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1:13-cv-00631 #23

1:13-cv-00631 #23

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Published by Equality Case Files
Doc 23 - State Defendants' Response to Motion motion for Temporary Restraining Order and Preliminary Injunction
Doc 23 - State Defendants' Response to Motion motion for Temporary Restraining Order and Preliminary Injunction

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Published by: Equality Case Files on Nov 22, 2013
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02/28/2014

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1
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
CHRISTOPHER DANIEL McNOSKY, and SVEN STRICKER,
Plaintiffs
, v. TEXAS GOVERNOR RICK PERRY, et al.
 Defendants.
 § § § § § § § § Case No. 1:13-CV-0631 SS
STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION _________________________________________________________________________
 TO THE HONORABLE SAM SPARKS: Defendants Texas Governor Rick Perry and Texas Attorney General Greg Abbott make this Response to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 18) and would respectfully show the Court the following:
 
Plaintiffs ask the Court for a temporary restraining order and a preliminary injunction to  prevent Defendants from enforcing a validly enacted Texas constitutional amendment, Tex. Const. art. 1, sec. 32, and statute, Tex. Fam. Code § 2.001. The Court should deny Plaintiffs’ motion. A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter v. Natural Res. Def. Council,  Inc.
, 555 U.S. 7, 22 (2008) (emphasis added 
); see also Mazurek v. Armstrong
, 520 U.S. 968, 972 (1997) (per curiam) (an injunction is “an extraordinary and drastic remedy, one that should not  be granted unless the movant, by a clear showing, carries the burden of persuasion”) (citation
Case 1:13-cv-00631-SS Document 23 Filed 11/21/13 Page 1 of 11
 
2 omitted);
 Ex Parte Young
, 209 U.S. 123, 166 (1908) (“[N]o injunction ought to be granted unless in a case reasonably free from doubt.”) (emphasis added). “To be entitled to a preliminary injunction, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest. “We have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements (internal citations omitted).”
 Bluefield Water  Ass'n, Inc. v. City of Starkville, Miss
., 577 F. 3d 250, 252– 253 (5th Cir. 2009). Contrary to Plaintiffs’contention, Plfs’ Mot. ¶ 8, a plaintiff who seeks a preliminary injunction must demonstrate much more than “serious questions going to the merits.” It is not enough even to show a likelihood of success on the merits by a preponderance of the evidence. Instead, the plaintiff must make a “a clear showing” of a likelihood of success of the merits, one that is “reasonably free from doubt,” before this “extraordinary and drastic remedy” can be entertained.
See Winter 
, 555 U.S. at 22-23;
 Mazurek 
, 520 U.S. at 972;
Young
, 209 U.S. at 166. The Supreme Court’s caution regarding preliminary injunctions is rooted partly in constitutional concerns that arise whenever a single federal judge enjoins the implementation of a State’s democratically enacted laws, especially before a definitive finding that the state law contravenes a provision of “supreme” federal law.
See generally
 David P. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. CHI. L. REV. 1 (1964);
see also
 U.S. CONST. art. VI (listing the Constitution, federal statutes, and treaties as the only sources of “supreme” law capable of preempting state laws); U.S. CONST. art. IV (requiring that the federal government
Case 1:13-cv-00631-SS Document 23 Filed 11/21/13 Page 2 of 11
 
3 “guarantee to every State in this Union a Republican Form of Government”); U.S. CONST. amend. X (reserving to the States all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States”). The Plaintiffs have utterly failed to meet that difficult burden here for the following reasons.
I. P
LAINTIFFS
H
AVE
N
OT
M
ADE A
CLEAR SHOWING
 
T
HAT
I
S
REASONABLY
F
REE
F
ROM DOUBT
 
T
HAT
T
HEY
W
ILL
P
REVAIL ON THE
M
ERITS
. A. Plaintiffs Failed to Satisfy the Procedural and Substantive Requirements for a TRO.
As an initial matter, Plaintiffs did not comply with the basic requirements for a temporary restraining order. Specifically, their motion did not include an affidavit or verified complaint, as required by Rule 65(b)(1)(A). What’s more, Plaintiffs have not raised any argument or alleged any facts that they will suffer “immediate and irreparable injury, loss, or damage” if a TRO does not issue before the court makes a decision regarding a preliminary injunction.
See
 Fed. R. Civ. P. 65(b). Accordingly, the Court should deny Plaintiffs’ request for a TRO without further consideration.
B. Plaintiffs’ Equal-Protection Claim Lacks Merit.
Plaintiffs argue that the challenged laws violate the equal-protection guarantee of the Fourteenth Amendment by declining to recognize same-sex marriages from other states and by declining to allow same-sex couples to marry in Texas. Plfs’s’ Mot. ¶¶ 10-20. However, Plaintiffs do not cite a single case in which any federal appellate court has concluded that States may not limit marriage to opposite-sex couples. In fact, the only federal appellate court to consider the issue held that States do not violate the Constitution by maintaining the traditional definition of marriage.
Citizens for Equal Prot. v. Bruning 
, 455 F.3d 859 (8th Cir.
Case 1:13-cv-00631-SS Document 23 Filed 11/21/13 Page 3 of 11

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