and Lunsford have made a sufficient showing. As noted, Defendants pursued this motion under Rule 12(b)(1). And because the record has been supplemented by the parties, the decision must be based on “the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Crane, 783 F.3d at 250–51. According to the Amended Complaint, DHS conveyed its continued policy to enforce section 93-17-3(5). Smith’s affidavit merely states that DHS has no record of the call. And while it would be difficult for DHS to prove a negative, Sweeten-Lunsford’s testimony was credible and is accepted.
Counsel for Defendants acknowledged during argument that if the Court credits Plaintiffs’ version of these facts, standing would exist for Plaintiffs desiring foster-care
4Regardless, Berry was sued in his official capacity, so the issue is DHS’s policies and actions.
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adoptions. The Court agrees. Even with Smith’s post-suit assurance that DHS will not block gay adoptions, “[a] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Already, LLC, 133 S. Ct. at 727 (citation omitted). Therefore, “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 190 (2000)) (internal quotation marks omitted). That showing has not been made given DHS’s refusal to process foster-care applications just two months before the hearing.
Having found that DHS has frustrated gay adoptions through the foster-care procedures, the Court finds Plaintiffs desiring foster-care adoption have standing. The foster-care application is the first step in the path to this type of adoption, DHS is solely responsible for administering it, and there is evidence that DHS has recently withheld approval based on section 93-17-3(5). The barrier need not be “the very last step in the chain of causation.” Bennett, 520 U.S. at 168. Nor must it resolve “every injury.” Larson, 456 U.S. at 243 n.15 (quoted in K.P. I, 627 F.3d at 123–24).5 Finally, if DHS has authority to erect a barrier to foster-care adoption based on section 93-17-3(5), it likewise has the ability to remove that barrier if so ordered. See, e.g., K.P. v. LeBlanc, 729 F.3d 427, 437 (5th Cir. 2013) (“K.P. II”) (finding standing as to state board because it had enforcement authority sufficient to redress at least some of plaintiff’s injuries).
5Though not the focus of the argument, DHS can be involved in subsequent steps in the foster-care adoption context, including placement. State of Miss., Dep’t of Human Servs., Div. of Family & Children’s Servs., Adoption Policy (“Adoption Policy”), at 7 (Apr. 29, 2015), available at http://www.mdhs.state.ms.us/media/310797/dfcs_policy_section_g.pdf.
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b. Private Adoptions Private adoptions involve children who are not in DHS’s foster-care custody. For example, Plaintiffs Donna Phillips, Janet Smith, Kathryn Garner, and Susan Hrostowski are already raising the biological child of one of the two partners. Section 93-17-11 states that after a private-adoption petition is filed, the chancellor may order an investigation and shall order a home study where the petitioner is not a stepparent. Where the petitioner is a relative or stepparent, the chancellor has discretion whether to order a home study. Id. Home studies are governed by section 93-17-3(6), which provides: No person may be placed in the home of or adopted by the prospective adopting parties before a court-ordered or voluntary home study is satisfactorily completed by a licensed adoption agency, a licensed, experienced social worker approved by the chancery court or by the Department of Human Services on the prospective adoptive parties if required by Section 93-17-11. (Emphasis added). Under these statutes, there are circumstances in which DHS could directly enforce the gay-adoption ban—if it so desired—with respect to a home study. But as DHS observes, the statutes also provide other avenues to adoption that do not directly involve home surveys by DHS, and in fact, DHS has never been asked to perform a home study involving a married gay couple. Smith Decl. I ¶ 8. Accepting those statements as true, other evidence must also be considered. To begin with, there can be no serious dispute that DHS—by statute—plays an expansive role in the adoption process. DHS’s own policy manual correctly states that it is “the agency designated, by MISS CODE ANN § 93-17-31 [sic] through 93-17-31 for establishing procedures for handling
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adoptions within Mississippi.” Adoption Policy at 4.6 Pursuant to that duty, DHS has published a written “Adoption Policy” manual, which is nearly 100 pages and fully explains its policies and the numerous roles DHS plays in the adoption process.
One of those policies prohibits discrimination and states that “[a]doption services and resources for children will be provided without discrimination and such services cannot be based on race, color, national origin or religious affiliation.” Id. But the policy does not preclude discrimination against same-sex married couples. And, as stated above, there is an allegation that DHS’s policy of enforcing section 93-17-3(5) remained unchanged after Obergefell. See supra.
With respect to the private-adoption plaintiffs, Plaintiffs Donna Phillips and Janet Smith contend that DHS has impeded their efforts to obtain a voluntary home study as provided in § 93-17-3(6). According to them,
every single social worker they have tried to engage to perform a home study has refused, citing the Mississippi Adoption Ban. See Miss. Code Ann. § 93-17-3(6). Several social work agencies told Donna and Jan that not only would a home study for a gay couple trying to adopt in Mississippi be useless, but they feared it would endanger their organizations’ standing with the State of Mississippi. Am. Compl. ¶ 18. It is important to note that DHS is tasked with licensing the adoption agencies. Miss. Code Ann. § 93-17-203(f). And DHS’s “general functions” include “[s]erving as a consultant to agencies providing adoption services.” Adoption Policy at 7. At this stage of the case, Plaintiffs need not prove that these assertions are true. Gilbert v. Donahoe, 751 F.3d 303, 312 (5th Cir. 2014). Plaintiffs bear the burden of establishing the
6Defendants provided the link to the website containing DHS’s policy manual in their brief. See Defs.’ Mem. [21] at 3 n.1.
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elements of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 560. At the pleading stage, the Court considers “the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Crane, 783 F.3d at 250–51. Unless disputed, the averments in the Amended Complaint must be presumed true. Lujan, 504 U.S. at 560. Or, as stated in Bennett, Plaintiffs have the burden—which is “relatively modest at this stage of the litigation—of alleging that their injury is ‘fairly traceable’ to the [defendant] and that it will ‘likely’ be redressed . . . .” 520 U.S. at 171.
So the question is whether these facts plausibly demonstrate that Plaintiffs’ injuries are “fairly traceable” to DHS’s actions. The contours of that standard can become murky on the fringes. It is clear, for example, that when a plaintiff cannot show that a defendant “has caused, will cause, or could possibly cause any injury to” her, the causation prong is not met. Okpalobi, 244 F.3d at 426. In Okpalobi, the plaintiffs sued the governor and attorney general of Louisiana, but those state officers simply had no involvement whatsoever in the enforcement of the statute, so no standing existed. Id.; see also K.P. II., 729 F.3d at 437–38 (finding no standing where defendant lacked authority to enforce statute and therefore could not redress harm).7
In K.P. I, the Fifth Circuit faced a statute that could—but did not necessarily—implicate the defendant. Louisiana’s Medical-Malpractice Act created a fund for participating doctors who had been sued for malpractice. But section 9:2800.12 of the Louisiana Revised Statues excluded abortion providers from the fund for lawsuits over abortion-related procedures. The fund was administered by the Patients’ Compensation Fund Oversight Board (the “Board”). 627
7Okpalobi’s observation that the plaintiffs failed to show the defendant “could possibly cause any injury to them” may be dicta given the facts of the case. If not, then the present dispute would meet that test for the reasons that follow.
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F.3d at 119. When the Board denied a claim related to an abortion, the provider and others sued,
bringing both a facial and as-applied challenge to section 9:2800.12. The Fifth Circuit found
standing at the Rule 12(b) stage:
