Utah Counties Amicus

Appellate Case: 13-4178
Document: 01019200414
Date Filed: 02/10/2014
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No. 13-4178 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DEREK KITCHEN, individually, et al., Plaintiffs-Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et al., Defendants-Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant. (Appeal from the United States District Court for the District of Utah, Civil Case No. 2:13-CV-00217-RJS)
__________________________________________ BRIEF OF AMICI CURIAE SIXTEEN UTAH COUNTIES (LISTED BELOW) IN SUPPORT OF DEFENDANTS-APPELLANTS AND REVERSAL (AMICI SIXTEEN UTAH COUNTIES: JUAB, BEAVER, BOX ELDER, CACHE, EMERY, GARFIELD, IRON, KANE, MILLARD, MORGAN, SANPETE, SEVIER, UINTAH, UTAH, WASATCH, AND WASHINGTON) Lynn D. Wardle, Esq. Brigham Young University Law School , Room 518 Provo, Utah 84602 (801) 422-2617 Email: wardlel@law.byu.edu Counsel of Record for Amici Fourteen Utah Counties
Jared W. Eldredge Juab County Attorney 160 N. Main St. Nephi, UT 84648 435-623-3460 Email: jarede@co.juab.ut.us
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . iii STATEMENT OF INTEREST OF AMICI CURIAE .. .. X SUMMARY OF ARGUMENT 1 ARGUMENT I. THE DISTRICT COURT ERRONEOUSLY VIOLATED FEDERALISM PRINCIPLES AND SETTLED PRECEDENTS (INCLUDING WINDSOR V UNITED STATES, 133 S.CT. 2675 (2013)) CONFIRMING THAT MARRIAGE IS A MATTER FOR THE STATES TO REGULATE AND REQUIRING FEDERAL RESPECT AND DEFERENCE . ..... 2 THE DISTRICT COURT ERRONEOUSLY DISCOUNTED THE IMPORTANCE TO THE STATE OF THE GENDER-INTEGRATING DEFINITION OF MARRIAGE TO PROMOTE THE CORE PURPOSE OF MARRIAGE OF INCREASING THE LIKELIHOOD THAT CHILDREN WILL BE BORN TO AND RAISED BY BOTH THEIR MOTHER AND THEIR FATHER IN A STABLE, ENDURING FAMILY UNIT. ............... 14 THE DISTRICT COURT ERRONEOUSLY DISTORTED LOVING V. VIRGINIA, 367 U.S. 1 (1967) AS A KEY PURPOSE OF LOVING WAS TO LIBERATE MARRIAGE FROM CAPTURE BY PERSONS SEEKING TO REDEFINE MARRIAGE TO ADVANCE POLICIES EXTRANEOUS TO MARRIAGE ... XX THE DISTRICT COURT ERRONEOUSLY DISREGARDED THE BINDING PRECEDENT OF BAKER V. NELSON, 409 U.S. 810 (1972), IN WHICH, JUST FIVE YEARS AFTER DECIDING LOVING THE COURT REJECTED THE CLAIM THAT STATE LAW ALLOWING ONLY DUAL-GENDER MARRIAGE VIOLATED LOVING AND THE CONSTITUTION .. . . . . . . . .. 20
II.
III.
IV.
