IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER, et al., )

)

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official 

capacity as Attorney General for 

the State of Alabama and DON 

DAVIS in his official capacity as 

Probate Judge of Mobile County, 

Alabama,

)

)

)

)

)

)

)

Defendants.

ORDER

This matter is before the court on Plaintiffs’ emergency motion for 

preliminary injunction and/or temporary restraining order (Doc. 43), and the 

response thereto of Attorney General Strange (Doc. 44). A hearing on Plaintiffs’ 

motion was held on February 12, 2015. Appearing at the hearing were counsel for 

Plaintiffs, counsel for defendant Judge Don Davis and counsel for Plaintiffs in a 

similar case, SDAL Civil Action No. 15-067-CG-C. For the reasons explained below, 

the court finds that Plaintiffs’ motion for preliminary injunction should be granted.

The decision to grant or deny a preliminary injunction “is within the sound 

discretion of the district court...” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 

2002). This court may grant a preliminary injunction only if the plaintiff 

demonstrates each of the following prerequisites: (1) a substantial likelihood of 

success on the merits; (2) a substantial threat irreparable injury will occur absent 

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issuance of the injunction; (3) the threatened injury outweighs the potential damage 

the required injunction may cause the non-moving parties; and (4) the injunction 

would not be adverse to the public interest. Id., 287 F.3d at 1329; see also

McDonald’s Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). “In this 

Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to be 

granted unless the movant clearly established the “burden of persuasion” as to the 

four requisites.” McDonald’s Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. 

v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a 

preliminary injunction is issued only when “drastic relief” is necessary.)

This case is brought by four same-sex couples in committed relationships who 

reside in Mobile, Alabama and have been denied the right to a legal marriage under 

the laws of Alabama. This court previously issued a preliminary injunction in this 

case prohibiting the Alabama Attorney General, “his officers, agents, servants and 

employees, and others in active concert or participation with any of them who would 

seek to enforce the marriage laws of Alabama that prohibit same-sex marriage” 

from enforcing the Alabama laws which prohibit same-sex marriage. (Doc. 29). 

That preliminary injunction was initially stayed, but went into effect on Monday, 

February 9, 2015, after the Eleventh Circuit Court of Appeals and the Supreme 

Court of the United States denied Attorney General Strange’s request to extend the 

stay. (Doc. 40, Exh. 1; Doc. 43, p. 2). On February 9, 2015, the Plaintiffs went to the 

Mobile County Probate office seeking marriage licenses, but found the office closed.

(Doc.43-4, ¶ 5; Doc. 43-5, ¶ 5; Doc. 43-6, ¶ 5; Doc. 43-7, ¶ 5). Judge Don Davis of the 

Mobile County Probate Court issued a press release on February 9, 2015, stating 

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that the Marriage License Section of the Court’s Recording Division would remain 

closed pending further instructions from the United States District Court and the 

Chief Justice of the Alabama Supreme Court. (Doc. 43-3, and Hearing Exhibit 6). 

Judge Davis’s press release further stated that he had filed an action with the 

Alabama Supreme Court seeking guidance and clarification. (Doc. 43-3 and Hearing 

Exhibit 6). The Alabama Supreme Court has since dismissed that petition. (See 

Doc. 52 at p. 26 and Hearing Exhibit 10B). Judge Davis was not initially a 

defendant in this matter and was not named in the preliminary injunction that 

went into effect on February 9, 2015. However, the amended complaint filed on 

February 10, 2015, names Judge Davis in his official capacity as a defendant and 

seeks an injunction against Judge Davis prohibiting him from enforcing the 

Alabama laws, policies or practices that exclude Plaintiffs from marriage. (Doc. 47). 

The Plaintiffs report that they all feel demeaned and humiliated by 

Alabama’s refusal to treat them equally. (Doc. 43-4, ¶ 3; Doc. 43-5, ¶ 3; Doc. 43-6, ¶ 

3; Doc. 43-7, ¶ 3, Hearing Exhibits 1 - 4). Plaintiff James Strawser has serious 

health issues that will require surgery that will put his life at risk. (Doc. 43-4, ¶ 4, 

Hearing Exhibit 1). When Strawser had surgery in the past, he signed a form 

giving his partner, John Humphrey, legal power over Strawser’s medical decisions, 

but the hospital refused to honor that document because under Alabama law 

Humphrey was not a spouse or family member. (Doc. 43-4, ¶ 4, Hearing Exhibit 1). 

Plaintiff Meredith Miller wants to marry her partner, Anna Lisa Carmichael 

to have the legal protections and security that only marriage provides. (Doc. 43-5, ¶ 

3, Hearing Exhibit 2). Each day that they are excluded from marriage, they must 

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deal with uncertainty about whether they will be treated as family members if they 

experience a life crisis or emergency. (Doc. 43-5, ¶ 3, Hearing Exhibit 2). Miller and 

Carmichael hope to have children but are concerned that if they are not married 

their children will get the message that their family is not as worthy of dignity and 

respect as other families in Alabama and that their children will be denied 

important legal protections that come with marriage. (Doc. 43-5, ¶ 4, Hearing 

Exhibit 2).

Plaintiff Kristy Simmons wants to marry her partner, Marshay Safford, to 

have a legal family relationship and build stability for their children. (Doc. 43-6, ¶ 

3, Hearing Exhibit 3). Each day that they are not permitted to marry they 

experience uncertainty about whether they will be treated as family members in the 

event of an emergency. (Doc. 43-6, ¶ 3, Hearing Exhibit 3). The legal protections of 

marriage are especially important to Simmons because she has a rare disorder 

called Wegener’s Granulomatosis that causes her blood vessels to become inflamed 

and can damage her major organs. (Doc. 43-6, ¶ 4, Hearing Exhibit 3). 