We acknowledge that the Board is far from the sole participant in the application of the challenged statute. For example, litigants may bypass the Board and proceed directly in the courts. But at several points, Section 9:2800.12 impacts the Board’s actions sufficiently to confer standing on these Plaintiffs. “A plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15, 102 S. Ct. 1673, 72 L. Ed. 2d 33 (1982). This distinguishes the Board’s role from that of the Governor and Attorney General in Okpalobi. Those two officials were found not to have “any duty or ability to do anything” relating to enforcement of the statute. Okpalobi, 244 F.3d at 427. Here, the Board has definite responsibilities relating to the application of Section 9:2800.12.
627 F.3d at 123–24 (internal punctuation altered); see also Toll Bros., Inc. v. Township of
Readington, 555 F.3d 131, 142 (3d Cir. 2009) (holding that causation “need not be as close as
the proximate causation needed to succeed on the merits of a tort claim. Rather, an indirect
causal relationship will suffice, so long as there is ‘a fairly traceable connection between the
alleged injury in fact and the alleged conduct of the defendant’” (quoting Vt. Agency of Nat. Res.
v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)) (additional citations omitted); see also Bennett,
520 U.S. at 168 (holding that “fairly traceable” is not the same as “proximate cause” for standing
purposes).
Here, DHS has far more authority over adoptions than the officers in Okpalobi. In fact,
its policy-making authority, failure to include gay adoption in its anti-discrimination policy, and
alleged policy of enforcing section 93-17-3(5) is sufficient when considered with the alleged
coercive impact on those who perform voluntary home inspections.
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For example, in Ivy v. Williams, deaf individuals brought a putative class action against the Texas Education Agency (“TEA”), seeking injunctive relief that would require TEA to bring driver-education schools into compliance with the Americans with Disabilities Act (ADA). 781 F.3d 250 (5th Cir. 2015). The TEA argued that “no causal connection [existed] between the named plaintiffs’ injury and the TEA’s conduct because it is the driver education schools, not the TEA, that refuse to accommodate the named plaintiffs.” Id. at 253. The Fifth Circuit found the contention “meritless.” Id. “While driver education schools’ actions are one cause of the injury, it is equally clear that the named plaintiffs’ alleged injuries are also ‘fairly traceable’ to the TEA’s failure to inform private driver education schools of their ADA obligations and its failure to deny licenses to driver education schools that violate the ADA.” Id.
The fairly-traceable standard may include “injury produced by determinative or coercive effect upon the action of someone else.” Bennett, 520 U.S. at 169. And because DHS can both directly and through coercion impede a private adoption based on section 93-17-3(5), the Court concludes at this stage that an injunction would likely redress alleged injuries. Therefore, Plaintiffs Phillips, Smith, Garner, and Hrostowski have established standing.
c. Organizational Plaintiffs Finally, the remaining Plaintiffs—the Campaign for Southern Equality and Family Equality Council—are advocacy groups committed to supporting gay rights that allege they have associational standing to sue on behalf of their Mississippi members and constituents. “Associational standing is a three-part test: (1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief
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requested requires participation of individual members.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006). Neither side has briefed the associational-standing issue in great detail. See Defs.’ Mem. [56] at 11 n.6; Pls.’ Mem. [58] at 7 n.4. Given the Court’s finding that various Plaintiffs have standing, the Court concludes that the organizational Plaintiffs have standing, too, as their “mission[s are] aligned with [their] goals in this suit” and “[a]dditional members [or constituents] need not participate because the questions presented are legal, not factual.” Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 918 (S.D. Miss. 2014).
B. Eleventh Amendment Immunity “The Eleventh Amendment grants a state immunity from suit in federal court by . . . its own citizens.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002). Immunity also extends to state agencies that are considered “arms of the state.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989). Finally, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Will, 491 U.S. at 71. Therefore, the Eleventh Amendment also bars federal-court claims against individual state employees acting in their official capacities. Id. As stated, no standing exists as to the Governor or the Attorney General. There is, therefore, a school of thought that would counsel against conducting an Eleventh Amendment analysis as to them. See Okpalobi, 244 F.3d at 429 (Higginbotham, J., dissenting in part). But given the early stage of this litigation, the Court will briefly address the issue as an alternative basis for dismissing the official-capacity claims against the Governor and Attorney General. Ex parte Young acknowledged the “convenien[ce]” and “speed[]” that would be achieved in allowing suits against governors and attorneys general to test the constitutionality of statutes.
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209 U.S. at 157. But it nevertheless held that a plaintiff must show the defendants “have the requisite ‘connection’ to the statutory scheme to remove the Eleventh Amendment barrier to suits brought in federal court against the State.” Okpalobi, 244 F.3d at 411. “The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.” Ex Parte Young, 209 U.S. at 157.
What constitutes a connection to the enforcement of the statute is not entirely clear. Okpalobi required a “close connection” or “special relation.” 244 F.3d at 413. But that portion of the opinion failed to convince a majority of the court. Later, in K.P. I, the Fifth Circuit noted that “‘[e]nforcement’ typically involves compulsion or constraint.” 627 F.3d at 124–25 (citing Webster’s Third New International Dictionary 751 (1993)). And this “required ‘connection’ is not ‘merely the general duty to see that the laws of the state are implemented,’ but ‘the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.’” Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (emphasis added) (citing Okpalobi, 244 F.3d at 414–15 (quoting Ex parte Young, 209 U.S. at 157, 158)).
In this case, neither Mississippi’s Governor nor its Attorney General have the power of compulsion or constraint over the adoption decisions at issue. Moreover, they have not “demonstrated a willingness to exercise that duty.” Id. In fact, both the Governor and the Attorney General have unequivocally informed the Court in their memoranda that they are powerless to affect the adoption decision and will take no action to interfere with these Plaintiffs’ pursuit of an adoption.
While Plaintiffs observe that the Attorney General is representing the state in this
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litigation, again, that is not enough. See Harris, 2014 WL 6682307, at *5 (holding that “issuing opinions on the constitutionality of state law . . . and defending challenges to state laws” insufficient to trigger Ex parte Young). Under these circumstances, neither the Governor nor the Attorney General fall within the Ex parte Young exception to Eleventh Amendment immunity.
The DHS Executive Director is different. As noted above, DHS is statutorily empowered to set policies and participate directly in the adoption process. And the record before the Court indicates that it has interfered with same-sex adoptions after Obergefell. Thus, the power to “constrain[] exists, and there has been a demonstrated willingness to exercise it.” Morris, 739 F.3d at 746. So as to DHS’s Executive Director, Plaintiffs have standing and an Ex parte Young claim. II. Plaintiffs’ Motion for Preliminary Injunction
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain this relief, Plaintiffs must demonstrate four familiar requirements:
(1) [a] substantial likelihood of success on the merits; (2) [a] substantial threat that plaintiff[s] will suffer irreparable injury; (3) [that the] injury outweighs any harm the injunction might cause the defendant[s]; and (4) [that the] injunction is in the public interest. Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). A. Likelihood of Success on the Merits Obergefell held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that
23