CONCLUSION: BOTH POLICY AND PRECEDENT COMPEL REVERS .... 27
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STATEMENT OF RELATED CASE XX CERTIFICATE OF COMPLIANCE WITH RULE 32(A) .. XX CERTIFICATE OF SERVICE .. XX CERTIFICATE OF DIGITAL SUBMISSION . XX
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TABLE OF AUTHORITIES Page Decisions of the United States Supreme Court Alden v. Maine, 527 U.S. 706, 759 (U.S. 1999) .. 11 Baker v. Nelson, 409 U.S. 810 (1972), dismissing for want of a substantial federal question the appeal in Baker v. Nelson, 91 N.W.2d 185 (Minn. 1971) ......................................................................................... 9-10, 31 Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858) 12 Boddie v. Connecticut, 401 U.S. 371, 376 (1971) ....................................................... 22 Bond v. United States, 131 S. Ct. 2355, 2364 (U.S. 2011) .. 15 Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 684-685 (U.S. 1999) ... 15 Dubroff v. Dubroff, 833 F.2d 557, 561 (5th Cir. 1987) ... 18 Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991) 15 Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................ 22 Haddock v. Haddock, 201 U.S. 562, 575 (1906) . 14 Hicks v. Miranda, 422 U.S. 332 (1975) . 32, 33 Hopfmann v. Connolly, 471 U.S. 459, 460 (1985) .. 32 In re Burrus, 136 U.S. 586, 593-594 (1890) 13 Kitchen v. Herbert, Case No. 2:13-cv-217 (D.D. Utah, Dec. 20, 2013) .... 7, 11, 25, 32 Lehman v. Lycoming Cnty. Childrens Servs. Agency, 458 U.S. 502, 512 (1982) .. 12 Loving v. Virginia, 388 U.S. 1 (1967) ................................................... 9, 14, 22, 25-28
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Mandel v. Bradley, 432 U.S. 173 (1977) . 32 Maynard v. Hill, 125 U.S. 190 (1880) .......................................................................... 23 Meyer v. Nebraska, 262 U.S. 390 (1923) .................................................................... 23 Moore v. Sims, 442 U.S. 415 (1979) .. 12, 18 Morrow v. Winslow, 94 F.3d 1386, 1397 (10th Cir. 1996) .. 18 New State Ice Co v Liebmann, 285 US 262, 311 (1932) . 19 Pennoyer v. Neff, 95 U.S. 714, 734 (1878) . 12 Roper v. Simmons, 543 U.S. 551, 578 (U.S. 2005) . 15 Roe v. Wade, 410 U.S. 113 (1973) ............................................................................... 22 Skinner v. Oklahoma, 316 U.S. 535 (1942) ................................................................. 23 Sosna v. Iowa, 419 U.S. 393 (1975) .. 12, 14 United States v. Lopez, 514 U.S. 549, 575-578 (U.S. 1995) 15 United States Term Limits v. Thornton, 514 U.S. 779, 838 (U.S. 1995) . 15 United States v. Windsor, 133 S.Ct. 2675 (2013) ................................. . 10, 13 Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................... 22
Decisions of United States Courts of Appeals Gill v. Office of Personnel Management, 682 F. 3d 1 (1st Cir. 2012).......................... 33 United States v. Bigford, 365 F.3d 859, 869-870 (10th Cir. 2004) . 17 Windsor v. United States, 699 F. 3d 169 (2d Cir., 2012) ........................................ 11, 33 Decisions of United States District Courts
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Jackson v. Abercrombie, 2012 U.S. Dist. LEXIS 111376 (U.S. Dist. Haw., Aug. 8, 2012) ....................................................................................................................... 33 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ............................................. 33 Decisions of State Courts Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972) ........................................... 31, 11 Other State Materials Utah Code Annot. 30-1-2 .......................................................................................... 11 Utah Constitution, art. I, 29 (1) ................................................................................. 11 Utah Same-Sex Marriage Ban, Amendment 3 (2004), available at http://ballotpedia.org/Utah_SameSex_Marriage_Ban,_Amendment_3_%282004%29 (seen 7 February 2014) ...... 28 Decision of a British Court In re G Children (FC) [2006] UKHL 43, http://www.publications. parliament.uk/ pa/ld200506/ldjudgmt/jd060726/child-1.htm (last seen January 18, 2013) .......... 21
Miscellaneous Sources, Law Review and Journal Articles, Notes, Newspapers, Etc. I WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *457 ............... 21 139 CONG. REC. 13, 520 (1993) (statement of Senator Baucus quoting Colin Powell, Chairman, Joint Chiefs of Staff) ............................................................... 29 A. Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal Development, in WHATS THE HARM?: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY? 3 (Lynn D. Wardle, ed., 2008) ....................................................................................................................... 21
