Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI Jackson Division

NYKOLAS ALFORD and STEPHEN

)

THOMAS; and ACLU OF MISSISSIPPI,

)

)

Plaintiffs,

)

)

v.

)

)

ruDY MOULDER, in her official capacity as )

MISSISSIPPI STATE REGRISTRAR OF

)

VITAL RECORDS,

)

)

Defendant.

COMPLAINT

INTRODUCTION

1. This is a pre-enforcement challenge to Mississippi House Bi111523 the Protecting

Freedom of Conscience from Government Discrimination Act ("HB 1523").

2. In Obergefell v. Hodges, the Supreme Court held that the Due Process and Equal

Protection Clauses of the Fourteenth Amendment "do[] not permit [a] State to bar same-sex

couples from marriage on the same terms as accorded to couples of the opposite sex." 135 S. Ct.

2584, 2607 (2015).

3. On its face, HB 1523 violates the Fourteenth Amendment by subjecting the lawful

marriages of same-sex couples to different terms and conditions than those accorded to different-

sex couples. By creating a separate and unequal set of laws applying only to the marriages of

same-sex couples, HB 1523 imposes a disadvantage, a separate status, and so a stigma upon all

married same-sex couples in Mississippi.

4. Unless this Court issues an injunction, HB 1523 will become effective on July 1,

2016.

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5. Plaintiffs seek declaratory relief that HB 1523 is unconstitutional on its face and as applied to Plaintiffs, and preliminary and permanent injunctions barring Defendant in her official capacity from enforcing the statute.
JURISDICTION AND VENUE 6. This action arises under the United States Constitution and 42 U.S.C. § 1983. 7. This Court has jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 8. Venue lies with this Court pursuant to 28 U.S.C. §§ 1391(b)(1)-(2), because the defendant resides in this District and a substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES 9. Plaintiffs Nykolas Allen and Stephen Thomas are residents of Lauderdale County, Mississippi. 10. Plaintiff ACLU of Mississippi is incorporated under the laws of Mississippi and has its principal place of business in Jackson, Mississippi. 11. The American Civil Liberties Union ("ACLU") is a nationwide, nonprofit, nonpartisan organization with over 500,000 members dedicated to defending the principles embodied in the Constitution and our nation's civil rights laws. Plaintiff, ACLU of Mississippi, is one of its state affiliates. The ACLU of Mississippi has approximately 1,000 members and continues to grow. 12. The ACLU and the ACLU of Mississippi advocate for the equal rights of all, including lesbian, gay, bisexual and transgender ("LGBT") people and the freedom to live

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 3 of 10
openly in a fair and just society. Through their litigation, advocacy, and lobbying efforts, they have ensured LGBT persons' freedom of expression and defended them against harassment. The ACLU and the ACLU of Mississippi plan to continue to defend the rights and liberties ofthe LGBT residents of Mississippi.
13. Defendant Judy Moulder is sued in her official capacity as Mississippi State Registrar ofVital Records. The Office of Vital Records is located at 222 Marketridge Drive in Ridgeland, Mississippi.
14. HB 1523 § 3(8)(a) provides that "any person employed or acting on behalf of the state government who has authority to authorize or license ... may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction" that marriage is or should be recognized as the union of one man and one woman. HB 1523 § 3(8)(a) further provides that "[a]ny person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal."
FACTUAL ALLEGATIONS 15. In Obergefoll, the Supreme Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment "do[] not permit [a] State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex." 135 S. Ct. at 2607. 16. As a result of Obergefell, Mississippi officials, in their official capacity, have been permanently enjoined from enforcing Section 263A ofthe Mississippi Constitution, which provides that "Marriage may take place and may be valid under the laws ofthis State only between a man and a woman."

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 4 of 10
17. Mississippi's exclusion of same-sex couples from marriage was based on strong religious and moral opposition to homosexuality and same-sex relationships.
18. In Obergefell the Supreme Court acknowledged that many people have sincere religious or moral objections to the marriages of same-sex couples. The Court nevertheless held that "when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur ofthe State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, samesex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right." Obergefell, 135 S. Ct. at 2602.
19. Passed as a direct response to Obergefell, HB 1523 reenacts some individuals' religious or moral opposition to the marriages of same-sex couples as the law and public policy of Mississippi. Indeed, HB 1523 incorporates virtually the same language as Mississippi's defunct constitutional marriage ban. Whereas Section 263A of the Mississippi Constitution provided that "Marriage may take place and may be valid under the laws ofthis State only between a man and a woman," HB 1523 authorizes certain types of discrimination against samesex couples based on the religious or moral conviction that "Marriage is or should be recognized as the union of one man and one woman."
20. HB 1523 thus targets precisely the same class of people that Obergefell protects. Although same-sex couples may now legally marry in Mississippi, HB 1523 identifies that subset of legal marriages and makes them unequal to all other types of legal marriages.
21. HB 1523 does not protect all religious or moral beliefs, or even all religious or moral beliefs related to marriage. Such beliefs already receive robust protections under