does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).
In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).
While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).
Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not
24

fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”
While it may be hard to discern a precise test, the Court extended its holding to marriagerelated benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).
The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:
Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples. Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added). In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems
25

highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.8
Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.
2. Irreparable Injury “An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); see also Spiegel v. City of Hous., 636 F.2d 997 (5th Cir. 1981). Defendants contend that Plaintiffs’ injury is not irreparable, in part because only an adoption decree will remedy Plaintiffs’ damages. Defs.’ Mem. [21] at 19. But “[d]iscriminatory treatment at the hands of the government is an injury ‘long recognized as judicially cognizable.’” Tex. Cable & Telecomm. Ass’n v. Hudson, 265 F. App’x 210, 218 (5th Cir. 2008) (quoting Heckler v. Mathews, 465 U.S. 728, 738 (1984)). And while Plaintiffs must undergo the adoption process to fully remedy their injuries, the current law imposes an unconstitutional impediment that has caused stigmatic and more practical injuries. Plaintiffs addressed these concerns in their testimony and Amended Complaint, and
8During oral argument, the Court gave Defendants an opportunity to address the Supreme Court’s apparent desire to include marriage-related benefits in its Obergefell decision. Counsel seemed to acknowledge the point and redirected the Court to the procedural defenses. See Tr. at 157.
26

Defendants have not demonstrated that they could be undone with a monetary award. The Court finds irreparable harm.
3 Balance of Harms Plaintiffs have also met their burden regarding the balance of harms. DHS has taken the position, through its Director of the Division of Family and Children’s Services, that it will not impede an otherwise valid gay adoption, so this ruling merely memorializes what DHS has promised. 4. Public Interest “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012) (cited with approval in Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 470 n.9 (5th Cir. 2014)). III. Conclusion For the reasons stated, the Court grants the Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim [52] filed by Defendants the Tenth, Fourteenth, and Twentieth District Chancery Courts and Judges Dawn Beam, M. Ronald Doleac, Deborah J. Gambrell, Johnny L. Williams, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, John Grant, and John C. McLaurin, Jr. The following motions are granted in part: (1) the Motion for Preliminary Injunction [13] as to Defendant Davis; and (2) the Motions to Dismiss for Lack of Subject Matter Jurisdiction [15, 55] as to Plaintiffs Brittany Rowell and Jessica Harbuck and Defendants DHS, Governor Phil Bryant, and Attorney General Jim Hood.
27

The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5).
SO ORDERED AND ADJUDGED this the 31st day of March, 2016. s/ Daniel P. Jordan III UNITED STATES DISTRICT JUDGE
28

 </s> Case 3:15-cv-00578-DPJ-FKB Document 70 Filed 05/13/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY, ET AL.

