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APPEAL NO. 13-4178 U NITED S TATES C OURT OF A PPEALS F OR T HE T ENTH C IRCUIT __________________________________________ DEREK KITCHEN, et al. Plaintiffs-Appellees, v. GARY R. HERBERT, et al. Defendants-Appellants. __________________________________________ Appeal from the United States District Court for the District of Utah Civil Case No. 2:13-cv-217 (Judge Robert J. Shelby) __________________________________________ B RIEF
OF A M ICUS C URIAE M ICHAEL J. P ERRY , D ANIEL O. C ONKLE AND B RETT G. S CHARFFS , P ROFESSORS OF L AW IN S UPPORT OF N EITHER P ARTY AND N EITHER A FFIRM ANCE N OR R EVERSAL

__________________________________________ Brett G. Scharffs Counsel of Record* 530 JRCB Provo, UT 84602 Tel: (801) 422-9025 Email: scharffsb@law.byu.edu *Admission Pending Attorney for Michael J. Perry, Daniel O. Conkle and Brett G. Scharffs, Professors of Law.

Docket Reference Number: [10148428]

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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, the undersigned states that the amici are not a corporation that issues stock or has a parent corporation that issues stock.

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TABLE OF CONTENTS Corporate Disclosure Statement ................................................................................ i! Table of Authorities ................................................................................................. iii! Interest of Amicus Curiae ........................................................................................ 1! Argument .................................................................................................................. 2! I.! This Court Need Not Impugn the Motives of Voters to Resolve the Question of the Constitutionality of Utahs Marriage Amendment. .............. 2! A.! The Voters Who Approved Utahs Marriage Amendment Could Have Acted from a Number of Motivations Entirely Unrelated to Animus. ............................................................................................ 3! B.! Windsors Conclusions Regarding Animus Are Inapposite Here. .......... 5! II.! Charging Voters With Bias Will Unnecessarily Marginalize Those Who Disagree and Chill Public Debate................................................................... 7! Conclusion .............................................................................................................. 10! Certificate of Compliance with RuleS 29-2(d) and 32(a)(7)(B) ............................ 12! Certificate of Service .............................................................................................. 13!

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TABLE OF AUTHORITIES

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Bond v. United States, 131 S.Ct. 2355, 2359 (2011) ................................................ 8 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) ........................................................ 2 United States v. Windsor, 133 S.Ct. 2675, 2693 (2013) ....................................... 5, 7
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Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, 89 IND. L. J. 27 (2014) ............................................................................................................. 10 Michael J. Perry, Right Decision, Wrong Reason COMMONWEAL MAGAZINE, August 5, 2013 ...................................................................................................... 7 Michael J. Perry, Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States UNIVERSITY
OF

ILLINOIS LAW

REVIEW (forthcoming, 2014) ................................................................................ 7 Richard W. Garnett, Worth Worrying About? COMMONWEAL MAGAZINE, August 5, 2013 ...................................................................................................................... 8 William C. Duncan, Why French Law Rejects a Right to Gay Marriage: An Analysis of Authorities 2 INTERNATIONAL JOURNAL
THE FAMILY OF THE JURISPRUDENCE OF

215 (2011) ........................................................................................ 4

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INTEREST OF AMICUS CURIAE1 2 Amici are professors of law who have different opinions about the constitutional status of marriage laws but all agree that courts need not rest their analysis of these laws on imputations of animus. Amici are: Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Michael Perry Robert W. Woodruff Professor of Law Emory University School of Law Brett G. Scharffs Francis R. Kirkham Professor of Law, Associate Director of the International Center for Law and Religion Studies, and Associate Dean of Research and Academic Affairs J. Reuben Clark Law School, Brigham Young University Note that institutional affiliations are provided for identification purposes only and imply no endorsement of the views expressed herein by any of the institutions or organizations listed.

No partys counsel authored the brief in whole or in part, and no one other than the amici curiae, its members, or its counsel contributed money that was intended to fund preparing or submitting the brief. 2 This brief is filed with consent of all parties; thus no motion for leave to file is required. See Notice of All Parties Consent to Amicus Curiae Briefs, ECF No. 37; see also Fed. R. App. P. 29(a). 1

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ARGUMENT I. This Court Need Not Impugn the Motives of Voters to Resolve the Question of the Constitutionality of Utahs Marriage Amendment. Though the court below relied on various grounds and did not specifically use the word animus in ruling Utah's marriage laws unconstitutional, the court said the avowed purpose and effect of Amendment 3 is to deny the benefits and responsibilities of marriage to same-sex couples, which is another way of saying that the law imposes inequality. Kitchen v. Herbert, Case No. 2:13-cv-217 (2013), slip op at 39. The District Court also found that, because Amendment 3 went further and held that no domestic union could be given the same or substantially equivalent legal effect as marriage, its wording suggests that the imposition of inequality was not merely the law's effect, but its goal. Id. In this and other portions of its opinion, it appears that the District Court, without formally invoking an animus rationale, in fact relied in part on animus or similar reasoning. In any event, this panel should not adopt that line of analysis in assessing the constitutional claims at issue here. Whatever the constitutional merits of Utah's marriage laws, it is completely inaccurate to charge the voters who approved it with having the sole purpose of expressing moral disapproval of samesex couples, of acting out of animus which can only be understood to describe

