Preliminary Injunction Filed in Lawsuit Seeking Immediate Relief From Mississippi Adoption Ban


August 28, 2015

Two same-sex couples with children seeking immediate legal rights

Jackson, MS – A motion seeking a preliminary injunction was filed today by two married couples with children in Campaign for Southern Equality v. Mississippi Department of Human Services, the federal lawsuit challenging the constitutionality of Mississippi’s law banning adoption by same-sex couples. Mississippi is the only state left in the nation that bans gay couples from adopting without regard for their qualifications as parents or the best interests of the child.

The Plaintiffs who filed the motion, Donna Phillips and Janet Smith & Kathy Garner and Susan Hrostowski, are among the “many same-sex couples” who the Supreme Court recently recognized “provide loving and nurturing homes to their children.” But because of the Mississippi Adoption Ban, only one member of each couple is a legal parent to their child. The motion argues that these families are irreparably harmed each day that the adoption ban remains in place and the other parent should be allowed to pursue adoption immediately.

Together for 20 years and now legally married, Donna Phillips and Janet Smith are raising an eight-year-old daughter. Kathy Garner and Susan Hrostowski were married in 2014 and have been together for nearly 26 years. They have a fifteen-year-old son. Under the current law, neither Janet nor Susan is recognized as a legal parent to their children.

Lawsuit documents are available at:
Motion for Preliminary Injunction
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction
Declaration of Susan Hrostowski in Support of Plaintiffs’ Motion for Preliminary Injunction
Declaration of Janet in Support of Plaintiffs’ Motion for Preliminary Injunction

“The ‘what ifs’ are always there. What if something happens to me? What if something happens to Kathy. Our son has had two parents for 15 years and only one of us has the rights and responsibilities that other two parent families take for granted. We chose to have a child, are blessed to have a child and it is fundamentally unfair for us to be married in all 50 states and U.S. territories, but not for the three of us to be considered a family when marriage and family are intricately interwoven,” says Susan Hrostowski.

“All families should be treated with equal dignity and respect. We simply want what is best for our child. Every day, both of us try our best to take care of our daughter and make decisions that she, as a child, cannot. Most of all, we want her to know that we are a ‘true family’ equal to any other,” says Donna Phillips.

Lead counsel for the plaintiffs is Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP.  Plaintiffs are also represented by Mississippi attorney Robert McDuff of McDuff & Byrd, based in Jackson, Mississippi.

“There is no question that Donna and Jan and their daughter, and Kathy and Susan and their son, are being injured every day that the Mississippi Adoption Ban stands between them and full legal recognition of their families. There is no possible reason that would justify their kids having only one legal parent instead of two. This motion asks the Court to grant them immediate relief so they don’t have to wait any longer,” says lead counsel Roberta Kaplan.

“Same-sex couples in Mississippi should not have to wait for the legal rights that they are now guaranteed under the U.S. Constitution. Every day that families are denied the legal rights afforded to parents is an injustice to the thousands of same-sex parents raising happy and healthy children across the state of Mississippi,” says Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality, which has been advocating for LGBT equality across Mississippi since 2012 through public actions, public education campaigns and lawsuits.

Gabriel Blau, Executive Director of Family Equality Council, says: “It is time for Mississippi to put the best interests of its children first. There is no rational argument for denying loving families the legal protections to which they are entitled. To continue to deny children the safety and stability of legal relationships with both of their parents is unconscionable. Each of these stories represents what all parents strive for – to protect our children. It is time for Mississippi to act and mitigate these egregious harms.”

The newly filed preliminary injunction argues that:

There is obviously no dollar amount that can make Donna Phillips and Janet Smith whole for the fear they suffer knowing that if anything should happen to Donna while she is deployed, Jan could lose custody of her child. . . .  There is no actuary who could quantify the pain Kathy Garner and Susan Hrostowski feel by virtue of the fact that their state’s laws tell everyone—state officials like Defendants, their neighbors, and especially their own child—that Susan’s love and commitment to their child is unworthy of the dignity, status, and protections of parentage. . . . The Supreme Court has made it crystal clear that these Parent Plaintiffs have a due process and equal protection right under the U.S. Constitution to have status as legal parents to their own children.  Given this undeniable principle, as ‘has repeatedly been recognized by the federal courts at all levels[,] violation of constitutional rights constitutes irreparable harm as a matter of law.’”


Family Equality Council connects, supports, and represents the three million parents who are lesbian, gay, bisexual, transgender and queer in this country today and their six million children of all ages. For over 30 years, we have raised our children and raised our voices toward fairness for all families.

Based in Asheville, North Carolina, the Campaign for Southern Equality is a non-profit organization that empowers LGBT individuals and families across the South and advocates for full legal equality for all.

Contact: Aaron Sarver, Communications Director, Campaign for Southern Equality

Emily Hecht-McGowan, Director of Public Policy, Family Equality Council