PLAINTIFFS

VS.

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

THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, ET AL.

DEFENDANTS

ORDER GRANTING MOTION TO CONVERT PRELIMINARY INJUNCTION ORDER INTO PERMANENT INJUNCTION AND FINAL JUDGMENT
THIS MATTER is before the Court on the Motion to Convert Preliminary Injunction Order into Permanent Injunction and Final Judgment [68] filed by Defendant John Davis, in his official capacity as Executive Director of the Mississippi Department of Human Services, and the Joinder in Support of Executive Director Davis’s Motion to Convert Preliminary Injunction Order into Permanent Injunction and Final Judgment [69] filed by Plaintiffs. The Court finds that in light of these submissions by the remaining parties and the Court’s factual findings and conclusions of law established in its March 31, 2016 Order [67], there are no remaining factual or legal issues between the remaining parties to this lawsuit to be resolved, and the Motion to Convert Preliminary Injunction Order Into Permanent Injunction and Final Judgment [68] should be granted.
IT IS THEREFORE ORDERED that the Court hereby adopts all of its factual findings and legal conclusions contained in its March 31, 2016 Order [67] into this Order, and that, consistent with the Court’s March 31, 2016 Order [67], the Executive Director of the Mississippi Department of Human Services is hereby permanently enjoined from enforcing Mississippi Code Section 93-17-3(5).

Case 3:15-cv-00578-DPJ-FKB Document 70 Filed 05/13/16 Page 2 of 2 A separate final judgment consistent with this Order shall be issued this day. SO ORDERED AND ADJUDGED this the 13th day of May, 2016.
s/ Daniel P. Jordan III UNITED STATES DISTRICT JUDGE Submitted by: s/Tommy D. Goodwin TOMMY D. GOODWIN Counsel for Defendant John Davis, in his Official Capacity as Executive Director of the Mississippi Department of Human Services
2

 </s> Case 3:15-cv-00578-DPJ-FKB Document 71 Filed 05/13/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY, ET AL.

PLAINTIFFS

VS.

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

THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, ET AL.

DEFENDANTS

JUDGMENT

For the reasons explained in the Court’s Order entered in this cause this date, the

Executive Director of the Mississippi Department of Human Services is hereby permanently

enjoined from enforcing Mississippi Code Section 93-17-3(5) and this case is hereby dismissed.

SO ORDERED AND ADJUDGED this the 13th day of May, 2016.

s/ Daniel P. Jordan III UNITED STATES DISTRICT JUDGE

 </s> CLOSED,FKB,NO_CMC
U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:15−cv−00578−DPJ−FKB

Campaign for Southern Equality et al v. Mississippi Department Date Filed: 08/12/2015

of Human Services et al

Date Terminated: 05/13/2016

Assigned to: District Judge Daniel P. Jordan, III

Jury Demand: None

Referred to: Magistrate Judge F. Keith Ball

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

Campaign for Southern Equality

represented by Alexia D. Koritz − PHV PAUL, WEISS, RIFKIND, WHARTON &GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3782 Fax: 212/492−0782 Email: akoritz@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew J. Ehrlich − PHV PAUL, WEISS, RIFKIND, WHARTON &GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: aehrlich@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dianne Herman Ellis ELLIS LAW FIRM, PLLC 1161 Robinson Street Ocean Springs, MS 39564 228/215−0037 Fax: 228/284−1889 Email: diannernjd@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacob W. Howard MCDUFF &BYRD 767 N. Congress Jackson, MS 39202 601/969−0802 Fax: 602/969−0804 Email: jake@mcdufflaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacob H. Hupart − PHV PAUL, WEISS, RIFKIND, WHARTON &GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990

Plaintiff Family Equality Council

Email: jhupart@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV PAUL, WEISS, RIFKIND, WHARTON &GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: jkaye@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV BRAZIL &BURKE, PA 77 Central Avenue, Suite E Asheville, NC 28801 828/255−5400 Fax: 828−258−8972 Email: meghann@brazilburkelaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff MCDUFF &BYRD 767 North Congress Street Jackson, MS 39202 601/969−0802 Fax: 601/969−0804 Email: RBM@McDuffLaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV PAUL, WEISS, RIFKIND, WHARTON &GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: rkaplan@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd MCDUFF &BYRD 767 North Congress Street Jackson, MS 39202 601/969−0802 Fax: 601/969−0804 Email: scb@mcdufflaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY

Plaintiff Donna Phillips

PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff Janet Smith

ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kathryn Garner

Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address)

Plaintiff Susan Hrostowski

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY

Plaintiff
Jessica Harbuck TERMINATED: 03/31/2016

PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Brittany Rowell TERMINATED: 03/31/2016

ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Tinora Sweeten−Lunsford

Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd

Plaintiff Kari Lunsford
V. Defendant

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexia D. Koritz − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dianne Herman Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob W. Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meghann K. Burke − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mississippi Department of Human Services TERMINATED: 03/31/2016
Defendant Richard Berry in his official capacity as its Executive Director TERMINATED: 02/01/2016 Defendant Phil Bryant in his official capacity as Governor of the State of Mississippi TERMINATED: 03/31/2016 Defendant Jim Hood in his official capacity as Mississippi Attorney General TERMINATED: 03/31/2016
Defendant The Tenth District Chancery Court of Mississippi TERMINATED: 03/31/2016
Defendant The Fourteenth District Chancery Court of Mississippi TERMINATED: 03/31/2016 Defendant The Twentieth District Chancery Court of Mississippi TERMINATED: 03/31/2016 Defendant

represented by Tommy D. Goodwin − State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205−0220 601/359−3523 Fax: 601/359−2003 Email: tgood@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tommy D. Goodwin − State Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tommy D. Goodwin − State Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Justin L. Matheny MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205−0220 601−359−3825 Fax: 601−359−2003 Email: jmath@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE 550 High Street, Suite 1200 P. O. Box 220 (39205) Jackson, MS 39201 601/359−5654 Fax: 601/359−2003 Email: dmira@ago.state.ms.us ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by

