4:14-cv-00107 #48

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES DOMER BRENNER, et al.,

Plaintiffs,

.
Case No. 4:14-cv-107-RH-CAS
v.

RICK SCOTT, et. al.,

Defendants.
___________________________________

SLOAN GRIMSLEY, et al.,
Plaintiffs, Case No. 4:14-cv-00138-RH-
CAS
v.

RICK SCOTT, et al.,

Defendants.
____________________________________

AMICUS FLORIDA FAMILY ACTION, INC.S MEMORANDUM OF LAW IN
OPPOSITION TO PLAINTIFFS MOTIONS FOR PRELIMINARY
INJUNCTION

Case 4:14-cv-00107-RH-CAS Document 48 Filed 05/12/14 Page 1 of 27
1

AMICUS CURIAE, Florida Family Action, Inc., (FFAI), by and through
counsel, respectfully submits the following Memorandum of Law in Opposition to
Plaintiffs Motions for Preliminary Injunction.
STATEMENT OF COMPLIANCE WITH F.R.App.P. 29(c)(5)
No partys counsel authored this Memorandum in whole or in part; no party or
partys counsel contributed money that was intended to fund preparing or submitting the
Memorandum; and no person other than Amicus Curiae FFAI, its members, or its counsel
contributed money that was intended to fund preparing or submitting the Memorandum.
FACTUAL BACKGROUND
Plaintiffs are asking this Court to commandeer Florida law and force the citizens
of Florida to accept an artificial construct of same-sex marriage so that Plaintiffs can
fulfill their desires to live in Florida and have their same-sex relationships recognized as
marriages as they are in other states and countries. Even as jurisdictions such as New
York, Iowa, the District of Columbia and Massachusetts have created a new construct of
same-sex marriage, Florida voters have re-affirmed that only the natural bond of one
man and one woman is defined and recognized as marriage in the state. Floridas citizens
drove the point home in 2008 when voters overwhelmingly voted to amend the Florida
Constitution to affirm that only the natural bond of one man and one woman is
recognized as marriage in the Fla. Const. Art. I, 27.
Plaintiffs have continued to reside in Florida or have moved to Florida as same-
sex couples, fully aware that the law of their chosen home state does not recognize their
relationship as marriages regardless of whether other jurisdictions have created an
artificial right of same-sex marriage. (Brenner Am. Cpt, 1-22; Grimsley Am. Cpt.,
2

11-20). Despite Floridas continuous adherence to the principle that only the natural
bond of one man and one woman is recognized as marriage in the state, Plaintiffs
Schlairet and Russ sought and were denied a marriage license from Defendant Bazzell.
(Brenner Am. Cpt, 23). The other Plaintiffs took advantage of other states and Canadas
decisions to adopt artificial same-sex marriage, but returned to live in Florida where
their same-sex relationships are not recognized as marriages (Brenner Am. Cpt, 5;
Grimsley Am. Cpt. 11-20, 34 ).
Plaintiffs claim that the states continuing affirmation that marriage is the union of
one man and one woman injures them. (Brenner Am. Cpt, 8-12, 24 Grimsley Am. Cpt.,
29-37). In particular, Plaintiffs claim that Defendants are depriving them of
constitutional rights because as same-sex couples they are not provided with the benefits
available only to the union of one man and one woman. (Brenner Am. Cpt., 34;
Grimsley Am. Cpt., 29-37).
LEGAL ARGUMENT
I. FLORIDAS MARRIAGE LAWS REFLECT THE STATES
AFFIRMATION THAT MARRIAGE THE UNION OF ONE MAN
AND ONE WOMAN IS THE ESSENTIAL AND FOUNDATIONAL
SOCIAL INSTITUTION.

At the heart of Plaintiffs challenges is the question of whether Florida has the
right to continue to be a state established on the basis of the idea of the family, as
consisting in and springing from the union for life of one man and one woman in the holy
estate of matrimony; the sure foundation of all that is stable and noble in our civilization;
the best guaranty of that reverent morality which is the source of all beneficent progress
in social and political improvement. Murphy v. Ramsey, 114 U.S. 15, 45 (1885). When
Florida voters added Article I, 27 to the Constitution, they did not, because they could
3

not, define marriage, which, as a comprehensive union, predates civil government.
1

[M]arriage is a natural bond that society or religion can only solemnize.
2
The United
States Supreme Court has recognized, since the early days of the Republic, that the
natural bond of marriage is the foundational social institution. Meister v. Moore, 96 U.S.
76, 78-79 (1877). Legislative enactments such as Fla. Const. Art. I, 27 and Florida Stat.
741.212(1),(2) and (3) regulate the mode of entering into the contract, but they do not
confer the right. Id.
Marriage is the foundation upon which the superstructure of society is built.
United States v. Cannon, 4 Utah 122, 7 P. 369, 382 affd, 116 U.S. 55 (1885).
There is far more to the marriage relation than the mere gratification of
passion, or the procreation of children. The wife, taking her place by her
husband's side, his equal, his counselor, his friend, makes of him a perfect
man. Together they share the sorrows of life; together they enjoy its
blessings. When each is true to the other, they present a union not made by
man, and as they pass along lifes pathway their very example is of infinite
benefit to mankind. Anything which tends to bring this relation into
disrepute is an injury to the world. Anything which lowers the popular
appreciation of the relation, and destroys the good that marriage does the
world by mere example, is an evil which the law should correct. Society,
with all its ramifications, being founded upon marriage, it is upon grounds
of public policy that it is regulated and protected.
Id. (emphasis added).
Far from being a human construct aimed at discriminating against homosexuals,
enactments such as Fla. Const. Art. I, 27 and Florida Stat. 741.212(1),(2)and (3) are
part of a 2,400 year philosophical tradition that has [] distinguished those uniquely
comprehensive unions consummated by coitus from all others.
3
In fact, legal and