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the demeaning view that gays and lesbians are less worthy human beings than those who are not gay or lesbian. A. The Voters Who Approved Utahs Marriage Amendment Could Have Acted from a Number of Motivations Entirely Unrelated to Animus.

It is clear that voters could have been acting on a variety of motives when they approved the marriage amendment. In other words, it is wrong to say that the amendment would not have become law but for the irrational prejudice, animus, of voters. This is not to say such rationale should lead this Court to uphold the law as constitutional; it merely states that such reasons are rational in the non-legal, more fundamental sensehow voters actually thought about the amendment. Amici briefly highlights four rationales that, while argued more fully by the parties, demonstrate the flaw with assuming the but for cause was animus. For instance, they might have been concerned that courts have taken too large a role in settling policy disputes. Voters could have supported the amendment to ensure increase[d] opportunity for citizen involvement in democratic processes (Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)) by preserving for the people of the State the opportunity to directly express their opinion on a matter as central as the meaning of marriage rather than waiting for the judicial system to weigh competing claims. They would have understood that if they or their fellow

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citizens changed their minds, they would be free to repeat the process and vote in another election for a different result. They might have been concerned that a shift in the law of marriage would signal that there is nothing unique or uniquely beneficial about a child being raised by her or his married biological parents. The opposition to same-sex marriage in France has focused on the right of children to be raised by a mother and father. See Annabel Roberts, Why Some in Supposedly Liberal France Are Up in Arms About Gay Marriage NBC NEWS, February 2, 2013 at

http://worldnews.nbcnews.com/_news/2013/02/02/16817729-why-some-insupposedly-liberal-france-are-up-in-arms-about-gay-marriage (They say children have a fundamental right to have a father and a mother.). Frances legal tradition has long linked the definition of marriage and the filiation of children. See William C. Duncan, Why French Law Rejects a Right to Gay Marriage: An Analysis of Authorities 2 INTERNATIONAL JOURNAL OF THE JURISPRUDENCE OF THE FAMILY 215 (2011). Voters in Utah, too, could believe that changing the definition of marriage would make more acceptable or even inevitable, family arrangements in which a mother or father is excluded by operation of law. The voters choosing to support the Utah marriage amendment might have been endorsing caution in decisions affecting a vital social institution. Changes in past decades to the understanding and practice of marriage and family life have had

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significant ramifications, some of which were not necessarily predictable at the time of adoption. It is hardly irrational for Utah voters to have concluded that they would, on balance, prefer to wait until the implications of another fundamental change were clear. At the time of the adoption of Utahs amendment, only one nation had adopted the definition of marriage as the union of two persons irrespective of sex. Voters could have been motivated by concern that a change in the definition of marriage would create conflicts between discrimination laws and the practices of religious organizations and individuals who understand marriage to be the union of a husband and wife. Many religious believers understand marriage in this way and, further, believe that any sexual relations outside of this setting is morally objectionable. Since most believe that facilitating such relations is sin, they feel compelled by their faith commitments to decline to give approval to them. This denial could take many forms that would arguably put people of faith or religious organizations at odds with nondiscrimination principles. B. Windsors Conclusions Regarding Animus Are Inapposite Here.

It is true, though regrettable, that the Supreme Court recently relied on the animus rationale in invalidating the federal Defense of Marriage Act. Importantly, the Court noted that it was important in that case that the challenged provision was an unusual deviation from the usual tradition of recognizing and accepting state

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definitions of marriage. United States v. Windsor, 133 S.Ct. 2675, 2693 (2013). The Court said it was this deviation, not the fact that the law implicated marriage that triggered an especially careful consideration. Id. In Windsor the majority finds fault with the stated purpose of the law. Id. at 2693. Of course, in that case the federal government was limited to promoting goals that are within the ambit of its enumerated powers, which meant that Congress could not rely on the greater variety of rationales a state could. In this case, a finding that the stated purpose of Utahs amendment was suspect would be extremely difficult to make in the context of the approval of the amendment since there are no extant speeches by voters or legislative history as such from which to discern the purpose of those who approved the law. The voters in Utah had to approve the law in two separate elections, which makes it even more difficult to extract one motive from the many voters in two elections. Given that Utah voters could have been, and likely were, motivated by the kinds of nonanimus rationales noted above, a finding of animus would be extraordinarily tenuous. Established principles of constitutional decision-making are entirely adequate to determine the constitutional claims made in this challenge. The Supreme Court has given plenty of direction for weighing due process and equal

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protection claims without requiring lower courts to impugn the motives of supporters of the challenged laws.