Dawn Beam in her official capacity as a Chancellor in the 10th District Chancery Court TERMINATED: 03/31/2016
Defendant
M. Ronald Doleac in his official capacity as a Chancellor in the 10th District Chancery Court TERMINATED: 03/31/2016
Defendant
Deborah J. Gambrell in her official capacity as a Chancellor in the 10th District Chancery Court TERMINATED: 03/31/2016
Defendant
Johnny L. Williams in his official capacity as a Chancellor in the 10th District Chancery Court TERMINATED: 03/31/2016
Defendant
Kenneth M. Burns in his official capacity as a Chancellor in the 14th District Chancery Court TERMINATED: 03/31/2016
Defendant
Dorothy W. Colom in her official capacity as a Chancellor in the 14th District Chancery Court TERMINATED: 03/31/2016
Defendant
Jim Davidson in his official capacity as a Chancellor in the 14th District Chancery Court TERMINATED: 03/31/2016
Defendant
John Grant in his official capacity as a Chancellor in the 20th District Chancery Court TERMINATED: 03/31/2016
Defendant
John C. McLaurin Jr. in his official capacity as a Chancellor in the 20th District Chancery Court TERMINATED: 03/31/2016
Defendant
John Davis Executive Director of the Mississippi Department of Human Services

Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas T. Miracle − State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Tommy D. Goodwin − State Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/12/2015
08/12/2015 08/12/2015
08/12/2015 08/12/2015
08/12/2015 08/12/2015
08/12/2015 08/12/2015
08/12/2015 08/12/2015
08/12/2015 08/13/2015
08/13/2015

# Docket Text
1 COMPLAINT against Richard Berry, Phil Bryant, Jim Hood, Mississippi Department of Human Services ( Filing fee $ 400 receipt number 34643034774), filed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck. (Attachments: # 1 Civil Cover Sheet).(RRL) (Entered: 08/12/2015)
2 Summons Issued as to Richard Berry, Phil Bryant, Jim Hood, Mississippi Department of Human Services. (RRL) (Entered: 08/12/2015)
3 MOTION for Roberta Kaplan to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Certificate of good standing)(McDuff, Robert) (Entered: 08/12/2015)
Pro Hac Vice fee paid for Roberta Kaplan receipt number 0538−3006172 $ 100 (McDuff, Robert) (Entered: 08/12/2015)
4 MOTION for Joshua Kaye to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Joshua Kaye certificate of good standing)(McDuff, Robert) (Entered: 08/12/2015)
Pro Hac Vice fee paid for Joshua Kaye receipt number 0538−3006193 $ 100 (McDuff, Robert) (Entered: 08/12/2015)
5 MOTION for Alexia Koritz to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Alexia Koritz certificate of good standing)(McDuff, Robert) (Entered: 08/12/2015)
Pro Hac Vice fee paid for Alexia Koritz receipt number 0538−3006218 $ 100 (McDuff, Robert) (Entered: 08/12/2015)
6 MOTION for Jacob Hupart to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Jacob Hupart certificate of good standing)(McDuff, Robert) (Entered: 08/12/2015)
Pro Hac Vice fee paid for Jacob Hupart receipt number 0538−3006231 $ 100 (McDuff, Robert) (Entered: 08/12/2015)
7 MOTION for Andrew Ehrlich to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Andrew Ehrlich certificate of good standing)(McDuff, Robert) (Entered: 08/12/2015)
Pro Hac Vice fee paid for Andrew Ehrlich receipt number 0538−3006241 $ 100 (McDuff, Robert) (Entered: 08/12/2015)
8 SUMMONS Returned Executed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck Phil Bryant served on 8/12/2015, answer due 9/2/2015. (McDuff, Robert) (Entered: 08/13/2015)
9 SUMMONS Returned Executed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck Richard Berry served on 8/12/2015, answer due 9/2/2015. (McDuff, Robert) (Entered: 08/13/2015)

08/13/2015
08/13/2015
08/18/2015
08/18/2015 08/26/2015
08/28/2015 08/28/2015 09/02/2015 09/02/2015 09/02/2015 09/02/2015 09/02/2015 09/11/2015 09/11/2015 09/11/2015