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 5 of 10
Mississippi's Religious Freedom Restoration Act ("RFRA"), which provides that any governmental burdens on an individual's "ability to act or the refusal to act in a manner that is substantially motivated by one's sincerely held religious belief' must be justified by a compelling governmental interest and be the least restrictive means of achieving that interest. MS Code.§ 11-61-1(5)(b).
22. In contrast, HB 1523 provides complete immunity for certain individuals and organizations to act or refuse to act based on their religious or moral beliefthat marriage is or should be recognized as the union of one man and one woman. HB 1523 creates an absolute right for those individuals and organizations to act or refuse to act based on these particular religious or moral beliefs regardless ofwhether the burden on religious beliefs would otherwise be justified under Mississippi's RFRA. When acting or refusing to act based on such beliefs, HB 1523 immunizes those individuals and organizations from all legal liability, including liability through common law claims for torts or breaches of contract. Indeed, if a same-sex couple seeks to bring such an action, HB 1523 makes the same-sex couple liable for damages to the individual or organization that has discriminated against them.
23. HB 1523 does not authorize discrimination against any marriage of a different-sex couple based on religious or moral objections. Many individuals and organizations have strong religious and moral objections to interfaith marriages. Many individuals and organizations have strong religious and moral objections to recognizing a second marriage following a civil divorce. Some individuals and organizations continue to have strong religious and moral objections to marriages between people of different races. But HB 1523 does not provide any authorization for those individuals and organizations to act or refuse to act based on those religious or moral beliefs.

----------------
Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 6 of 10
24. Plaintiffs Nykolas Alford and Stephen Thomas are a same-sex couple in a committed long-term relationship who are engaged to be married. They plan to marry within the next three years, after they complete their undergraduate education and obtain bachelor's degrees. They plan to marry within the next three years even if one of them is unable to finish his undergraduate education by then as a result of some unforeseen circumstance.
25. The ACLU of Mississippi currently has several members who are in committed relationships with a same-sex partner and plan to marry within the next three years, including one member who plans to marry his or her partner in 2017.
26. As a result ofHB 1523, Plaintiffs, ACLU of Mississippi members, and other same-sex couples seeking to marry after July 1, 2016, will be subject to a separate and unequal set of rules that do not apply to different-sex couples.
27. Different-sex couples who wish to marry in Mississippi may obtain a marriage license from any county clerk's office in the State, and in each ofthose clerk's offices, the employees have no legal right to recuse themselves from issuing marriage licenses to a differentsex couple based on religious beliefs or moral convictions.
28. In contrast, once HB 1523 goes into effect, Defendant will receive written notices from governmental employees who wish to recuse themselves from issuing marriage licenses to same-sex couples, and Defendant will keep a record of all recusals. In effect, Defendant has a duty under the statute to maintain a "no same-sex couples allowed" list of governmental officials who provide the same licenses to every other type of couple entering into a legal marriage but refuse to provide marriage licenses to Plaintiffs, ACLU of Mississippi members, and other samesex couples. Same-sex couples are thus relegated to a more limited set of governmental employees willing to issue them marriage licenses.

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 7 of 10
29. Defendants' maintenance of a "no same-sex couples allowed" list inflicts constitutional injury on Plaintiffs, ACLU of Mississippi members, and other same-sex couples even if the recusals do not impede or delay their ability to obtain marriage licenses. Creating a separate and unequal set of laws applying only to same-sex couples imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples.
30. The stigma is further enhanced by the fact that the Registrar's "no same-sex couples allowed" list is just one part of a comprehensive legal regime created by HB 1523 that will continue to impose separate and unequal treatment on Plaintiffs, ACLU of Mississippi members, and other same-sex couples over the course of their lives. Whenever Plaintiffs celebrate their anniversary, for-profit businesses will have an absolute right to refuse to provide them goods and services. If Plaintiffs seek to adopt a child out of foster care, adoption agencies have an absolute right to turn them away because they are a same-sex couple. If Plaintiffs seek counseling or fertility services, any hospital employee from the receptionist to the obstetrician may refuse to interact with them because they are a same-sex couple. If Plaintiffs have a child, the school guidance counselor could tell their child that his or her parents' marriage is an abomination or refuse to provide any counseling services to their child at all. Through these sweeping exclusions, HB 1325 subjects same-sex married couples in Mississippi to a lifetime of potentially humiliating denials of ordinary assistance and places a badge of inferiority upon their marriages each time they celebrate one of the ordinary incidents of family life.
31. As a result of this separate and unequal regime, HB 1523 places Plaintiffs, ACLU of Mississippi members, and other same-sex couples in an unstable position of being in a secondtier marriage. Even if no discrimination actually occurs, the second-tier status tells all persons

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with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.
CLAIM FOR RELIEF Fourteenth Amendment to the United States Constitution 32. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, States must allow same-sex couples access to civil marriage on the same terms and conditions as different-sex couples. 33. HB 1523 singles out the marriages of same-sex couples for a unique set of burdens that are not inflicted on marriages of different-sex couples. 34. On its face, HB 1523 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 35. HB 1523 is unconstitutional in all its applications. 36. IfHB 1523 goes into effect, Defendant will enforce the statute by collecting and recording notices of recusal from governmental employees who refuse to authorize or license lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman. 37. Enforcing HB 1523 by maintaining a list of governmental employees who will issue marriage licenses to different-sex couples but not same-sex couples would make marriage available to Plaintiffs on different terms and conditions than different-sex couples. The injury from the differential treatment is compounded by the stigma that HB 1523 imposes on Plaintiffs, ACLU of Mississippi members, and other same-sex couples. 38. HB 1523 is unconstitutional as applied to Plaintiffs.