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Alliance Alert, Marriage Amendment Vote Percentages: State by State, available at http://www.alliancealert.org/2011/08/24/marriage-amendment-votepercentages-state-by-state/ (last seen February 7, 2014) ...................................... 29 Anne C. Dailey, Families and Federalism, 143 U. PA. L. REV. 1787, 1789 (1995) . 12, 18 Daily, 143 U. PA. L. REV. at 1789................................................................................. 13 EUROPEAN BIRTH RATES REACH HISTORIC LOW IN PART BECAUSE OF RECENT FALL IN EASTERN EUROPE, Sept. 8, 2006, available at http://www.medicalnews today.com/medicalnews.php?newsid=51329 (last seen January 18, 2013) .......... 24 THE FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Rossiter ed. 1961) .... 17 George W. Dent, Jr., Straight Is Better: Why Law and Society May Legitimately Prefer Heterosexuality, 15 TEX. REV. L. & POLITICS (2010), available at http://ssrn.com/abstract=1649574 (last seen January 18, 2013)....................... 20, 24 John C. Eastman, Decoding the Constitutional Challenges to Traditional Marriage, 14 Engage 4 (Feb. 2013) ........................................................................................ 20 Jonathan H. Adler, Interstate Competition and the Race to the Top, 35 HARV. J.L. & PUB. POLY 89, 89 (2012) ...................................................................................... 16 Kristin Anderson Moore, Susan M. Jekielek & Carol Emig, Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It? 6 (Child Trends Research Brief, June, 2002), available at http://www.childtrends.org/files/marriagerb602.pdf (last seen January 18, 2013) ....................................................................................................................... 21 Lynn D. Wardle & Lincoln C. Oliphant, In Praise of Loving: Reflections on the Loving Analogy for Same-Sex Marriage, 51 HOW. L. J. 1117 (2007) .......................................................................................... 26, 28 Lynn D. Wardle, Involuntary Imports ................................................................... 27, 30 Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (15 January 2014), available at http://www.law2.byu.edu/site/marriagefamily/home (seen 7 February 2014) .. ............................................................... 9, 30
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Lynn D. Wardle, Loving v. Virginia and The Constitutional Right to Marry, 17901990, 41 HOW. L. J. 289 (1998) ............................................................................. 22 Lynn D. Wardle, Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, 12 J. L. & FAM. STUDS. 315 (2010) .......................... 27 Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 951 (2010) ........................ 29 Lynn D. Wardle, The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage, 25 B.Y.U. J. Pub. L. 287 (2011) ..................................... 24 Lynn D. Wardle, Tyranny, Federalism and the Federal Marriage Amendment, 17 YALE J.L. & FEMINISM 221, 22649 (2005) .............................................. 12, 16, 18 Niall Ferguson, Eurabia?, N.Y. Times Magazine, April 4, 2004, available at http://www.nytimes.com/2004/04/04/magazine/04WWLN.html (seen February 10, 2014) ................................................................................................................ 24 Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 J. CONTEMP. HEALTH L. & POLY 1 (1996) ..................................................................................................................... 26 Pope John Paul II quoted in My Catholic Family at http://www.my-catholicfamily.com/280/pope-john-paul-ii-as-the-family-goes-so-goes-the-nation/ (seen 10 February 2014) .................................................................................................. 24 Robert A. Destro, Introduction, 1998 Symposium: Law and the Politics of Marriage: Loving v. Virginia After 30 Years, 47 CATH. U. L. REV. 1207 (1998) .. 26 Robert A. Pratt, Crossing the Color Line: A Historical Assessment and Personal Narrative of Loving v. Virginia, 41 HOW. L.J. 229 (1998) ................................... 26
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STATEMENT OF INTEREST OF AMICI CURIAE1, 2 The amici are sixteen counties in the State of Utah (over half of the counties in the State). As County governmental entities, the amici counties carries out various duties delegated by the State which includes the issuance and processing of marriage licenses to eligible applicants and administration of other programs for families. Amicus Juab County, an agricultural region located in central Utah about 85 miles south of Salt Lake City, was formed in 1852 just five years after the first pioneer settlers arrived in what is now the state of Utah and just two years after Utah was organized as a Territory of the United States. In 2004 the citizens of Juan County overwhelmingly approved the passage of Amendment 3 with over 73% of the voters supporting it. Amicus Beaver County, an agricultural and mining area located in central Utah about 200 miles south of Salt Lake City, was formed in 1856, nine years after the first pioneer settlers arrived in what is not the state of Utah and just six years after Utah was organized as a Territory of the United States. In
No partys counsel authored the brief in whole or in part, and no one other than the amici curiae, or their counsel contributed money that was intended to fund preparing or submitting the brief.
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This brief is filed with consent of all parties; thus no motion for leave to file is required. See Fed. R. App. P. 29(a).