Plaintiff Robert Povilat wants to marry his partner, Milton Persinger, in 

order to protect one another and have the legal protections and security that only 

marriage provides. (Doc. 43-7, ¶ 3, Hearing Exhibit 4). Mr. Povilat has survived two 

bouts of prostate cancer and fears that he could be diagnosed with cancer again. 

(Doc. 43-7, ¶ 4, Hearing Exhibit 4). Every day that they are not allowed to be 

married, they experience uncertainty about whether they will be treated as family 

members if they experience a crisis or an emergency. (Doc. 43-7, ¶ 3, Hearing 

Exhibit 4).

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Plaintiffs contend that Alabama’s laws prohibiting same-sex marriage1

violate their rights under the United States Constitution to Due Process and Equal 

 1 The Alabama Sanctity of Marriage Amendment to the Alabama Constitution 

provides the following:

(a) This amendment shall be known and may be cited as the Sanctity 

of Marriage Amendment.

(b) Marriage is inherently a unique relationship between a man and a 

woman. As a matter of public policy, this state has a special interest in 

encouraging, supporting, and protecting this unique relationship in 

order to promote, among other goals, the stability and welfare of 

society and its children. A marriage contracted between individuals of 

the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a 

woman, which, when the legal capacity and consent of both parties is 

present, establishes their relationship as husband and wife, and which 

is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to 

parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of 

parties of the same sex that occurred or was alleged to have occurred 

as a result of the law of any jurisdiction regardless of whether a 

marriage license was issued.

(f) The State of Alabama shall not recognize as valid any common law 

marriage of parties of the same sex.

(g) A union replicating marriage of or between persons of the same sex 

in the State of Alabama or in any other jurisdiction shall be considered 

and treated in all respects as having no legal force or effect in this 

state and shall not be recognized by this state as a marriage or other 

union replicating marriage.

ALA. CONST. ART. I, § 36.03 (2006). 

The Alabama Marriage Protection Act provides:

(a) This section shall be known and may be cited as the “Alabama Marriage 

Protection Act.”

(b) Marriage is inherently a unique relationship between a man and a 

woman. As a matter of public policy, this state has a special interest in 

encouraging, supporting, and protecting the unique relationship in 

order to promote, among other goals, the stability and welfare of 

society and its children. A marriage contracted between individuals of 

the same sex is invalid in this state.

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Protection. This court has determined in another case, Searcy v. Strange, SDAL

Civil Action No. 14-00208-CG-N, that Alabama’s marriage sanctity laws prohibiting 

and refusing to recognize same-sex marriage violate the Due Process Clause and 

Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution. In Searcy, this court found that those laws restrict the Plaintiffs’ 

fundamental marriage right and do not serve a compelling state interest. Although 

the Plaintiffs in this case seek to marry in Alabama, rather than have their 

marriage in another state recognized in Alabama, the Court, as it previously did in 

issuing the preliminary injunction against Attorney General Strange, adopts the 

reasoning expressed in the Searcy case and finds that Alabama’s laws violate the 

Plaintiffs’ rights for the same reasons. Alabama’s marriage sanctity laws violate

Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the 

Fourteenth Amendment to the United States Constitution by prohibiting same-sex 

marriage. Said laws are unconstitutional.

After considering the circumstances of this case and in light of the court’s 

conclusion that the laws in question are unconstitutional, the court finds that 

Plaintiffs have met the preliminary injunction factors. Plaintiffs’ inability to 

 

(c) Marriage is a sacred covenant, solemnized between a man and a 

woman, which, when the legal capacity and consent of both parties is 

present, establishes their relationship as husband and wife, and which 

is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to 

parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of 

parties of the same sex that occurred or was alleged to have occurred 

as a result of the law of any jurisdiction regardless of whether a 

marriage license was issued.

ALA. CODE § 30-1-19.

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exercise their fundamental right to marry has caused them irreparable harm that

outweighs any injury to defendant2. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 

2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights 

“unquestionably constitutes irreparable harm.”). Moreover, the Plaintiffs in this 

case have submitted declarations attesting to the specific reasons why their 

inability to become legally married in Alabama presents a substantial threat of 

irreparable injury. Additionally, “it is always in the public interest to protect 

constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). 

Therefore, the Plaintiffs have met their burden for issuance of a preliminary

injunction against the enforcement of state marriage laws prohibiting same-sex 

marriage.

Accordingly, the Court once again makes the following declaration:

It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) 

and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due 

Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Probate Judge Don Davis is hereby ENJOINED from refusing to issue 

marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex 

marriage. If Plaintiffs take all steps that are required in the normal course of 

business as a prerequisite to issuing a marriage license to opposite-sex couples, 

Judge Davis may not deny them a license on the ground that Plaintiffs constitute 

same-sex couples or because it is prohibited by the Sanctity of Marriage 

 2 Indeed, at the hearing on the motion, counsel for Judge Davis made no assertion of 

any injury to the Judge in his official capacity that might result from the issuance of 

an injunction.

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Amendment and the Alabama Marriage Protection Act or by any other Alabama

law or Order pertaining to same-sex marriage. This injunction binds Judge Don 

Davis and all his officers, agents, servants and employees, and others in active 

concert or participation with any of them, who would seek to enforce the marriage 

laws of Alabama which prohibit or fail to recognize same-sex marriage.

DONE and ORDERED this 12th day of February, 2015.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

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