1
Sherif Girgis et al., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 10
(2012).
2
Id. at 2.
3
Girgis et al., WHAT IS MARRIAGE? at 50 (emphasis in original).
4

philosophical traditions have, significantly, long termed [coitus] the generative act, as
without coitus, organic conception is impossible.
4

Important philosophical and legal traditions have long distinguished
friendships of all kinds from those special relationships that extend two
peoples union along the bodily dimension of their being and that are
uniquely apt for, and enriched by, reproduction and childrearing. The three
great philosophers of antiquity Socrates, Plato, and Aristotleas well as
Xenophanes and Stoics such as Musonius Rufus defended this viewin
some cases, amid highly homoerotic cultures.
5

[M]arriagethe demands of a natural institutionhelped to shape our religious and
philosophical traditions,
6
not the other way around. A major function of marriage laws
is to bind all third parties (schools, adoption agencies, summer camps, hospitals; friends,
relatives, and strangers) presumptively to treat a man as father of his wifes children,
husbands and wives as entitled to certain privileges and sexually off-limits, and so on.
This only the state can do with any consistency.
7
Marriage laws protect the common
good of health and safety and promote the common good of efficiency; however, private
efforts cannot adequately secure [these goods], and yet failure to secure them has very
public consequences.
8
Since the state can secure it without undue cost, then the state
may step inand should.
9

That is what Florida did when it enacted Florida Stat. 741.212(1),(2)and (3) and
then, in 2008, when, by a margin of 61.9 percent to 38.1 percent,
10
Florida voters

4
Id. at 26.
5
Id. at 49.
6
Id. at 11.
7
Id. at 41.
8
Id.
9
Id.
10
The official results of the November 2008 General Election show that
Amendment 2 received 4,890,883 yes votes (61.9 percent) and 3,008,026 no votes
(38.1 percent). Florida Secretary of State, Division of Elections, November 8, 2008
General Election Results, available at
5

amended the Constitution to affirm that: Inasmuch as marriage is the legal union of only
one man and one woman as husband and wife, no other legal union that is treated as
marriage or the substantial equivalent thereof shall be valid or recognized. Fla. Const.
Art. I, 27. Floridas affirmation of the natural bond of marriage exemplifies that
[m]arriage, while from its very nature a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society may be
said to be built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal. Reynolds v. United States,
98 U.S. 145, 165 (1878). Floridas statutes and Constitution also reflect the fact that
marriage is not a legal construct with totally malleable contoursit is not just a
contract. Instead, some sexual relationships are of a distinctive kind of bond that has its
own value and structure, which the state did not invent and has no power to redefine.
11

Consequently, by placing marriage as an inherent right in the state Constitution, Florida
has engaged in a proper exercise of its sovereign authority within our federal system, all
in the way that the Framers of the Constitution intended United States v. Windsor, 133
S. Ct. 2675, 2692 (2013). By contrast, jurisdictions such as New York, Massachusetts,
Iowa and the District of Columbia have exceeded their authority by attempting to
redefine marriage through creation of an artificial construct of same-sex marriage.
Plaintiffs are asking this Court to compel Florida to similarly exercise powers it does not
have and institute a similar artificial construct. Neither Windsor nor any other precedent

http://election.dos.state.fl.us/elections/resultsarchive/Index.asp?ElectionDate=11/4/2008
(last visited February 20, 2014).
11
Sherif Girgis et al., What is Marriage? at 80 (emphasis added).
6

permits such a usurpation of power, and Plaintiffs request for injunctive relief should be
denied.
II. PLAINTIFFS ARE NOT ENTITLED TO PRELIMINARY INJUNCTIONS.

Plaintiffs look to the Supreme Courts Windsor decision to justify their request
that this Court compel Florida to abandon marriage in favor of an artificial construct.
However, Windsor specifically cautioned against such an expansive reading of its
decision which affirmed the states right to regulate marriage. Windsor, 133 S. Ct. at
2692. The Windsor Court stated that the States power in defining the marital relation is
of central relevance in this case quite apart from principles of federalism, and Section 3
of DOMA was struck down because it departed from this history and tradition of
reliance on state law to regulate marriage by failing to grant federal benefits to same-sex
couples whom the state of New York determined could be married. Id. The Court
cautioned that [t]his opinion and its holding are confined to those lawful marriages. Id.
at 2696 (emphasis added).
There are no such lawful marriages at issue in this case since Florida, unlike
New York, has not attempted to redefine marriage as anything other than the union of
one man and one woman. Fla. Const. Art. I, 27; Florida Stat. 741.212(1),(2)and (3).
Consequently, by its explicit terms, Windsor does not provide Plaintiffs with grounds for
a constitutional challenge to Floridas constitutional and statutory affirmation of
marriage. Absent judicial precedent for constitutional invalidation, Plaintiffs ipso facto
cannot establish a likelihood of success on the merits or irreparable injury necessary to
obtain injunctive relief. Furthermore, the deleterious effects that an injunction would
have on the constitutional rights of the Florida electorate and, concomitantly, on the
7