10 SUMMONS Returned Executed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck Jim Hood served on 8/12/2015, answer due 9/2/2015. (McDuff, Robert) (Entered: 08/13/2015)
11 SUMMONS Returned Executed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck Mississippi Department of Human Services served on 8/12/2015, answer due 9/2/2015. (McDuff, Robert) (Entered: 08/13/2015)
12 MOTION for Meghann K. Burke to Appear Pro Hac Vice by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford (Attachments: # 1 Exhibit Meghann K. Burke Certificate of Good Standing)(McDuff, Robert) (Entered: 08/18/2015)
Pro Hac Vice fee paid for Meghann K. Burke receipt number 0538−3009871 $ 100 (McDuff, Robert) (Entered: 08/18/2015)
TEXT−ONLY ORDER granting 3 Motion to Appear Pro Hac Vice; granting 4 Motion to Appear Pro Hac Vice; granting 5 Motion to Appear Pro Hac Vice; granting 6 Motion to Appear Pro Hac Vice; granting 7 Motion to Appear Pro Hac Vice; granting 12 Motion to Appear Pro Hac Vice. That Roberta Kaplan, Joshua Kaye, Alexia Koritz, Jacob Hupart, Andrew Ehrlich and Meghann K. Burke be admitted pro hac vice in this case on behalf of the plaintiffs in association with local counsel and upon registration for electronic filing as required by the Court. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 8/26/2015 (JEJ) (Entered: 08/26/2015)
13 MOTION for Preliminary Injunction by Kathryn Garner, Susan Hrostowski, Donna Phillips, Janet Smith (Attachments: # 1 Declaration of Janet Smith, # 2 Declaration of Susan Hrostowski)(Kaplan − PHV, Roberta) (Entered: 08/28/2015)
14 MEMORANDUM in Support re 13 MOTION for Preliminary Injunction filed by Kathryn Garner, Susan Hrostowski, Donna Phillips, Janet Smith (Kaplan − PHV, Roberta) (Entered: 08/28/2015)
15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction by Jim Hood (Attachments: # 1 Exhibit Declaration of Mark Smith)(Matheny, Justin) (Entered: 09/02/2015)
16 MEMORANDUM in Support re 15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Jim Hood (Matheny, Justin) (Entered: 09/02/2015)
17 ANSWER to 1 Complaint, by Jim Hood.(Matheny, Justin) (Entered: 09/02/2015)
18 ANSWER to 1 Complaint, by Richard Berry, Phil Bryant, Mississippi Department of Human Services.(Goodwin, Tommy) (Entered: 09/02/2015)
19 Joinder in Document by Richard Berry, Phil Bryant, Mississippi Department of Human Services to 15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Jim Hood (Goodwin, Tommy) (Entered: 09/02/2015)
Set/Reset Motion Hearing set for November 6, 2015 at 1:00 PM in Courtroom 5A (Jackson) Jordan before District Judge Daniel P. Jordan III re 13 MOTION for Preliminary Injunction, and 15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction. (SP) (Entered: 09/11/2015)
TEXT−ONLY ORDER STAYING DISCOVERY pursuant to L.U.Civ.R. 16(b)(3)(B) pending a decision on the motion for jurisdiction. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 9/11/2015. (JEJ) (Entered: 09/11/2015)
20 RESPONSE in Opposition re 13 MOTION for Preliminary Injunction filed by Jim Hood (Matheny, Justin) (Entered: 09/11/2015)

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21 MEMORANDUM IN SUPPORT re 20 Response in Opposition to Motion for Preliminary Injunction filed by Jim Hood (Matheny, Justin) (Entered: 09/11/2015)
22 Joinder in Document by Richard Berry, Phil Bryant, Mississippi Department of Human Services to 20 Response in Opposition to Motion filed by Jim Hood (Goodwin, Tommy) (Entered: 09/11/2015)
23 AMENDED COMPLAINT for Declaratory and Injunctive Relief against Richard Berry, Phil Bryant, Jim Hood, Mississippi Department of Human Services, The Tenth District Chancery Court of Mississippi, The Fourteenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, Dawn Beam, M. Ronald Doleac, Deborah J. Gambrell, Johnny L. Williams, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, John Grant, John C. McLaurin Jr., filed by Family Equality Council, Donna Phillips, Kathryn Garner, Brittany Rowell, Susan Hrostowski, Tinora Sweeten−Lunsford, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Jessica Harbuck.(Kaplan − PHV, Roberta) (Entered: 09/11/2015)
24 Summons Issued as to Dawn Beam, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, M. Ronald Doleac, Deborah J. Gambrell, John Grant, John C. McLaurin Jr., The Fourteenth District Chancery Court of Mississippi, The Tenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, and Johnny L. Williams. (ND) (Entered: 09/14/2015)
25 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Dawn Beam served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
26 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Deborah J. Gambrell served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
27 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Dorothy W. Colom served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
28 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Jim Davidson served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
29 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck John C. McLaurin Jr. served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
30 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck John Grant served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
31 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Johnny L. Williams served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
32 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family

09/15/2015
09/15/2015
09/15/2015
09/15/2015
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Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck Kenneth M. Burns served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
33 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck M. Ronald Doleac served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
34 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck The Tenth District Chancery Court of Mississippi served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
35 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck The Fourteenth District Chancery Court of Mississippi served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
36 SUMMONS Returned Executed by Donna Phillips, Kathryn Garner, Susan Hrostowski, Campaign for Southern Equality, Kari Lunsford, Janet Smith, Family Equality Council, Brittany Rowell, Tinora Sweeten−Lunsford, Jessica Harbuck The Twentieth District Chancery Court of Mississippi served on 9/15/2015, answer due 10/6/2015. (McDuff, Robert) (Entered: 09/15/2015)
37 NOTICE of Appearance by Douglas T. Miracle on behalf of The Tenth District Chancery Court of Mississippi (Miracle, Douglas) (Entered: 09/16/2015)
38 NOTICE of Appearance by Douglas T. Miracle on behalf of The Fourteenth District Chancery Court of Mississippi (Miracle, Douglas) (Entered: 09/16/2015)
39 NOTICE of Appearance by Douglas T. Miracle on behalf of The Twentieth District Chancery Court of Mississippi (Miracle, Douglas) (Entered: 09/16/2015)
40 NOTICE of Appearance by Douglas T. Miracle on behalf of Dawn Beam (Miracle, Douglas) (Entered: 09/16/2015)
41 NOTICE of Appearance by Douglas T. Miracle on behalf of Kenneth M. Burns (Miracle, Douglas) (Entered: 09/16/2015)
42 NOTICE of Appearance by Douglas T. Miracle on behalf of Dorothy W. Colom (Miracle, Douglas) (Entered: 09/16/2015)
43 NOTICE of Appearance by Douglas T. Miracle on behalf of Jim Davidson (Miracle, Douglas) (Entered: 09/16/2015)
44 NOTICE of Appearance by Douglas T. Miracle on behalf of M. Ronald Doleac (Miracle, Douglas) (Entered: 09/16/2015)
45 NOTICE of Appearance by Douglas T. Miracle on behalf of Deborah J. Gambrell (Miracle, Douglas) (Entered: 09/16/2015)
46 NOTICE of Appearance by Douglas T. Miracle on behalf of John Grant (Miracle, Douglas) (Entered: 09/16/2015)
47 NOTICE of Appearance by Douglas T. Miracle on behalf of John C. McLaurin Jr. (Miracle, Douglas) (Entered: 09/16/2015)
48 NOTICE of Appearance by Douglas T. Miracle on behalf of Johnny L. Williams (Miracle, Douglas) (Entered: 09/16/2015)
ORAL JOINT MOTION Setting Briefing Schedule on Filed Motions and/or Any Motions Anticipated to be Filed by the Parties filed by All Plaintiffs and Defendants.(SP) (Entered: 09/23/2015)