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2004, over 76% of the voters in Beaver county voted for Amendment 3 defining marriage as the union of man and woman. Amicus Box Elder County, an agricultural region in northern Utah about 65 miles north of Salt Lake City, was formed in 1856, just nine years after the first pioneer settlers in what is now the state of Utah. It is the fourth largest county in the state and has a unique and varied landscape. Amicus Cache County, organized in 1857, and located about 85 miles north of Salt Lake City, has approximately 180,000 residents, is home to Utah State University, and a diverse economy including a large agricultural sector. Amicus Emery County, an agricultural and mining area located in east central Utah, was formed in 1880. In 2004, the voters of Emery County overwhelmingly supported the passage of Amendment 3 by a vote of 3483 (yes) to 1039 (no). Amicus Garfield County, founded in 1882, is an agricultural region located in southern Utah about 250 miles south of Salt Lake City. In 2004, the citizens of Garfield County overwhelmingly approved passage of Utahs Amendment 3 with 77% of the voters in the county voting for it. Amicus Iron County, an agricultural and mining region located in southern Utah, has a broadly balanced economy with government, wholesale and retail trade, services, light manufacturing and construction. Cedar Breaks
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national Monument, Iron Mission State Historic Park, Southern Utah University and Shakespearean Festival are in Iron County. Amicus Kane County is located in south central Utah on the border of Arizona. Such natural wonders as the Grand Staircase-Escalante national Monument, Glen Canyon National Recreation Area, and parts of Bryce Canyon National Park and Zion National park are within the county. Amicus Millard County is an agricultural regional located in central Utah about 120 miles southwest of Salt Lake City in the geographical center of the state. It was first settled by pioneers in 1851 and the county was created that same year. Amicus Morgan County, an agricultural region located in northern Utah about 70 miles north of Salt Lake City, was formed in 1862 just fifteen years after the first pioneer settlers arrived in what is now the state of Utah and just two years after Utah was organized as a Territory of the United States. Amicus Sanpete County, one of the original six counties, is an agricultural region located in central Utah about 100 miles south of Salt Lake City. Sanpete County was formed in 1850, three years after the first pioneer settlers arrived in what is now the State of Utah. In 2004, 79% of the voters of Sanpete County approved Amendment Three.
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Amicus Sevier County is an agricultural and mining region located in central Utah. Settle by pioneers in the 1800s, Sevier County was officially formed in 1865. In 2004, 79.91 % of the voters in Sevier County voted for Amendment 3 defining marriage as the union of man and woman. Amicus Uintah County is a rural region located in north eastern Utah about 175 miles east of Salt Lake City. In 2004 the citizens of Uintah County overwhelmingly approved the passage of Utahs Amendment 3 by a vote of 7,337 (77%) in favor of Amendment 3 and 2,135 (23%) against. Amicus Utah County located 30 minutes south of Salt Lake City, was established in 1850 and currently has a population of 550,000 residents. Home to myriad industries and high-tech companies and two major universities, the Provo-Orem area of Utah county was named in 2014 as the #2 Best Place for Business and Careers in the United States by Forbes magazine. Amicus Wasatch County is a mountainous region located in northeast Utah about 50 miles southeast of Salt Lake City. It was formed in 1862 and included all of the Uinta Basin up until 1914 when the boundary was changed to the current area. It is home to several world-class winter sports venues. Amicus Washington County was founded on March 13, 1852 by an act of the territorial legislature. Located in the southwest corner of the state, Washington County was settled by pioneers sent by Brigham Young and it is
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known for its dramatically beautiful desert terrain, including Zion National Park, Red Cliffs National Conservation Area, and eighteen (18) federal wilderness areas. In 2004 over 78% of the voters in Washington county voted for Amendment Three defining marriage as the union of a man and a woman. The interest in this case of these Amici counties is to voice the view of their counties that protection of marriage as the union of a man and a woman is important, and that the laws of the State of Utah so defining marriage are basic civil rights laws protecting the core social institution of society and the values upon which our constitutional government and liberties rest. The Amici believe the lower courts decision in Kitchen v. Herbert, Case No. 2:13-cv-217 (D.D. Utah, December 20, 2013) erroneously and unconstitutionally invalidated Utahs dual-gender marriage laws and imposed same-sex marriage upon the people of the State and upon the Counties. All parties have consented to the filing of this brief. This brief does not necessarily reflect the views of the J. Reuben Clark Law School, Brigham Young University or its sponsoring organization. Respectfully submitted this 10th day of February, 2014.