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 9 of 10

39. Under 42 U.S.C. § 1983, Defendant, in her official capacity, is liable for declaratory and injunctive relief to prevent Defendant from violating Plaintiffs' Fourteenth Amendment rights under color of state law.
40. Declaring HB 1523 unconstitutional and enjoining Defendant from enforcing it would redress Plaintiffs' injury.
REQUEST FOR RELIEF For the foregoing reasons, the plaintiffs respectfully request that the Court grant the following relief: A. A declaration that HB 1523 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment; B. Preliminary and permanent injunctions against Defendant in her official capacity, prohibiting her from enforcing HB 1523; C. Plaintiffs' reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988; and D. Such other relief as the Court deems just and proper.

Dated: May 9, 2016

Respectfully submitted,

Joshua A. Block* Leslie Cooper* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street, Floor 17 New York, New York 10004 212-549-2627 jblock@aclu.org lcooper@aclu.org

Oliver E. Diaz, Jr. Esq. MSB# 6064 P.O. Box 946 Madison, MS 3913 769-230-3881

Case 3:16-cv-00350-DPJ-FKB Document 1 Filed 05/09/16 Page 10 of 10

Paloma Wu* AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI FOUNDATION 233 East Capitol Street Jackson, Mississippi 39201 601-354-3408 pwu@aclu-ms.org

Counselfor Plaintiffs
*Motion for admission pro hac vice to follow

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

NYKOLASALFORD;STEPHEN THOMAS; and ACLU OF MISSISSIPPI
v.

PLAINTIFFS CAUSE NO. 3:16-CV-350-CWR-LRA

JUDY MOULDER, in her official capacity as Mississippi State Registrar of Vital Records

DEFENDANT

ORDER

Plaintiffs Nykolas Alford, Stephen Thomas, and the ACLU of Mississippi seek a

preliminary injunction halting "House Billl523," a new state law set to go into effect on July 1,

2016. The State opposes the motion. Having considered the facts, arguments, and applicable law,

the motion will be denied without prejudice.

I. Factual and Procedural History

Alford and Thomas are a same-sex couple who are engaged to be married. They plan to

marry within the next three years. The ACLU of Mississippi is a non-profit membership

organization that, among other things, advocates for LGBT equality. At least one of its members

intends to marry his or her same-sex partner in 2017. Defendant Judy Moulder is the State

Registrar of Vital Records. She is sued in her official capacity.

The plaintiffs contend that HB 1523 violates the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. Their legal briefs, and arguably their choice of defendant, limit the scope of their motion for injunctive relief to§ 3(8)(a) of the bi11.1 In relevant part,

§ 3(8)(a) grants any government employee who issues marriage licenses a right to recuse himself

1 The plaintiffs' memoranda emphasize how HB 1523 may lead to discriminatory treatment of same-sex married couples. None ofthe plaintiffs (including the ACLU's to-be-married member) are married, though, so they are not subject to those possible hardships. The hurdle the plaintiffs face is the recusal system created by§ 3(8)(a).

or herself from serving same-sex couples if the recusing employee has a religious or moral objection to same-sex marriage? HB 1523 § 3(8)(a). The recusing employee must provide prior written notice to the Registrar of Vital Records, and be prepared to "take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal." Id. II. Legal Standard
To receive a preliminary injunction, the plaintiffs must show "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm ifthe injunction is not granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the defendant; and (4) that the injunction will not disserve the public interest." Opulent Life Church v. City ofHolly Springs, Miss., 697 F.3d 279,288 (5th Cir. 2012) (citation omitted). "A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four ... prerequisites." Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618,621 (5th Cir. 1985).
Because injunctions regulate future conduct, the plaintiff must allege and ultimately prove "a real and immediate- as opposed to a merely conjectural or hypothetical- threat of future injury." Church v. City ofHuntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). "Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant." United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (citation omitted). If''the harm will occur only in the indefinite future," the irreparable harm element is not satisfied. Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,
2 The bill protects a total ofthree "sincerely held religious beliefs or moral convictions": "(a) Marriage is or should be recognized as the union of one man and one woman; (h) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth." HB 1523 § 2.
2

