Alford et al v. Moulder

Filing 20

ORDER denying 2 Motion for Preliminary Injunction. Signed by District Judge Carlton W. Reeves on 6/20/2016. (AC)

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
Plaintiffs Nykolas Alford, Stephen Thomas, and the ACLU of Mississippi seek a
preliminary injunction halting “House Bill 1523,” 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 bill.1 In relevant part,
§ 3(8)(a) grants any government employee who issues marriage licenses a right to recuse himself

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The plaintiffs’ memoranda emphasize how HB 1523 may lead to discriminatory treatment of same-sex married
couples. None of the 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.2 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 if the 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 of Holly 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 of Huntsville, 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,

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The bill protects a total of three “sincerely held religious beliefs or moral convictions”: “(a) Marriage is or should
be recognized as the union of one man and one woman; (b) 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.

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91 (3d Cir. 1992). “[T]he moving party must make a clear showing of immediate irreparable
harm.” Id. (quotation marks and citation omitted).
III.

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 defines 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

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Because the motion fails at step two, the remaining elements of the preliminary injunction standard need not be
considered. See La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010).

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imminent. The ACLU has the same problem. If a member of the 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 10 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.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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