public interest, mean that this Court should reject Plaintiffs request for a preliminary
injunction.
Citing to Windsor, Plaintiffs assert that the United States Constitution guarantees
them the right to have marriage redefined to include their same-sex relationships.
(Brenner Am. Cpt., 42-48; Grimsley Am. Cpt., 29-37). On that basis, they are asking
this Court to supersede the electorates proper exercise of its sovereign authority and
redefine marriage by judicial fiat. This Court should deny Plaintiffs request as
antithetical to the chief function of a preliminary injunction, i.e., preservation of the
status quo until the merits of the controversy can be fully and fairly adjudicated. Amer.
Radio Assn v. Mobile Steamship Assn, Inc., 483 F.2d 1, 4 (5th Cir. 1973). Plaintiffs are
asking this Court to reverse, not maintain, the status quo until their claims can be
adjudicated. Even when a party is properly seeking to preserve the status quo, a
preliminary injunction is regarded as an extraordinary and drastic remedy that is rarely
granted. Northeastern Fl. Chapter of the Assn of Gen. Contractors of Am. v. City of
Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990).
In this case, where the request is antithetical to the purposes of an injunction,
relief should be denied. That is particularly true when, as here, a party is trying to enjoin
a legislative enactment. Id. [P]reliminary injunctions of legislative enactmentsbecause
they interfere with the democratic process and lack the safeguards against abuse or error
that come with a full trial on the meritsmust be granted reluctantly and only upon a
clear showing that the injunction before trial is definitely demanded by the Constitution
and by the other strict legal and equitable principles that restrain courts. Id.
8

In the Eleventh Circuit, those restraining principles include a requirement that
plaintiffs establish: 1) a substantial likelihood of success on the merits; 2) a substantial
threat of irreparable injury if the injunction is not granted; 3) that the threatened injury to
the plaintiffs outweighs the harm an injunction may cause the defendant; and 4) that
granting the injunction will not disserve the public interest. Church v. City of Huntsville,
30 F.3d 1332, 1342 (11th Cir. 1994). All four prerequisites must be established or
injunctive relief must be denied. Id. Plaintiffs cannot satisfy any of the requirements and
so should not be granted the drastic and extraordinary remedy of a preliminary injunction
of duly enacted constitutional amendment and statutes.
A. Plaintiffs Cannot Establish A Likelihood Of Success On The
Merits.
Viewed in its proper context, Windsor does not provide Plaintiffs with a basis for
relief under any of the theories advanced in their memoranda. In fact, applying Windsors
central tenets to Plaintiffs challenges requires denial of any relief. As the Court held that
the New York legislature did in Windsor,
12
the electorate in Florida exercised its power to
regulate marriage when it amended the state Constitution to affirm that marriage is the
union of one man and one woman. Same-sex couples in Florida, unlike same-sex couples
in New York, do not have a justifiable expectation that their relationships will be
recognized as marriages. Therefore, Plaintiffs cannot claim that they are being denied a
dignity and status of immense import to which they are otherwise entitled or that they

12
Amicus does not agree that New York had the power to redefine marriage, but
is accepting, arguendo, pursuant to the Supreme Courts conclusion, that New Yorks
decision to permit marriage to include same-sex couples is an exercise of the same
constitutional power that was exercised by Florida voters when they affirmed that
marriage is the union of one man and one woman in the state. Amicus is thus arguing that
if Supreme Court precedent provides that New York has the right to define marriage to
include same-sex couples, then Florida has the equivalent right to define (i.e. affirm)
marriage as the natural bond of one man and one woman.
9

are somehow demean[ed] by being told that their otherwise valid marriages are
unworthy of . . . recognition, as the Court found was true of the couple in Windsor. 133
S. Ct. at 2692-93. Floridas constitutional and statutory provisions affirming that
marriage is the union of one man and one woman pose no threat to Plaintiffs
constitutional rights, be they due process, equal protection, right to travel, free
association, Establishment Clause or Supremacy Clause. Plaintiffs cannot establish a
likelihood of success on the merits on any of their constitutional claims and therefore are
not entitled to a preliminary injunction.
1. The Principles Of Federalism Advanced I n Windsor
Demonstrate That Plaintiffs Claims Cannot Succeed.