91 (3d Cir. 1992). "[T]he moving party must make a clear showing of immediate irreparable harm." Id. (quotation marks and citation omitted). ill. Discussion
The plaintiffs' motion fails at step two of the preliminary injunction standard.3 They have not shown ''that the injury is imminent." Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986).
The Supreme Court has defined "imminent" as something that ''threatens to occur immediately." Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996) (quotation marks, citation, and brackets omitted); see Emerson, 270 F.3d at 262 (finding insufficient ''the possibility of some remote future injury. A presently existing actual threat must be shown."); Leal v. Stephens, No. 2:12-CV-136, 2015 WL 5514021, at *13 (N.D. Tex. Aug. 21, 2015) ("Courts have defined imminent to mean ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near. Black's Law Dictionary defmes imminent to mean near at hand; ... close rather than touching; impending; on the point of happening; threatening; menacing; perilous."); S.E.C. v. Daspin, 557 F. App'x 46,48 (2d Cir. 2014) (''the harm must be truly imminent, and not mere possible injury, or remote and speculative injury"); see also Google, Inc. v. Hood,--- F.3d ---,2016 WL 2909231, at *10 (5th Cir. May 18, 2016) (vacating a preliminary injunction that "covers a fuzzily defined range of enforcement actions that do not appear imminent").
Here, none of the plaintiffs are at imminent risk of injury because of§ 3(8)(a). Alford and Thomas's injury, if one exists, would arise when they apply for a marriage license. But they declare that they will apply for their license sometime within the next three years. That is not
3 Because the motion fails at step two, the remaining elements ofthe preliminary injunction standard need not be considered. See La Union Del Pueblo Entero v. Fed. EmergencyMgmt. Agency, 608 F.3d217, 225 (5th Cir. 2010).
3

imminent. The ACLU has the same problem. If a member ofthe ACLU intends to enter into a same-sex marriage in 2017, any injury is at least six months away.
The plaintiffs' supporting cases do not lead to a contrary conclusion. In Duarte v. City of Lewisville, Texas, the plaintiffs had "concrete plans" to subject themselves to the ordinance they challenged. 759 F.3d 514, 518 (5th Cir. 2014). There are no such plans here. Hassan v. City of New York, meanwhile, helps our plaintiffs on standing, but not on the immediacy of their injury. 804 F.3d 277,289 (3d Cir. 2015), as amended (Feb. 2, 2016). The plaintiffs in Hassan did not seek an injunction to prevent imminent injuries. Their injuries had already occurred. Id. at 285. IV. Conclusion
The motion is denied without prejudice. Within I 0 days, the parties shall contact the chambers of the Magistrate Judge to schedule a Case Management Conference.
SO ORDERED, this the 20th day of June, 2016. sf Carlton W. Reeves UNITED STATES DISTRICT JUDGE
4

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

NYKOLAS ALFORD; STEPHEN THOMAS; and ACLU OF MISSISSIPPI

PLAINTIFFS

V.

CAUSE NO. 3:16-CV-350-CWR-LRA

JUDY MOULDER, in her official capacity as Mississippi State Registrar of Vital Records

DEFENDANT

ORDER

Before the Court is the State’s motion to stay. Docket No. 24. The matter is fully briefed

and ready for adjudication.

I. Background

Nykolas Alford, Stephen Thomas, and the ACLU of Mississippi filed this case seeking to

enjoin House Bill 1523. The Court evaluated their motion for preliminary injunction and denied

it in a written Order. Docket No. 20. The plaintiffs’ subsequent motion for reconsideration was

also denied. Docket No. 23.

Shortly thereafter, in a related case called Barber v. Bryant, this Court found that HB

1523 was substantially likely to violate the First and Fourteenth Amendments to the United

States Constitution. Barber v. Bryant, --- F. Supp. 3d ---, 2016 WL 3562647 (S.D. Miss. June 30,

2016). The Barber plaintiffs also demonstrated that they were entitled to a preliminary injunction

preventing the law from going into effect. Id. The injunction issued on June 30, 2016. Id.

Two of the State defendants promptly appealed to the United States Court of Appeals for

the Fifth Circuit. That court decided that HB 1523 will remain enjoined pending appeal. See

Barber v. Bryant, --- F.3d ---, 2016 WL 4375014, at *1 (5th Cir. Aug. 12, 2016) (denying State’s

motion to let HB 1523 go into effect immediately). As a result, HB 1523 will have no effect for the foreseeable future.
The present motion followed.
II. Arguments The State contends that this matter should be paused pending resolution of the Barber
appeal. It observes that HB 1523 is enjoined and cannot harm the plaintiffs for the time being. The plaintiffs respond that “staying the case now before the merits are decided would
leave Plaintiffs unprotected for a critical period of time if the Fifth Circuit overturns the existing preliminary injunctions in Barber.” Docket No. 28, at 1-2. “In order to provide seamless protection for Plaintiffs’ constitutional rights, the Court should allow the case to proceed to the merits and issue a declaratory judgment in Plaintiffs’ favor so that, in the event that the existing preliminary injunctions are vacated, the Court can enter a narrower injunction in this case without delay.” Id. at 2. III. Law
“A court is within its discretion to grant a stay when a related case with substantially similar issues is pending before a court of appeals.” Greco v. Nat’l Football League, 116 F. Supp. 3d 744, 761 (N.D. Tex. 2015) (citation omitted). As the Supreme Court has explained,
the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citations omitted).
2