II. Charging Voters With Bias Will Unnecessarily Marginalize Those Who
Disagree and Chill Public Debate. It is clear that, whatever the intention, labeling a provision as unconstitutional because motivated by animus has the effect of casting an aspersion on those who supported the measure, and in turn, marginalizes them, not merely as having mistakenly supported a policy at odds with a constitutional provision but as bigots and discriminators. As Professor Michael Perry noted recently, to suggest that support for a marriage law is based on the view that gays and lesbians are inferior human beings is tendentious in the extreme, and demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution. Michael J. Perry, Right Decision, Wrong Reason COMMONWEAL MAGAZINE, August 5, 2013 at https://www.commonwealmagazine.org/print/34786; see also Michael J. Perry, Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States UNIVERSITY
OF

ILLINOIS LAW REVIEW (forthcoming,

2014) (David C. Baum Memorial Lecture). This, in an article that is otherwise supportive of the idea that the U.S. Constitution requires recognition of same-sex marriages. Professor Richard Garnett similarly notes that the characterization [of the] purpose and of the motives of [those who support legal definition of marriage 7

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as the union of a man and a woman] reflects a view that those statesand religious communitiesthat reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom. Richard W. Garnett, Worth Worrying About? COMMONWEAL MAGAZINE, August 5, 2013 at

https://www.commonwealmagazine.org/print/34803. Professor Garnetts observation regarding compromise and accommodation points to a serious side effect of the marginalization of conscientious objectors to the new view of marriage. That is, the imposition of the label of bigotry and animus to those who hold a different position will have a chilling effect on public debate over the definition of marriage and related issues. It seems axiomatic that one need not hear out the bigots who express concerns. In turn, those who might have sincere questions about the wisdom of various policies related to same-sex marriages (the role of assisted reproductive technology, presumptions of parentage, religious liberty of those whose faith compels a different understanding of marriage) will feel powerful pressure to subdue or silence their concerns. Ironically, this chilling effect would undermine one of the values underlying the majority decision in Windsor v. United States, 133 S.Ct. 2675 (2013). Although that decision (unfortunately, in our view) endorsed the idea that Congress had

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acted from animus in amending the Dictionary Act to specify that marriage meant the union of a husband and wife, it also spoke at length about the importance of state-based decisions about the meaning of marriage. The Courts discussions of this point are instructive: In acting first to recognize and then to allow same-sex marriages, New York was responding to the initiative of those who [sought] a voice in shaping the destiny of their own times. These actions 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. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other. Id. at 2692 (quoting Bond v. United States, 131 S.Ct. 2355, 2359 (2011)). After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. Id. at 2689. The principles so valued by the Court in these passagesconsensus forming, discussion and weighing of contrasting argumentsare crucial interests

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for a democracy but they would be threatened by a dictate that some arguments and positions are outside the bounds of acceptable discourse. Not arguments that have proven to be so through long experience but respectable views of many of our fellow-citizens which, until quite recently were widely understood and widely shared. Whatever the merits of the Courts invocation of animus in Windsor, its application in a case like this is even more tenuous. As Professor Daniel Conkle has explained: When the question turns from DOMA to state laws, moreover, there are additional reasons for avoiding animus-based reasoning. In the first place, the state-law context eliminates the federalism concern that was present in Windsor and that the Court directly linked to its animus rationale. In addition, the recognition of same-sex marriage as a Fourteenth Amendment right will raise a host of religious liberty questions. Needless to say, if the Court were to recognize a right to same-sex marriage by characterizing opponents as animusdriven, that reasoning would hardly support a sensitive accommodation of these important competing liberties. Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, 89 IND. L. J. 27 (2014). CONCLUSION For the foregoing reasons, amici respectfully request this court not make a decision based on imputation of animus.

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Dated: February 10, 2014 Respectfully submitted, s/Brett G. Scharffs Attorney for Michael J. Perry, Daniel O. Conkle and Brett G. Scharffs, Professors of Law

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CERTIFICATE OF COMPLIANCE WITH RULES 29-2(d) AND 32(a)(7)(B) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 2,277 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. Civ. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman.

Dated: February 10, 2014 s/ Brett G. Scharffs Attorney for Michael J. Perry, Daniel O. Conkle and Brett G. Scharffs, Professors of Law

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CERTIFICATE OF SERVICE I hereby certify that on February 10, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF system. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.

s/ Brett G. Scharffs Attorney for Michael J. Perry, Daniel O. Conkle and Brett G. Scharffs, Professors of Law

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