When they added Article I, 27 to the Florida Constitution, Florida voters
exercised one of the core principles of federalism, i.e., using the power reserved to
themselves to affirm that marriage is the union of one man and one woman. Far from
overturning the states right to regulate marriage, Windsor decisively upheld it when it
struck down one section of the federal Defense of Marriage Act (DOMA) because it
improperly interfered with New Yorks determination that marriage was to be redefined
to include same-sex couples. Windsor, 133 S. Ct. at 2692. The Windsor court found that
the States power in defining the marital relation [not, as Plaintiffs claim, that
marriages of same-sex couples share equal dignity with the union of one man and
one woman] is of central relevance in this case. Id. (emphasis added). The Windsor
courts statements regarding deprivation of a dignity and status of immense import and
diminution of same-sex couples relationships, upon which Plaintiffs base their
challenges, must be analyzed in context as reflecting the Supreme Courts continuing
concern that federal legislation not intrude into the province of the states, and
10

particularly, individual citizens. Id. See also, Bond v. United States 131 S.Ct. 2355, 2364
(2011); Schuette v. BAMN, 2014 WL 1577512, *15 (April 22, 2014). Windsor did not
announce a new federal standard to be imposed upon the states, i.e., a redefinition of
marriage to include same-sex couples, but re-affirmed that states have the right to
regulate marriage and states citizens have a justifiable expectation that a marriage valid
under their states laws will not be deemed invalid under federal law. Windsor, 133 S. Ct.
at 2692-93.
Plaintiffs cannot succeed on the merits of their claims without contravening not
only Windsor, but decades of Supreme Court precedent upholding the separation between
the federal and state governments established by the Founders. See Windsor, 133 S.Ct. at
2692. Floridas enactment of Amendment 2 in 2008 and earlier enactment of Section
741.212 of the Florida Statutes was an exercise of the initiative of those who [sought] a
voice in shaping the destiny of their own times. Id. (citing Bond, 131 S.Ct. at 2359). As
was true with New Yorks regulation of marriage in Windsor,
13
Floridas adoption of
Amendment 2 and Section 741.212 were without doubt a proper exercise of its
sovereign authority within our federal system, all in the way that the Framers of the
Constitution intended. Id. The Windsor court found that Section 3 of DOMA was
unconstitutional because Congress lacked the legitimate authority to interfere with Edith
Windsors state-granted right to have her same-sex relationship recognized as a
marriage. Id. Applying that rationale to this case requires a reaffirmation that neither

13
Again, Amicus is not acknowledging that New York had the right to create the
artificial construct of same-sex marriage, but is assuming, arguendo, that New Yorks
actions were an exercise of its right to regulate marriage, as the Supreme Court concluded
in Windsor.
11

Congress nor the federal courts have the authority to interfere with Florida citizens rights
to affirm that marriage is the union of one man and one woman.
Windsor stated that by history and tradition the definition and regulation of
marriage . . . has been treated as being within the authority and realm of the separate
States. Id. at 2689-90. State laws defining and regulating marriage, of course, must
respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87
S.Ct. 1817, 18 L.Ed.2d 1010 (1967); but, subject to those guarantees, regulation of
domestic relations is an area that has long been regarded as a virtually exclusive
province of the States. Id. at 2691 (citing Sosna v. Iowa, 419 U.S. 393, 404 (1975)). In
fact, the states, at the time of the adoption of the Constitution, possessed full power over
the subject of marriage and divorce ... [and] the Constitution delegated no authority to the
Government of the United States on the subject of marriage and divorce. Id. (citing
Haddock v. Haddock, 201 U.S. 562, 575 (1906)). Consequently, the Federal
Government, through our history, has deferred to state-law policy decisions with respect
to domestic relations, including decisions concerning citizens marital status Id. at
2691. Contrary to this longstanding precedent, Section 3 of DOMA rejected the long-
established precept that the incidents, benefits, and obligations of marriage are uniform
for all married couples within each State, though they may vary, subject to constitutional
guarantees, from one State to the next. Id. at 2692. Instead of deferring to the states
determination regarding the definition of marriage, DOMA imposed restrictions and
12

disabilities upon the state-conferred right and, therefore, violated the Fifth Amendment.
Id. at 2696.
14

Windsors reliance upon principles of federalism to strike down Section 3 of
DOMA reflects the Courts consistent commitment to preserving what James Madison
called a double security protecting the rights of the people, i.e., federalism and
separation of powers. THE FEDERALIST NO. 51, at 320 (James Madison) (Clinton Rossiter
ed., 1961)). The federal system rests on what might at first seem a counterintuitive
insight, that freedom is enhanced by the creation of two governments, not one. Bond,
131 S.Ct. at 2364 (citing Alden v. Maine, 527 U.S. 706, 758 (1999)). The Framers
concluded that allocation of powers between the National Government and the States
enhances freedom, first by protecting the integrity of the governments themselves, and
second by protecting the people, from whom all governmental powers are derived. Id.
2. The Supreme Courts Validation Of Michigans Affirmative
Action Prohibition Based Upon Federalism Further
Demonstrates That Plaintiffs Claims Cannot Succeed.
Even when, as is true in this case, the subject of state legislative enactments is
socially and politically provocative, the Supreme Court has protected the foundational
concepts of federalism against efforts to judicially repeal duly enacted state constitutional
amendments. Schuette v. BAMN, 2014 WL 1577512 (April 22, 2014). Schuette, like
Windsor, proves that Plaintiffs cannot succeed in obtaining judicial repeal of Floridas
duly enacted constitutional amendment and statutes affirming that marriage is the union