Whether to grant a stay pending resolution of another case is a fact-sensitive question. In re Beebe, 56 F.3d 1384, 1995 WL 337666, at *3 (5th Cir. 1995). If such a stay is granted, it must be moderate, of limited duration, and subject to reconsideration. Id. A stay should be dissolved when the balance of equities has tipped in the non-movant’s favor. Id.
As the Supreme Court held in Landis, and the Fifth Circuit has emphasized in subsequent cases, among the equities to be considered is whether a stay will harm anyone. 299 U.S. at 255. In a mass tort case, for example, the Fifth Circuit found a stay inappropriate where “[t]he realities of the hardship of a stay on the plaintiffs, many of whom allege that they are dying from asbestosis, is substantial and, in some instances, permanent. The grim reaper has called while judgment waits.” Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983). In the employment discrimination context, the same court found a stay improper where it “would have a very destructive effect on the valuable choice which . . . Congress had intended civil rights claimants to have.” Hines v. D’Artois, 531 F.2d 726, 736 (5th Cir. 1976). “If plaintiffs were not to be permitted forthwith to tell their story to the court, the tale might be stale indeed by the time it reached judicial ears.” Id. at 737. IV. Discussion
This is one of those rare instances where a case should be stayed pending resolution of another matter.
Normally, such a stay risks harm to the non-movant. If it is a personal injury case, the plaintiff has to wait longer to be made whole. He may even pass away before his day in court, as the Wedgeworth court noted. Witnesses’ memories fade; evidence is lost over time. The result is prejudice to the person seeking timely judicial relief.
This case is different. The plaintiffs have never been harmed by HB 1523. They brought this suit claiming an anticipated future injury, but the law was enjoined before any such injury
3

could come to pass. Specifically, nothing suggests that the individual plaintiffs or the ACLU’s members have even applied for or been denied a marriage license as a result of HB 1523. And, HB 1523 aside, should any of the plaintiffs (or anyone else for that matter) be denied a marriage license on account of their sexual orientation, they have an independent remedy by way of 42 U.S.C. § 1983 and Obergefell v. Hodges, 135 S. Ct. 2584 (2015).1
The plaintiffs argue that the State is undeserving of a stay because it has failed to prove harm. But Landis only required the movant to show “a clear case of hardship or inequity . . . if there is even a fair possibility that the stay for which he prays will work damage to some one else.” 299 U.S. at 255 (emphasis added). As discussed above, that condition is not satisfied here.
The plaintiffs then press that an open-ended stay would be improper because it would not terminate when the Fifth Circuit rules. The applicable law, however, instructs that a stay must be reconsidered when the equities have changed. If the facts and equities of this case change—even if they change between the Fifth Circuit’s ruling and the issuance of its mandate—the plaintiffs can file an appropriate motion. See Trinity Indus., Inc. v. 188 L.L.C., No. 3:02-CV-405-H, 2002 WL 1315743, at *3 (N.D. Tex. June 13, 2002) (staying case only until a ruling by the appellate court). There is no need for this case to proceed now. V. Conclusion
The State’s motion is granted. This case is stayed pending a decision in Barber v. Bryant. SO ORDERED, this the 17th day of October, 2016.
s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE
1 The plaintiffs hypothesize that when they proceed with wedding planning, they may be turned away by private vendors on account of their sexual orientation. Docket No. 28, at 7. Any private vendor who seeks refuge in the protections of the unconstitutional HB 1523 acts at his peril.
4

 
 Case 3:16-cv-00350-CWR-LRA Document 37 Filed 09/26/18 Page 1 of 3

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

NYKOLAS ALFORD and STEPHEN

)

THOMAS; and ACLU OF MISSISSIPPI,

)

)

Plaintiffs,

)

) Civil No. 3:16-CV-350-CWR-LRA

v.

)

)

JUDY MOULDER, in her official capacity as ) JOINT STIPULATION OF DISMISSAL

MISSISSIPPI STATE REGISTRAR OF

)

WITHOUT PREJUDICE

VITAL RECORDS,

)

)

Defendant.

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the Parties, by

and through their attorneys, respectfully and jointly submit this Stipulation of Dismissal of this

action without prejudice, each party to bear its own costs, fees and expenses. The parties request

that the Clerk of Court now close this case.