s/ Lynn D. Wardle . Counsel of Record for Amici Utah Counties
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SUMMARY OF ARGUMENT
The District Court violated constitutional federalism when it invalidated Utahs constitutional and statutory law permitting only male-females couples to marry and mandated that Utah allow same-sex marriage. The Constitution of the United States reserved the full authority to regulate domestic relations, including marriage, to the states. Regulation of family law is not a power delegated by our Constitution to the federal government. Federalism preserves state supremacy in family law, requiring federal courts, agencies and officials to respect and defer to state marriage laws. Constitutional limitations applicable to family laws do not impair Utahs requirement that marriage is a genderintegrating institution, and that only male-female marriages may marry. The gender-integration requirement for marriage in Utah is closely bound to the institutions core purposes including increasing the likelihood children will be born to and raised by both mother and father. Gender-integrating marriage provides the best setting for responsible sexual relations, procreation, child-birth, optimal child-rearing and families. The social impact of the District Court decision mandating legalization of same-sex marriage in Utah is radical. Two-thirds of all states and 92% of all nations today reject same-sex marriage. Within the past fifteen years, voters in thirty-one states have adopted amendments to their state constitutions barring same-sex marriage; while same-6-
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sex marriage has become is legal (often by judicial fiat), only in the past decade and currently in only sixteen states.3 To so redefine marriage to authorize same-sex marriages would profoundly alter the meaning of the institution which the Supreme Court long has protected. The lower court in this case misapplied Loving v. Virginia, 367 U.S. 1 (1967). In Loving, the question of who may marry whom was answered by reference to the race of the parties to the relationship. Race is irrelevant to the purposes of marriage. Gender is not. Defining marriage as gender-integrating relationship promotes the purposes of marriage related to responsible sex and procreation, safest child-bearing, and optimal child-rearing. Imposing on marriage a new definition that rejects the majority and historic view of marriage as the union of a man and a woman would be quite different from Lovings having refused to allow the imposition of a minority racist view of marriage by a group that had captures marriage. Thus, it is not surprising that just five years after the Supreme Court in Loving unanimously held that anti-miscegenation laws violated the fundamental right to marry and violated Equal Protection, the Court in Baker v. Nelson, 409 U.S. 810 (1972), unanimously and summarily rejected the claim that the
See Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (15 January 2014), available at http://www.law2.byu.edu/site/marriage-family/home (seen 7 February 2014).
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gender-integrating definition of marriage violated that right. Baker has the effect of a ruling on the merits and Baker has never been overturned or disavowed by the Supreme Court, despite had numerous opportunities to do so, most recently in United States v. Windsor. Baker requires reversal of the Order of the District Court.
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ARGUMENT I. THE DISTRICT COURT ERRONEOUSLY VIOLATED FEDERALISM PRINCIPLES AND PRECEDENTS (INCLUDING WINDSOR V UNITED STATES, 133 S.CT. 2675 (2013)) CONFIRMING THAT MARRIAGE IS A MATTER FOR THE STATES TO REGULATE AND REQUIRING FEDERAL RESPECT AND DEFERENCE. Utah law has always defined legal marriage as a gender-integrating union. See Utah Code Annot. 30-1-2. When proposals to legalize same-sex marriage became a matter of widespread public debate, the people of Utah, in 2004, voted nearly 2:1 to incorporate the dual-gender definition of marriage into the State Constitution. Ballotpedia, infra, Part III . Utah Constitution, art. I, 29 (1) provides that: Marriage consists only of the legal union between a man and a woman. In December 2013, the court below brushed federalism aside with a conclusory platitude: But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. Kitchen v. Herbert, Memorandum Decision and Order, Case No. 2:13cv-217 (Dec. 20, 2013), at 1 (emphasis added). Then, violating core federalism principles and precedents, the court invalidated Utah marriage law and mandated that Utah permit same-sex marriage, id. at 53. Federalism in family law including federal deference to state regulation of marriage -- is a constitutional principle that is as old and as settled as our
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nation. See generally Lynn D. Wardle, Tyranny, Federalism and the Federal Marriage Amendment, 17 YALE J.L. & FEMINISM 221, 22649 (2005); Anne C. Dailey, Families and Federalism, 143 U. PA. L. REV. 1787, 1789 (1995) (both reviewing the history of federalism in family law). Federal respect for state prerogatives in marriage law is constitutionally required because the direct regulation of domestic relations under the U.S. Constitution was reserved to the control and authority of the states. In Pennoyer v. Neff, 95 U.S. 714, 734 (1878), the Supreme Court emphasized: The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created . . . . A century later, the Court reiterated in Sosna v. Iowa, 419 U.S. 393 (1975): Regulation of domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States. Id. at 404; see also Lehman v. Lycoming Cnty. Childrens Servs. Agency, 458 U.S. 502, 512 (1982) ([F]ederal courts consistently have shown special solicitude for state interests in the field of family and family-property arrangements.); Moore v. Sims, 442 U.S. 415 (1979) (Family relations are a traditional area of state concern. . . . We are unwilling to conclude that state processes are unequal to the task of accommodating the various interests and deciding the constitutional questions that may arise . . . ); Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858)
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(We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . . .). The Supreme Court justices have continued to unite around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority. Daily, 143 U. PA. L. REV. at 1789. They all have invoked the regulation of marriage, divorce, and child custody as a paradigmatic example of lawmaking power beyond the constitutional competence of the federal government. Id. Eight months ago, in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013) the Courts opinion (written by Justice Kennedy) soundly reconfirmed federalism in family law regarding state regulation of marriage. In ruling that Congress lacked the constitutional authority to refuse to recognize in federal law (same-sex) marriages that some states had chosen to create, the Court quoted its declaration of In re Burrus, 136 U.S. 586, 593-594 (1890) that: The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. 133 S.Ct. at 2691. The Windsor Court reiterated that: [T]he 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.