14
In this way, DOMA was comparable to the anti-miscegenation laws struck down
in Loving, which also imposed restrictions and disabilities upon otherwise lawful
marriages. Loving, 388 U.S. at 12. Since the constitutional amendment and statutes at
issue here simply restate what are lawful marriages in Florida, they do not resemble
either the anti-miscegenation law in Loving or Section 3 of DOMA in Windsor.
Consequently, Plaintiffs reliance upon Loving to shore up a failed discrimination claim
is unavailing.
13

of one man and one woman.
15
In Schuette, the Court upheld Michigans constitutional
amendment prohibiting racial preferences in public education, hiring and contracting. Id.
at *7. As Plaintiffs do in this case, in Schuette the plaintiffs sought invalidation of the
constitutional amendment on the grounds that it violated Equal Protection. Id. Citing to
the same language in Bond that it used in Windsor, the Supreme Court found no Equal
Protection violation. Id.
This case addresses the question of whether voters may determine whether
a policy of race-based preferences should be continued. By approving
Proposal 2 and thereby adding 26 to their State Constitution, the
Michigan voters exercised their privilege to enact laws as a basic exercise
of their democratic power. In the federal system States respond, through
the enactment of positive law, to the initiative of those who seek a voice in
shaping the destiny of their own times. Bond, 564 U.S., at (slip op.,
at 9). Michigan voters used the initiative system to bypass public officials
who were deemed not responsive to the concerns of a majority of the
voters with respect to a policy of granting race-based preferences that
raises difficult and delicate issues.
Id. at *15.
Freedom embraces the right, indeed the duty, to engage in a rational, civic
discourse in order to determine how best to form a consensus to shape the
destiny of the Nation and its people. These First Amendment dynamics
would be disserved if this Court were to say that the question here at issue
is beyond the capacity of the voters to debate and then to determine.
Id. at *16.
This case is not about how the debate about racial preferences should be
resolved. It is about who may resolve it. There is no authority in the
Constitution of the United States or in this Court's precedents for the
Judiciary to set aside Michigan laws that commit this policy determination
to the voters.
Id. at *17. Likewise, in this case, as in Windsor, the question is not about how the debate
about defining marriage is to be resolved, but who may resolve it. The Supreme Court

15
Notably the majority opinions in Schuette, Windsor and Bond were all written by
Justice Kennedy.
14

answered that question in Windsor regulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of the States.133 S.Ct. at 2691.
Because Section 3 of DOMA interfered with that exclusive province of the State of New
York, it was invalid. Id. at 2696. Here, Amendment 2 is the embodiment of state
regulation of domestic relations, the polar opposite of Section 3 of DOMA. Under
Windsor, the voters exercise of their reserved power must be preserved and protected,
not overturned.
As did the Michigan voters in Schuette and New York legislators in Windsor,
Floridas voters here exercised their privilege to enact laws as a basic exercise of their
democratic power. 2014 WL 1577512 at *15. Neither the Constitution nor Supreme
Court precedent authorizes judicial interference and invalidation of the voters
determination. In fact, Schuette and Windsor specifically require that Amendment 2 and
the associated statutes be upheld against Plaintiffs request for judicial repeal.
B. Plaintiffs Cannot Establish Irreparable Injury.

Equally fatal to Plaintiffs request for injunctive relief is the complete absence of
any injury, let alone the irreparable injury necessary for the drastic remedy of a
preliminary injunction. City of Jacksonville, 896 F.2d at 1285. A showing of irreparable
harm is the sine qua non of injunctive relief. Id. The injury must be actual and
imminent, not remote or speculative. Id. Even an allegation of an ongoing constitutional
violation will not establish irreparable injury without evidence of an actual injury such as
chilled speech or an invasion of privacy. Id. at 1286. There is no such evidence in this
case, nor any evidence of injury whatsoever, as Plaintiffs cannot assert any harm arising
15

from Floridas affirmation of marriage as the union of one man and one woman, of which
Plaintiffs were aware when they chose to reside in Florida as same-sex couples.
1. There I s No I rreparable I njury Because Plaintiffs Had No
J ustifiable Expectation Of Marriage Recognition.

As was true with the substantial likelihood factor, Windsor actually demonstrates
why Plaintiffs cannot prove irreparable injury to support injunctive relief. In fact,
Windsor establishes that Plaintiffs have suffered no injury whatsoever. Windsor, 133 S.
Ct. at 2692-93. The same-sex couple in Windsor was married in Canada and resided in
New York which changed its law to recognize same-sex marriages from other
jurisdictions and then create a new construct of same-sex marriage under state law. Id.
at 2689. Therefore, at the time of her partners death, Ms. Windsor was part of what New
York regarded as a legally recognized marriage and could be said to have a reasonable
expectation that she would be treated as a surviving spouse. Id. at 2693. When Section 3
of DOMA was used to deny her the status of surviving spouse under federal law, she was
found to have suffered an injury, i.e., denial of government benefits, which the Court
found actionable. Id. The Court went on to find that DOMAs differential treatment of a
same-sex partner legally married under the laws of a state violated the Fifth
Amendment. Id. at 2696. Importantly, the Court also explicitly limited the holding to the
factual situation at bar, i.e., marriages recognized under state law differentially treated
under DOMA. Id. By seeking to displace this protection and treating those persons as
living in marriages less respected than others, the federal statute is in violation of the
Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Id. (emphasis added).
16