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49 AGREED BRIEFING SCHEDULE ORDER granting ORAL JOINT MOTION Setting Briefing Schedule on Filed Motions and/or Any Motions Anticipated to be Filed by the Parties as set out in the Order. Signed by District Judge Daniel P. Jordan III on September 23, 2015. (SP) (Entered: 09/23/2015)
50 ANSWER to 23 Amended Complaint,, by Jim Hood.(Matheny, Justin) (Entered: 09/25/2015)
51 ANSWER to 23 Amended Complaint,, by Richard Berry, Phil Bryant, Mississippi Department of Human Services.(Goodwin − State Gov, Tommy) (Entered: 09/25/2015)
52 MOTION to Dismiss for Lack of Jurisdiction by Dawn Beam, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, M. Ronald Doleac, Deborah J. Gambrell, John Grant, John C. McLaurin Jr., The Fourteenth District Chancery Court of Mississippi, The Tenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, Johnny L. Williams (Miracle, Douglas) (Entered: 10/02/2015)
53 MEMORANDUM in Support re 52 MOTION to Dismiss for Lack of Jurisdiction and Failure to State and Claim filed by Dawn Beam, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, M. Ronald Doleac, Deborah J. Gambrell, John Grant, John C. McLaurin Jr., The Fourteenth District Chancery Court of Mississippi, The Tenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, Johnny L. Williams (Miracle, Douglas) (Entered: 10/02/2015)
54 RESPONSE in Opposition re 13 MOTION for Preliminary Injunction filed by Dawn Beam, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, M. Ronald Doleac, Deborah J. Gambrell, John Grant, John C. McLaurin Jr., The Fourteenth District Chancery Court of Mississippi, The Tenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, Johnny L. Williams (Miracle, Douglas) (Entered: 10/02/2015)
55 MOTION to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction by Jim Hood (Attachments: # 1 Exhibit 1 − Declaration of Mark Smith, # 2 Exhibit 2 − Second Declaration of Mark Smith, # 3 Exhibit 3−Pt. 1 − DHSs Division of Family and Childrens Services Policy Manual Section D, # 4 Exhibit 3−Pt. 2− DHSs Division of Family and Childrens Services Policy Manual Section D, # 5 Exhibit 3−Pt. 3 − DHSs Division of Family and Childrens Services Policy Manual Section D, # 6 Exhibit 3−Pt. 4 − DHSs Division of Family and Childrens Services Policy Manual Section D, # 7 Exhibit 4−Pt. 1 − DHSs Division of Family and Childrens Services Policy Manual Section F, # 8 Exhibit 4−Pt. 2 − DHSs Division of Family and Childrens Services Policy Manual Section F, # 9 Exhibit 5−Pt. 1 − DHSs Division of Family and Childrens Services Policy Manual Section G, # 10 Exhibit 5−Pt. 2 − DHSs Division of Family and Childrens Services Policy Manual Section G)(Matheny, Justin) (Entered: 10/02/2015)
56 MEMORANDUM in Support re 55 MOTION to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction filed by Jim Hood (Matheny, Justin) (Entered: 10/02/2015)
57 Joinder in Document by Richard Berry, Phil Bryant, Mississippi Department of Human Services to 55 MOTION to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction filed by Jim Hood (Goodwin − State Gov, Tommy) (Entered: 10/02/2015)
TEXT−ONLY ORDER The Agreed Briefing Schedule Order 49 stated that Plaintiffs were to file their Response by Monday, October 12, 2015. As that date is a federal holiday, the Response is due Tuesday, October 13, 2015. No further written order shall issue. Signed by District Judge Daniel P. Jordan III on 10/8/2015. (MH) (Entered: 10/08/2015)
58 MEMORANDUM in Opposition re 55 MOTION to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction, 52 MOTION to Dismiss for Lack of Jurisdiction filed by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford

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02/01/2016 03/31/2016 05/05/2016 05/09/2016
05/13/2016