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citing Haddock v. Haddock, 201 U.S. 562, 575 (1906). Windsor emphasized 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. 133 S.Ct. at 2689-90. The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. Id. at 2691. The Court added: 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 (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. 133 S.Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)). Justice Kennedy, the author of the Court opinion in Windsor, long has been a federalism hawk. He noted: In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. Alden v. Maine., 527 U.S. 706, 759 (U.S. 1999). Four years later he explained: A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction. Id., at 569. He declared that federalism is central to
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the American experience and remain[s] essential to our present-day selfdefinition and national identity. Roper v. Simmons, 543 U.S. 551, 578 (U.S. 2005). Just two years ago he emphasized that: The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right. Bond v. United States, 131 S. Ct. 2355, 2364 (U.S. 2011). See also United States Term Limits v. Thornton, 514 U.S. 779, 838 (U.S. 1995) (Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.) Justice Kennedy has long insisted that: Preserving our federal system is a legitimate end in itself. It is, too, the means to other ends. It ensures that essential choices can be made by a government more proximate to the people than the vast apparatus of federal power. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 684-685 (U.S. 1999) (Kennedy, J., dissenting). See also United States v. Lopez, 514 U.S. 549, 575-578 (U.S. 1995) (Kennedy, J., concurring, quoting Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991): "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one
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branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . . In the tension between federal and state power lies the promise of liberty.") . . .). Behind federalism are at least seven strong constitutional values. They include: (a) a desire to preserve pluralism, (b) belief that laws regulating families should reflect local values, (c) suspicion of concentration of power, (d) commitment to principles of comity and shared sovereignty, (e) respect for the family law expertise of state courts and lawmakers, (f) federal judges dislike for family disputes, and (g) the belief that federal government should focus on other more direct and immediate national economic and security concerns. Thus, federalism commands respect for the primary authority of the states to regulate marriage. See Jonathan H. Adler, Interstate Competition and the Race to the Top, 35 HARV. J.L. & PUB. POLY 89, 89 (2012). Federalism in family law was intended to check the emergence of national tyranny over family life. Lynn D. Wardle, Tyranny, supra, at 223 . Thus, in Federalist No. 45, James Madison explained: The powers delegated by the proposed constitution to the federal government are few and defined. Those that remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the
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ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. THE FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Rossiter ed. 1961) (emphasis added). This description of state authority undeniably encompasses the regulation of domestic relations. Family law was constitutionally to remain subject to state, not national, regulation. Of course, if federalism requires federal authorities and agencies to respect state policies that permit same-sex marriages, Windsor, supra, by the same token it also requires federal authorities and branches to respect and defer to state laws and policies that do not permit same-sex marriages. The Tenth Amendment of the Constitution (reserv[ing] to the States all powers not delegated to the Unites States by the Constitution) also forbids federal courts to commandeer the state legislative process by compelling states to legalize same-sex marriage. The U.S. Court of Appeals for the Tenth Circuit has been dedicated to respecting the principle of federalism in family law. As this court noted in United States v. Bigford, 365 F.3d 859, 869-870 (10th Cir. 2004): There is a strong common law presumption that the federal government should not become involved in determinations of
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substantive issues of family law. See Moore v. Sims, 442 U.S. 415, 435, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979) ("Family relations are a traditional area of state concern."); Morrow v. Winslow, 94 F.3d 1386, 1397 (10th Cir. 1996) (quoting Moore, 442 U.S. at 435); Dubroff v. Dubroff, 833 F.2d 557, 561 (5th Cir. 1987) ("There is perhaps no state administrative scheme in which federal court intrusions are less appropriate than domestic relations law."). See also Morrow v. Winslow, 94 F.3d 1386, 1395-1396 (10th Cir. 1996). There is no area of government more properly subject to state regulation and less justifiably or legitimately subject to regulation by federal officials than the regulation of marriage. See generally Wardle, Tyranny, supra at passim; Dailey, Families, supra, 143 U. PA. L. REV. at 1871-72 (1995). Because family law necessarily reflects profoundly delicate community norms and values, marriage regulations constitutionally must be made at the state level: [T]he law of domestic relations necessarily promotes a shared moral vision of the good family life. Although in law, as elsewhere, we are accustomed to thinking of the family as a private realm free from governmental influence and control, the domestic sphere is deeply patterned by state laws regulating the formation, maintenance, dissolution, and boundaries of family life. Legal
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regulation of the family forms domestic roles, directs intimate relationships, and consequently shapes human identity in profoundly normative ways. Legal decision-makers confront fundamental questions concerning the meaning of parenthood, the best custodial placements for children, the rights and obligations of marriage, the financial terms of divorce, and the standards governing foster care and adoption. In answering such questions, state legislatures and courts draw upon community values and norms on the meaning of the good life for families and children. Id. at 1790. The variety of marriage laws in different states is just one of many examples of the consequences of constitutional decentralization and federalism in family law. As Justice Brandeis put it over 80 years ago: It is one of the happy incidents of the federal system that a single courageous State may, if its citizen choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country. New State Ice Co v Liebmann, 285 US 262, 311 (1932) (Brandeis dissenting). Because some states have chosen to experiment with legalization of same-sex marriage does not mean that other states (like Utah) are constitutionally compelled to join in that experiment. Our federalism encourages diversity, allowing some states to
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experiment with new forms of marriage, while protecting other states that chose instead to strengthen and preserve traditional marriage. Thus, the ruling of the District Court below invalidating a core element of Utah marriage law and requiring that Utah allow same-sex marriage violated core federalism principles, and was ultra vires in the extreme.