By contrast, Plaintiffs here have no reasonable expectation that their same-sex
relationships will be recognized as marriages under Florida law. Florida has not, as New
York did, changed its law to recognize same-sex marriages from other jurisdictions nor
created same-sex marriage. Even if same-sex couples get married in Canada, Iowa,
New York, Massachusetts or Iowa, if they decide to return to or establish a new residency
in Florida they cannot reasonably expect that they will be recognized as married. Florida
law has, from the beginning, affirmed that marriage is the union of one man and one
woman, even as other states were creating new definitions. Those living in or moving to
Florida would expect to and be expected to be subject to the states affirmation of
marriage just as they would be subject to other state laws. Windsor affirmed the validity
of such expectations when it invalidated a federal law that interfered with them. 133 S.Ct.
at 2696. Applying Windsors reasoning to this case requires finding that, unlike Ms.
Windsor, Plaintiffs here could not expect to have their relationships recognized as
marriages and therefore do not have any cognizable injury, let alone an irreparable
injury.
The Eleventh Circuit has established that same-sex couples cannot challenge
existing domestic relations laws when they could have no reasonable expectation that
their relationships would be recognized. Lofton v. Secy of Dept of Children &
Family Servs., 358 F.3d 804, 814 (11th Cir. 2004). In Lofton, same-sex couples acting as
foster parents or guardians of children challenged a Florida statute prohibiting people
known to engage in current, voluntary homosexual activity from adopting. Id. at 807.
Using language substantially similar to that used by Plaintiffs here, the Lofton plaintiffs
claimed that they were entitled to a constitutional liberty interest in family integrity
17

because they share deeply loving emotional bonds that are as close as those between a
natural parent and child. Id. at 812. As part of this argument, appellants assert that the
state is denying them access to the panoply of constitutional and statutory protections that
accompany legal adoption solely on the basis of their homosexuality. Id. at 812 n.10.
The Lofton plaintiffs further alleged that the Florida law prevented them from obtaining
permanency in their relationships and creates uncertainty about the future integrity of
their families. Id.
The Eleventh Circuit disagreed. Id. at 814. [W]e find that under Florida law
neither a foster parent nor a legal guardian could have a justifiable expectation of a
permanent relationship with his or her child free from state oversight or intervention. Id.
Under Florida law, foster care is designed to be a short-term arrangement while the state
attempts to find a permanent adoptive home. Id. The state was not interfering with
natural family units that existed independent of the states power, but was regulating
relationships created by the state. Id. The plaintiffs entered into relationships to be a
foster parent and legal guardian, respectively, with an implicit understanding that these
relationships would not be immune from state oversight and would be permitted to
continue only upon state approval. Id. Therefore, they could have no justifiable
expectation of permanency in their relationships, particularly in light of the statutory
prohibition against homosexuals adopting. Id. In other words, the plaintiffs could not
establish that they had been denied a right to official recognition as parent and child.
Id. at 815.
Similarly, here, Plaintiffs had no justifiable expectation that they would be given
official recognition as married couples when they decided to return to or move to Florida
18

after having their same-sex relationships labeled as marriages in other jurisdictions. As
was true in Lofton, so in this case Plaintiffs entered into relationships with knowledge
that Florida law would not recognize them as married. They are not being denied rights
which they had any justifiable expectation. Therefore, they are not suffering a cognizable
injury, and certainly not an irreparable injury necessary to support a preliminary
injunction.
2. Without Proof Of A First Amendment Speech Violation,
There I s No Basis For A Finding Of I rreparable I njury.

Even if Plaintiffs could assert that there is a substantial likelihood of a violation
of equal protection or due process (which they cannot), they could not satisfy the
irreparable injury requirement. No authority from the Supreme Court or the Eleventh
Circuit has been cited to us for the proposition that the irreparable injury needed for a
preliminary injunction can properly be presumed from a substantially likely equal
protection violation. City of Jacksonville, 896 F.2d at 1285. The only area of
constitutional jurisprudence where we have said that an on-going violation constitutes
irreparable injury is the area of first amendment and right of privacy jurisprudence. Id.
(referencing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir.1983); Deerfield Medical
Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981)). As the Eleventh
Circuit explained, irreparable injury is presumed only from ongoing violations of First
Amendment free speech or invasion of privacy because they present imminent danger of
speech being chilled or prevented altogether, or in the case of invasion of privacy, present
the danger of an intangible injury that is irreversible. Siegel v. LePore, 234 F.3d 1163,
1177-78 (11th Cir. 2000).
19

There cannot be any such injuries to Plaintiffs. Amendment 2 and the associated
statutes merely affirm that marriage is the union of one man and one woman. Plaintiffs
attribution of various purposes and discriminatory intents notwithstanding, the sole
purpose of the challenged constitutional amendment and statutes are to confirm that
marriage in the State of Florida is, and always has been, the union of one man and one
woman. Relationships that do not meet that definition, be they comprised of two people
of the same-sex or more than two people, or any other combination, do not meet the
definition, and therefore cannot be recognized as marriages. The state is not regulating
speech nor inquiring into the private lives of its residents, and therefore is not interfering
with fundamental rights in a manner that can be regarded as an irreparable injury for
purposes of preliminary injunctive relief.
On the other hand, the millions of Florida voters who approved Amendment 2
will face the prospect of injury to First Amendment interests, i.e., irreparable injury,
should an injunction be issued. As the Supreme Court said in Schuette regarding the
voters-approved prohibition against race-based preferences:
Freedom embraces the right, indeed the duty, to engage in a rational, civic
discourse in order to determine how best to form a consensus to shape the
destiny of the Nation and its people. These First Amendment dynamics
would be disserved if this Court were to say that the question here at issue
is beyond the capacity of the voters to debate and then to determine.
2014 WL 1577512 at *16. Similarly here, the First Amendment rights of the Florida
voters who debated and determined that the constitution should affirm that marriage is
the union of one man and one woman would be violated if Amendment 2 were enjoined
under the circumstances presented here.
Since Plaintiffs cannot state a substantial likelihood of any constitutional
violation, there cannot be irreparable injury. Even if there were allegations of violations
20