Dated: September 26, 2018

/s/ Joshua F. Tom Joshua F. Tom MSB No. 105392 AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI FOUNDATION 233 East Capitol Street Jackson, Mississippi 39201 T: 601-354-3408 jtom@aclu-ms.org
Joshua A. Block* Leslie Cooper* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street, Floor 17 New York, New York 10004 T: 212-549-2627 jblock@aclu.org

/s/ Douglas T. Miracle Douglas T. Miracle MSB No. 9648 MISSISSIPPI ATTORNEY GENERAL’S OFFICE STATE OF MISSISSIPPI CIVIL LITIGATION DIVISION P.O. Box 220 Jackson, Mississippi 39205-0220 T: 601-359-5654 dmira@ago.state.ms.us
Counsel for Defendant

1

Case 3:16-cv-00350-CWR-LRA Document 37 Filed 09/26/18 Page 2 of 3 lcooper@aclu.org *admitted pro hac vice Oliver E. Diaz, Jr., Esq. MSB #6064 P.O. Box 946 Madison, MS 39130 T: 769-280-3881 oliver@oliverdiazlaw.com Counsel for Plaintiffs
2

Case 3:16-cv-00350-CWR-LRA Document 37 Filed 09/26/18 Page 3 of 3 CERTIFICATE OF SERVICE
I, Joshua F. Tom, do hereby certify that on this date I electronically filed the foregoing document with the Clerk of Court using the ECF system, which transmitted a copy to all counsel of record.
THIS the 26th day of September, 2018. /s/ Joshua F. Tom Joshua F. Tom
3

 
 Case: 3:16-cv-350 As of: 11/29/2019 06:55 PM CST 1 of 5
STAY,CLOSED,LRA
U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:16−cv−00350−CWR−LRA

Alford et al v. Moulder Assigned to: District Judge Carlton W. Reeves Referred to: Magistrate Judge Linda R. Anderson Related Case: 3:16−cv−00417−CWR−LRA Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/09/2016 Date Terminated: 09/26/2018 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Nykolas Alford

represented by Oliver E. Diaz , Jr. OLIVER DIAZ LAW FIRM P. O. Box 946 Madison, MS 39031 769/230−3881 Email: oliver@oliverdiazlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Block − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−New York 125 Broad Street, 18th Floor New York, NY 10004 212/549−2593 Fax: 212/549−2650 Email: jblock@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua F. Tom ACLU OF MISSISSIPPI − Jackson P. O. Box 2242 233 East Capitol Street (39201) Jackson, MS 39225−2242 601/354−3408 Fax: 601/355−6465 Email: jtom@aclu−ms.org ATTORNEY TO BE NOTICED

Paloma Wu SOUTHERN POVERTY LAW CENTER − Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948−8882 Fax: 601/948−8885 Email: paloma.wu@splcenter.org TERMINATED: 12/19/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Stephen Thomas

represented by Oliver E. Diaz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Block − PHV (See above for address)

Case: 3:16-cv-350 As of: 11/29/2019 06:55 PM CST 2 of 5

PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua F. Tom (See above for address) ATTORNEY TO BE NOTICED

Paloma Wu (See above for address) TERMINATED: 12/19/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ACLU of Mississippi

represented by Leslie Cooper − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−New York 125 Broad Street, 17th Floor New York, NY 10004 212/549−2584 Fax: 212/549−2650 Email: lcooper@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Oliver E. Diaz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Block − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua F. Tom (See above for address) ATTORNEY TO BE NOTICED

Paloma Wu (See above for address) TERMINATED: 12/19/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Judy Moulder in her Official Capacity as Mississippi State Registrar of Vital Records

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 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 3:16-cv-350 As of: 11/29/2019 06:55 PM CST 3 of 5

05/09/2016
05/09/2016 05/09/2016 05/10/2016 05/10/2016 05/11/2016 05/11/2016
05/13/2016 05/13/2016 05/13/2016 05/13/2016 05/16/2016 05/16/2016 05/16/2016 05/24/2016 05/24/2016 05/24/2016 05/24/2016 05/25/2016