II. THE DISTRICT COURT ERRONEOUSLY DISCOUNTED THE IMPORTANCE TO THE STATE OF THE GENDER-INTEGRATING DEFINITION OF MARRIAGE TO PROMOTE THE CORE PURPOSE OF MARRIAGE OF INCREASING THE LIKELIHOOD THAT CHILDREN WILL BE BORN TO AND RAISED BY BOTH THEIR MOTHER AND THEIR FATHER IN A STABLE, ENDURING FAMILY UNIT. Utahs definition of marriage as the union of man and woman is essential to the core purposes of marriage. Efforts to redefine marriage as something other than an institution rooted in the biological complementarity of the sexes divorce the institution from the rationale that led the Court to hold that it was fundamental. John C. Eastman, Decoding the Constitutional Challenges to Traditional Marriage, 14 Engage 4 (Feb. 2013). Because men and women differ in significant ways relevant to the social purposes of marriage,4, the integration of their complementary differences in marriage creates a unique relationship of unique value to society. Sexually
George W. Dent, Jr., Straight Is Better: Why Law and Society May Legitimately Prefer Heterosexuality, 15 TEX. REV. L. & POLITICS 359 (2010) (discussing gender differences).
4
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complementary marriage furthers social functions that are essential to the welfare of the family, the state, and its citizens, especially children.5 Three of the important public purposes of marriageto protect and promote the social interests in safe sex, responsible procreation, and optimal child rearing are closely linked in our laws and social policies, just as they are closely linked by human naturethe ties of nature as Blackstone put it.6 Human nature, however, is imperfect, which is why society attempts to reinforce them through marriage law. The Supreme Court and clearly links marriage with gender-integration, and especially to societys interest in the institution that fosters responsible sexuality, procreation, and child rearing. Marriage provides the optimal environment for sexual relations, procreation, childbirth and child-rearing. Indeed, in all of the Supreme Court decisions about constitutional marriage, the right to marry is directly linked with responsible procreation and child A. Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal Development, in WHATS THE HARM? 3, 5-9 (Lynn D. Wardle ed. 2008) (research shows that mothers and fathers have different, complementary parenting skills, each contributing in different ways to healthy child development). See Kristin Anderson Moore, Susan M. Jekielek & Carol Emig, Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It? 6 Child Trends Research Brief (June, 2002) (the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage). 6 I WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *458. See also In re G Children (FC) [2006] UKHL 43 at 33-35 (discussing benefits of genetic and gestational parenthood).
5
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rearing.7 See Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, concurring) (The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.); Loving, 388 U.S. at 12 (Marriage is . . . fundamental to our very existence and survival.); Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society.); id. at 389-90 (Black, J., dissenting) (The institution of marriage is of peculiar importance to the people of the States. It is within the States that they live and vote and rear their children. . . .); Roe v. Wade, 410 U.S. 113, 152-53 (1973) (the constitutional right of privacy has some extension to activities relating to marriage . . . [i.e.,] procreation, . . . contraception, child rearing . . . .); Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. . . . Lynn D. Wardle, Loving v. Virginia and The Constitutional Right to Marry, 1790-1990, 41 HOW. L. J. 289, 338 (1998).