of equal protection or due process, those allegations would not present the kind of
irreparable injury necessary for a preliminary injunction under Eleventh Circuit
precedent. With no reasonable expectation that their relationships would be recognized as
marriages and no allegations of constitutional violations, Plaintiffs cannot satisfy their
burden to establish irreparable injury, and therefore are not entitled to injunctive relief.
C. The Harm Caused To The Rights Of The People Of Florida If
An Injunction Is Granted Exceeds Any Purported Harm To
These Plaintiffs.

Weighing the harms that would befall the citizens of Florida if an injunction were
granted against the psychic injuries Plaintiffs allege but cannot substantiate would occur
if the status quo is maintained and marriage remains the union of one man and one
woman requires denial of injunctive relief. If this Court grants an injunction and compels
Florida to adopt the artificial construct of same-sex marriage, it will infringe upon the
First Amendment rights of millions of Florida voters who determined that marriage
remains, as it always has been, the union of one man and one woman. By contrast, if this
Court denies an injunction, then Plaintiffs will continue to live as same-sex couples in the
state that they chose to reside in with full knowledge that the state affirms that marriage is
the union of one man and one woman. Consequently, Plaintiffs cannot meet their burden
of demonstrating that the balance of harms weighs in their favor. City of Jacksonville,
896 F.2d at 1284.
The Eleventh Circuits cautionary instruction against pretrial injunctions against
legislative enactments is particular instructive for weighing the relative harms in this
case. Id.
In this country, democracy in government is, of course, viewed as a good
and normal thing. When a federal court before trial enjoins the
21

enforcement of a municipal ordinance adopted by a duly elected city
council, the court overrules the decision of the elected representatives of
the people and, thus, in a sense interferes with the processes of democratic
government. Such a step can occasionally be justified by the Constitution
(itself the highest product of democratic processes). Still, preliminary
injunctions of legislative enactmentsbecause they interfere with the
democratic process and lack the safeguards against abuse or error that
come with a full trial on the meritsmust be granted reluctantly and only
upon a clear showing that the injunction before trial is definitely
demanded by the Constitution and by the other strict legal and equitable
principles that restrain courts.

Id. at 1285. In this case, granting an injunction would overrule the decision of millions of
Floridians that marriage is, as it always has been, the union of one man and one woman,
and would thereby interfere with the process of a democratic government as described in
City of Jacksonville, id.
As the Florida Supreme Court affirmed, [c]itizens have the unquestioned right to
petition their governments for redress of what they believe are grievances. U.S. Const.
amend. I; Fla. Const. art. I, 5. One means of preserving this right is through the
procedures of initiative, referendum and recall. Krivanek v. Take Back Tampa Political
Comm., 625 So. 2d 840, 843 (Fla. 1993). Because of the primacy of these rights, courts
give particularly strict review to challenges to duly enacted voter initiatives. Browning v.
Florida Hometown Democracy, Inc., PAC, 29 So. 3d 1053, 1057-58 (Fla. 2010). In
Browning, the court found that the politically charged counter-petition revocation
campaigns at issue would essentially eviscerate and render meaningless the citizen-
initiative process. Id. The same is true with Plaintiffs politically charged attacks on
Floridas affirmation of marriage. If this Court should grant injunctive relief and
judicially repeal the now six-year-old constitutional amendment, it would render the
citizen-initiative process meaningless. Citizens could no longer exercise their First
22

Amendment right to redress grievances by amending their Constitution without fear of
having disgruntled parties seek judicial reversal. The careful balance between the three
branches of government would become little more than illusory. On the other hand, if an
injunction is denied, then Plaintiffs will continue as they have for the many years that
they have voluntarily resided in Florida while the law has affirmed that marriage is the
union of one man and one woman. Plaintiffs could have no expectation that their
relationships would be recognized as marriages in Florida since they choose to live there,
and so cannot assert any right that could justify the evisceration of the voters right to
amend their Constitution.
The Supreme Courts pronouncements in Bond, Windsor and Schuette further
demonstrate how the balance of harms requires denial of injunctive relief. As the Court
said in Bond, the exercise of state sovereignty in matters such as affirming that marriage
is the union of one man and one woman, not only protects the states inherent power to
regulate domestic relations, but also secures to citizens the liberties that derive from the
diffusion of sovereign power. 131 S.Ct. at 2364. In other words, [s]tates are not the sole
intended beneficiaries of federalism. Id. Federalism secures the freedom of the
individual. It allows States to respond, through the enactment of positive law, to the
initiative of those who seek a voice in shaping the destiny of their own times without
having to rely solely upon the political processes that control a remote central power. Id.
That is precisely what the people of Florida did when they affirmed that marriage is the
union of one man and one woman at a time when other states such as New York and
Massachusetts were upending natural law in favor of a man-made invention of same-sex
marriage. Enjoining that action would violate the fundamental constitutional rights of
23