(Kaplan − PHV, Roberta) (Entered: 10/13/2015)
59 REPLY to Response to Motion re 13 MOTION for Preliminary Injunction filed by Kathryn Garner, Susan Hrostowski, Donna Phillips, Janet Smith (Kaplan − PHV, Roberta) (Entered: 10/13/2015)
60 AFFIDAVIT in Support re 13 MOTION for Preliminary Injunction filed by Kathryn Garner, Susan Hrostowski, Donna Phillips, Janet Smith (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kaplan − PHV, Roberta) (Entered: 10/13/2015)
DOCKET ANNOTATION as to # 60 . L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (ND) (Entered: 10/14/2015)
61 REPLY to Response to Motion re 52 MOTION to Dismiss for Lack of Jurisdiction filed by Dawn Beam, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, M. Ronald Doleac, Deborah J. Gambrell, John Grant, John C. McLaurin Jr., The Fourteenth District Chancery Court of Mississippi, The Tenth District Chancery Court of Mississippi, The Twentieth District Chancery Court of Mississippi, Johnny L. Williams (Miracle, Douglas) (Entered: 10/19/2015)
62 REPLY to Response to Motion re 58 Memorandum in Opposition to Motion, filed by Jim Hood (Matheny, Justin) (Entered: 10/19/2015)
63 Joinder in Document by Richard Berry, Phil Bryant, Mississippi Department of Human Services to 62 Reply to Response to Motion filed by Jim Hood (Goodwin − State Gov, Tommy) (Entered: 10/19/2015)
64 NOTICE / Supplement by Kathryn Garner, Susan Hrostowski, Donna Phillips, Janet Smith re 13 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A Phillips Declaration)(Kaplan − PHV, Roberta) (Entered: 11/03/2015)
Minute Entry for proceedings held before District Judge Daniel P. Jordan III: Motion Hearing held on November 6, 2015 re 15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction; 55 MOTION to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction; 52 MOTION to Dismiss for Lack of Jurisdiction; 13 MOTION for Preliminary Injunction. Appearing: Roberta A. Kaplan, Robert B. McDuff, Joshua D. Kaye, Meghann K. Burke, and Sibyl C. Byrd, counsel for Plaintiffs; and Tommy D. Goodwin, Justin L. Matheny, and Douglas T. Miracle, counsel for Defendants. Court Reporter/Transcriber: Gina Morris (601) 608−4187. (SP) (Entered: 11/09/2015)
66 NOTICE of Substitution Pursuant to F.R.C.P. 25(d) by Richard Berry, Phil Bryant, Mississippi Department of Human Services (Goodwin − State Gov, Tommy) (Entered: 02/01/2016)
67 ORDER granting in part 13 Motion for Preliminary Injunction; granting in part 15 Motion to Dismiss; granting 52 Motion to Dismiss for Lack of Jurisdiction; granting in part 55 Motion to Dismiss as set out in the order. Signed by District Judge Daniel P. Jordan III on March 31, 2016. (SP) (Entered: 03/31/2016)
68 MOTION for Permanent Injunction and Final Judgment by John Davis (Goodwin − State Gov, Tommy) (Entered: 05/05/2016)
69 Joinder in Document by Campaign for Southern Equality, Family Equality Council, Kathryn Garner, Jessica Harbuck, Susan Hrostowski, Kari Lunsford, Donna Phillips, Brittany Rowell, Janet Smith, Tinora Sweeten−Lunsford to 68 MOTION for Permanent Injunction and Final Judgment filed by John Davis (Kaplan − PHV, Roberta) (Entered: 05/09/2016)
70 ORDER granting 68 Motion for Permanent Injunction. IT IS THEREFORE ORDERED that the Court hereby adopts all of its factual findings and legal conclusions contained in its March 31, 2016 Order 67 into this Order, and that, consistent with the Courts March 31, 2016 Order 67 , the Executive Director of the Mississippi Department of Human Services is hereby permanently enjoined from enforcing Mississippi Code Section 93−17−3(5). A separate final judgment

05/13/2016

consistent with this Order shall be issued this day. Signed by District Judge Daniel P. Jordan, III on 5/13/2016 (ND) (Entered: 05/13/2016)
71 JUDGMENT − For the reasons explained in the Court's Order entered in this cause this date, the Executive Director of the Mississippi Department of Human Services is hereby permanently enjoined from enforcing Mississippi Code Section 93−17−3(5) and this case is hereby dismissed. Signed by District Judge Daniel P. Jordan, III on 5/13/2016 (ND) (Entered: 05/13/2016)


[CONTENT] August 8, 2015 | Mississippi | the U.S District Court | the Southern District | Mississippi ||| the Mississippi Department of Human Services | Mississippi | the Mississippi DOJ | Mississippi | 42 | U.S | 1983 ||| Mississippi | the Fourteenth Amendment’s | the Supreme Court’s | Obergefell ||| Daniel P. Jordan |||  ||| Jordan | the Mississippi Department of Human Services | the Mississippi Department of Human Services | May 13, 2016 | 2016 | 1306202 | two months later |||  |||  [SUMMARY] On August 8, 2015, same-sex couples seeking to adopt in Mississippi and civil rights organizations filed this lawsuit in the U.S District Court for the Southern District of Mississippi. The plaintiffs sued, at various times, the Mississippi Department of Human Services, the Governor of Mississippi, the Mississippi DOJ, and the Mississippi judiciary under 42 U.S § 1983. Represented by private counsel, the plaintiffs asked for injunctive and declaratory relief, claiming that enforcement of the Mississippi statuary ban on same-sex adoptions violated the Fourteenth Amendment’s equal protection and due process clauses in light of the Supreme Court’s recent decision in Obergefell v. Hodges. 

The case was assigned to Judge Daniel P. Jordan.  In his words, the state presented a tepid defense of the ban's constitutionality, focusing on procedural rather than substantive questions. Judge Jordan ultimately dismissed the lawsuits against all defendants but the Mississippi Department of Human Services on procedural grounds, but granted full preliminary injunctive relief to plaintiffs against the Mississippi Department of Human Services on May 13, 2016, 2016 WL 1306202, and converted the preliminary injunction into a permanent injunction two months later.  (The state apparently agreed to the permanent injunction--submitting it for the court's approval.  We don't know whether that was because the state had conceded, or whether it was facilitating entry of a final order to allow immediate appeal.)