1 COMPLAINT against Judy Moulder (Filing fee $ 400 receipt number 34643039221), filed by Nykolas Alford, Stephen Thomas, ACLU of Mississippi. (Attachments: # 1 Civil Cover Sheet, # 2 Declaration of Stephen Thomas, # 3 Declaration of Nykolas Alford, # 4 Declaration of Jennifer Riley Collins).(TLC) (Entered: 05/09/2016)
2 MOTION for Preliminary Injunction by ACLU of Mississippi, Nykolas Alford, Stephen Thomas. (TLC) (Entered: 05/09/2016)
3 Corporate Disclosure Statement by ACLU of Mississippi. (TLC) (Entered: 05/09/2016)
4 Summons Issued as to Judy Moulder. (TLC) (Entered: 05/10/2016)
5 MEMORANDUM in Support for 2 Preliminary Injunction memorandum by ACLU of Mississippi (Diaz, Oliver) (Entered: 05/10/2016)
6 AFFIDAVIT of Service for Summons Judy Moulder, in her official capacity, served on Michael Lanford on 5/10/16, filed by ACLU of Mississippi, Nykolas Alford, Stephen Thomas. (Diaz, Oliver) (Entered: 05/11/2016)
DOCKET ANNOTATION as to # 6 Incorrect event chosen. This document should have been docketed as Summons Returned Executed. A return on summons should not be filed without the first page, as issued, preceding the return. Attorney is directed to refile. (TLC) (Entered: 05/11/2016)
7 SUMMONS Returned Executed by Stephen Thomas All Defendants. (Diaz, Oliver) (Entered: 05/13/2016)
Pro Hac Vice fee paid by (Joshua A. Block and Paloma Wu) $ 200, receipt number 34643039347. (TLC) (Entered: 05/13/2016)
8 ***ERROR − DISREGARD THIS ENTRY **** MOTION for Joshua A. Block to Appear Pro Hac Vice by ACLU of Mississippi (Diaz, Oliver) Modified on 5/16/2016 (TLC). (Entered: 05/13/2016)
9 ***ERROR − DISREGARD THIS ENTRY **** MOTION for Paloma Wu to Appear Pro Hac Vice by ACLU of Mississippi (Diaz, Oliver) Modified on 5/16/2016 (TLC). (Entered: 05/13/2016)
DOCKET ANNOTATION as to # 8 9 : : PDF attached to this entry is illegible/corrupted. Attorney is advised to correct the error by refiling the document. (TLC) (Entered: 05/16/2016)
10 MOTION for Joshua A. Block to Appear Pro Hac Vice by ACLU of Mississippi (Diaz, Oliver) (Entered: 05/16/2016)
11 MOTION for Paloma Wu to Appear Pro Hac Vice by ACLU of Mississippi (Diaz, Oliver) (Entered: 05/16/2016)
12 NOTICE of Appearance by Douglas T. Miracle − State Gov on behalf of Judy Moulder (Miracle − State Gov, Douglas) (Entered: 05/24/2016)
13 ANSWER to 1 Complaint, by Judy Moulder.(Miracle − State Gov, Douglas) (Entered: 05/24/2016)
14 Response in Opposition re 2 MOTION for Preliminary Injunction by ACLU of Mississippi, Nykolas Alford, Stephen Thomas. (TLC) filed by Judy Moulder (Miracle − State Gov, Douglas) (Entered: 05/24/2016)
15 MEMORANDUM in Opposition re 2 MOTION for Preliminary Injunction filed by Judy Moulder (Miracle − State Gov, Douglas) (Entered: 05/24/2016)
TEXT−ONLY ORDER granting 10 Motion to Appear Pro Hac Vice; granting 11 Motion to Appear Pro Hac Vice. That Joshua A. Block and Paloma Wu 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 5/25/2016. (JEJ) (Entered: 05/25/2016)

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05/27/2016 05/31/2016 06/06/2016 06/07/2016
06/07/2016 06/10/2016
06/20/2016 06/20/2016 06/20/2016 06/22/2016 07/08/2016 07/27/2016
08/08/2016 08/08/2016 08/25/2016 08/26/2016

16 NOTICE of Appearance by Joshua Block − PHV on behalf of All Plaintiffs (Block − PHV, Joshua) (Entered: 05/27/2016)
17 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Block − PHV, Joshua) (Entered: 05/31/2016)
18 MOTION for Leslie Cooper to Appear Pro Hac Vice by ACLU of Mississippi (Diaz, Oliver) (Entered: 06/06/2016)
TEXT−ONLY ORDER granting 18 Motion to Appear Pro Hac Vice. That Leslie Cooper 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 6/7/2016. (JEJ) (Entered: 06/07/2016)
Pro Hac Vice fee paid by (Leslie Cooper) $ 100, receipt number 34643039684. (TLC) (Entered: 06/07/2016)
19 ORDER REASSIGNING CASE. Case reassigned to District Judge Carlton W. Reeves and Magistrate Judge Linda R. Anderson for all further proceedings. District Judge Daniel P. Jordan, III, Magistrate Judge F. Keith Ball no longer assigned to case. Signed by Chief District Judge Louis Guirola, Jr on 6/10/16.(TLC) (Entered: 06/10/2016)
20 ORDER denying 2 Motion for Preliminary Injunction. Signed by District Judge Carlton W. Reeves on 6/20/2016. (AC) (Entered: 06/20/2016)
21 MOTION for Reconsideration re 20 Order on Motion for Preliminary Injunction by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Block − PHV, Joshua) (Entered: 06/20/2016)
22 MEMORANDUM in Support re 21 MOTION for Reconsideration re 20 Order on Motion for Preliminary Injunction filed by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Block − PHV, Joshua) (Entered: 06/20/2016)
23 ORDER denying 21 Motion for Reconsideration. Signed by District Judge Carlton W. Reeves on 6/22/2016. (EJ) (Entered: 06/22/2016)
NOTICE OF SETTING: Telephonic Status Conference set for 7/27/2016 10:00 AM before Magistrate Judge Linda R. Anderson. Oliver Diaz to initiate conference call. Telephone number: 601−608−4440. (WG) (Entered: 07/08/2016)
Minute Entry for proceedings held before Magistrate Judge Linda R. Anderson: Telephonic Status Conference held on 7/27/2016. Participants: Oliver Diaz, Jr., Joshua Block, Paloma Wu and Douglas Miracle. Court spoke with counsel. The parties were unable to agree on whether the case should be stayed pending the outcome of the Fifth Circuit appeal. The State will file a formal motion to stay the case on or before 8/8/2016 and plaintiffs will file response thereafter. (WG) (Entered: 07/27/2016)
24 MOTION to Stay Case by Judy Moulder (Attachments: # 1 Exhibit A− Civil Coversheet, # 2 Exhibit B − Memo dated July 11, 2016, # 3 Exhibit C − Memo dated July 13, 2016)(Miracle − State Gov, Douglas) (Entered: 08/08/2016)
25 MEMORANDUM in Support re 24 MOTION to Stay Case filed by Judy Moulder (Miracle − State Gov, Douglas) (Entered: 08/08/2016)
26 ***ERROR − DISREGARD THIS ENTRY **** MEMORANDUM in Opposition re 24 MOTION to Stay Case filed by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Wu − PHV, Paloma) Modified on 8/26/2016 (TLC). (Entered: 08/25/2016)
DOCKET ANNOTATION as to # 26 This document is not signed in compliance with the courts Administrative Procedures for Electronic Case Filing (Sec.3.D.) and Fed.R.Civ.P. Rule 11(a). Attorney is directed to refile the document with an appropriate signature. This document is also not accompanied by a certificate of service. A certificate of service must be attached to a document [Administrative Procedures for Electronic Case Filing, Sec. 4.A.1., Sec. 4.B, and Fed.R.Civ.P. Rule 5(d)(1)]. Attorney is directed to file a certificate as CERTIFICATE OF SERVICE and link it to the proper document. (TLC) (Entered: 08/26/2016)