Florida citizens to use the initiative process to shape the destiny of the states future by
adhering to natural law.
In Windsor the Supreme Court affirmed that the recognition of civil marriages is
central to state domestic relations law applicable to its residents and citizens, when it
invalidated Section 3 of DOMA because it improperly invaded the province of the states.
133 S.Ct. at 2691. The definition of marriage is the foundation of the States broader
authority to regulate the subject of domestic relations with respect to the [p]rotection of
offspring, property interests, and the enforcement of marital responsibilities. Id.
(citations omitted). Floridas citizens exercised that authority when they affirmed that
marriage is the union of one man and one woman in both Florida Statutes and the state
Constitution. Enjoining that action six years later would undermine the separation of
powers built into the federal and state constitutions and essentially disenfranchise
millions of Florida voters.
The Supreme Court has made it clear that the courts may not disempower the
voters from choosing which path to follow. Schuette, 2014 WL 1577512 at *14.
Were the Court to rule that the question addressed by Michigan voters is
too sensitive or complex to be within the grasp of the electorate; or that the
policies at issue remain too delicate to be resolved save by university
officials or faculties, acting at some remove from immediate public
scrutiny and control; or that these matters are so arcane that the
electorate's power must be limited because the people cannot prudently
exercise that power even after a full debate, that holding would be an
unprecedented restriction on the exercise of a fundamental right held not
just by one person but by all in common. It is the right to speak and debate
and learn and then, as a matter of political will, to act through a lawful
electoral process.
Id. at 15. Similarly here, if this Court were to grant the relief requested by Plaintiffs, it
would effectivelyto say that the issue of whether marriage should continue as the union of
one man and one woman or be reconstituted to accommodate other relationships is too
24

complex or arcane for the voters to decide. That would be an unprecedented restriction
on the exercise of a fundamental right held by all Floridians to act through a lawful
electoral process. See id.
Balanced against this restriction upon a fundamental right are Plaintiffs claims
that they should no longer have to abide by the law of their chosen state of residence.
While Plaintiffs couch their claims in constitutional language, in reality they are asking
this Court to supersede the electorates lawful exercise of its reserved powers and compel
the state to adopt an artificial construct of same-sex marriage. Plaintiffs can offer no
justification for upending the natural law definition of marriage that has always been in
place in Florida. Consequently, they cannot meet their burden of establishing that the
balancing of the relative harms weighs in favor of injunctive relief, as is required under
Church v. City of Huntsville, 30 F.3d at 1342. Consequently, injunctive relief must be
denied.
D. GRANTING AN INJUNCTION WOULD DISRUPT THE STATUS
QUO AND BE A DISSERVICE TO THE PUBLIC INTEREST.

The extraordinary harm that would result from upending Floridas affirmation of
marriage as the union of one man and one woman vis--vis the non-existent harm that
would befall Plaintiffs if an injunction is denied demonstrates that granting an injunction
would be a disservice to the public interest. The interest of the public, i.e., the Florida
electorate, is best served by preserving the exercise of its obligation to regulate and
protect marriage as the foundation of the superstructure of society. United States v.
Cannon, 4 Utah 122, 7 P. 369, 382 affd, 116 U.S. 55 (1885). In affirming that marriage
is the union of one man and woman, the Florida electorate fulfilled its obligation to deal
with the social relations, obligations and duties which emanate from an institution that is
25

a sacred obligation and a civil contract regulated by law upon which society is built.
Reynolds v. United States, 98 U.S. at 165.
Florida has engaged in a proper exercise of its sovereign authority within our
federal system, all in the way that the Framers of the Constitution intended by affirming
that marriage is the union of one man and one woman. Windsor, 133 S. Ct. at 2692. The
publics interest in preserving the foundational social institution will be disserved if this
Court enjoins Florida statutes and Constitution to impose an artificial social construct of
same-sex marriage. Consequently, the Court should deny Plaintiffs requests for
injunctive relief.
CONCLUSION
Because a preliminary injunction is an extraordinary and drastic remedy, its
grant is the exception rather than the rule, and the plaintiffs must clearly carry the burden
of persuasion on all four prerequisites for injunctive relief. United States v. Lambert, 695
F.2d 536, 539 (11th Cir. 1983). Plaintiffs have failed to do so. Therefore, Plaintiffs
Motions for Preliminary Injunctions in both Brenner v. Scott and Grimsley v. Scott should
be denied.
Dated: May 12, 2014.
Respectfully Submitted,
/s/ Horatio G. Mihet
Mathew D. Staver
Anita L. Staver
Horatio G. Mihet
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854-0774
800-671-1776
court@lc.org

Stephen M. Crampton
LIBERTY COUNSEL
P.O. Box 11108
Lynchburg, VA 24506
800-671-1776
court@lc.org

Attorneys for FFAI
26

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically on May 12, 2014 via the Courts CM/ECF system. Service will be
effectuated upon all parties and counsel of record via the Courts electronic notification
system.

/s/ Horatio G. Mihet
Horatio G. Mihet


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