Case: 3:16-cv-350 As of: 11/29/2019 06:55 PM CST 5 of 5

08/26/2016 08/26/2016 09/06/2016
10/17/2016 09/13/2017 09/15/2017 09/20/2017 12/18/2017 12/19/2017
08/22/2018 08/24/2018 08/24/2018 08/29/2018
09/21/2018 09/26/2018

27 CERTIFICATE OF SERVICE by ACLU of Mississippi, Nykolas Alford, Stephen Thomas re 26 Memorandum in Opposition to Motion to Stay Case (Wu − PHV, Paloma) (Entered: 08/26/2016)
28 MEMORANDUM in Opposition re 24 MOTION to Stay Case filed by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Wu − PHV, Paloma) (Entered: 08/26/2016)
29 RESPONSE in Support re 24 MOTION to Stay Case filed by Judy Moulder (Attachments: # 1 Exhibit A Order Denying Stay Pending Appeal, # 2 Exhibit B − Order Denying Stay Pending Appeal, # 3 Exhibit C − Agreed Order)(Miracle − State Gov, Douglas) (Entered: 09/06/2016)
30 ORDER granting 24 Motion to Stay Case. Signed by District Judge Carlton W. Reeves on 10/17/2016. (AC) (Entered: 10/17/2016)
Set/Reset Hearings: Telephonic Status Conference set for 9/20/2017 at 2:00 PM before District Judge Carlton W. Reeves. (AC) (Entered: 09/13/2017)
31 NOTICE of Appearance by Joshua F. Tom on behalf of All Plaintiffs (Tom, Joshua) (Entered: 09/15/2017)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Status Conference held on 9/20/2017. Participants: Joshua Block, Joshua F. Tom, Paloma Wu and Douglas T. Miracle. (JS) (Entered: 09/20/2017)
32 MOTION to Withdraw as Attorney Paloma Wu by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Wu, Paloma) (Entered: 12/18/2017)
TEXT−ONLY ORDER granting 32 Motion to Withdraw as Attorney. Attorney Paloma Wu terminated for plaintiffs. Signed by Magistrate Judge Linda R. Anderson on 12/19/2017. NO FURTHER WRITTEN ORDER WILL ISSUE. (WG) (Entered: 12/19/2017)
33 ORDER re Status of Claims. Signed by District Judge Carlton W. Reeves on 8/22/2018. (AC) (Entered: 08/22/2018)
34 Unopposed MOTION to Extend Time to Respond to Court Order Deadline by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Tom, Joshua) (Entered: 08/24/2018)
35 CERTIFICATE of Counsel re 34 Unopposed MOTION to Extend Time to Respond to Court Order Deadline by Joshua F. Tom on behalf of All Plaintiffs (Tom, Joshua) (Entered: 08/24/2018)
TEXT−ONLY ORDER granting 34 Unopposed Motion to Extend Deadline. The new deadline is September 21, 2018. Signed by District Judge Carlton W. Reeves on 8/29/2018. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THIS MOTION. (AC) (Entered: 08/29/2018)
36 Joint MOTION to Dismiss Without Prejudice by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Attachments: # 1 Exhibit Joint Stipulation of Dismissal Without Prejudice)(Tom, Joshua) (Entered: 09/21/2018)
37 STIPULATION of Dismissal Without Prejudice by ACLU of Mississippi, Nykolas Alford, Stephen Thomas (Tom, Joshua) (Entered: 09/26/2018)