7
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Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection.); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the liberty protected by the Fourteenth Amendment includes the right of the individual . . . to marry, establish a home and bring up children . . . . (emphasis added)); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (Marriage and procreation are fundamental to the very existence and survival of the race); Maynard v. Hill, 125 U.S. 190, 205. 209-210 (1880) (Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution . . . . and it is the foundation of the family and of society, without which there would be neither civilization nor progress.). The social impact of legalizing same-sex marriage upon the well-being of children is controversial. Accordingly, that issue, especially, should be discussed by all and decided by the representatives of the people, not dictated by the courts. Conferring the status of marriage on same-sex couples will send a clear social and legal message further disconnecting marriage from procreation and child-rearing. Gender-integrating marriage promotes childbirth and thus the perpetuation of the species. This is a matter of special concern at present, since few developed nations in the world today have replacement birthrates. In
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Europe, a demographic winter is looming, which British historian Niall Ferguson calls the greatest sustained reduction in European population since the Black Death of the 14th Century.8 Preventing that disaster from occurring here is a compelling concern of State lawmakers. Marriage between mother and father strengthens the bond of parents to their offspring. Same-sex marriage puts in jeopardy the rights of children to know and experience their genetic heritage in their lives and withdraws societys recognition of its importance to them, their wider family, and society itself.9 Gender-integrating marriage enhances the belonging in marriage which benefits not only the married couple but their children.10 As the family goes, so goes the nation, and so goes the world in which we live., Pope John Paul II quoted in My Catholic Family at http://www.my-catholicfamily.com/280/pope-john-paul-ii-as-the-family-goes-so-goes-the-nation/ (seen 10 February 2014).
Niall Ferguson, Eurabia?, N.Y. Times Magazine, April 4, 2004, available at http://www.nytimes.com/2004/04/04/magazine/04WWLN.html (seen February 10, 2014); see also EUROPEAN BIRTH RATES REACH HISTORIC LOW IN PART BECAUSE OF RECENT FALL IN EASTERN EUROPE, Sept. 8, 2006, 1, available at http://www. medicalnewstoday.com/releases/ 51329.php (seen 7 February 2014). 9 Dent, supra at p. 11 (quoting Professor Margaret Somerville). 10 Lynn D. Wardle, The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage, 25 B.Y.U. J. Pub. L. 287, 289-90 (2011).
8
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III. THE DISTRICT COURT ERRONEOUSLY DISTORTED LOVING V. VIRGINIA, 367 U.S. 1 (1967) AS A KEY PURPOSE OF LOVING WAS TO LIBERATE MARRIAGE FROM CAPTURE BY PERSONS SEEKING TO REDEFINE MARRIAGE TO ADVANCE POLICIES EXTRANEOUS TO MARRIAGE The December 20, 2013 Memorandum Decision and Order of District Court below relied heavily upon Loving v Virginia, 367 U.S. 1 (1967) wherein the Supreme Court held that Virginias anti-miscegenation law was unconstitutional. The court cited Loving a total of fifteen times (Kitchen, slip op. at pp. 13, 20, 21, 23, 28, 35, 43 & 51). The district court opinion claims the support of Loving for both its conclusion that the right to same-sex marriage is a part of the fundamental right to marry (See Kitchen, supra, at pp. 13, 20, 21, 23, and 28), and also for its conclusion that Utahs failure to permit same-sex marriage violates Equal Protection (Id. at pp. 35, 43, and 51). The amici Counties agree that Loving is relevant; indeed controlling. But the court misinterpreted Loving. Loving supports Utahs marriage law. Under any standard of Equal Protection scrutiny, Utahs law defining marriage as a male-female union is well-justified by compelling state interests. See supra, Parts II. The very facts of Loving underscore the connection of marriage to procreation and child rearing. Richard and Mildred Loving had three children; yet Richard could only visit his wife and act as a parent to his and Mildreds
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biological children in Virginia under cover of darkness because of Virginias anti-miscegenation law.11 The Lovings challenged the Virginia antimiscegenation law in no small part for the sake of their family.12 The claim that racially segregated marriage is comparable to sexually integrated marriage of a man and a woman is false. Wardle & Oliphant, supra; see also Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 J. CONTEMP. HEALTH L. & POLY 1 (1996); Robert A. Destro Introduction, 1998 Symposium: Law and the Politics of Marriage: Loving v. Virginia After 30 Years, 47 CATH. U. L. REV. 1207, 1220 (1998). Miscegenation laws resulted from the capture of marriage by racists committed to fostering through marriage law the philosophy of White superiority. The Supreme Court rejected that misuse of marriage in Loving. Ironically, the plaintiffs attempt to legalize same-sex marriage, is just the latest example of an illegitimate attempt to capture marriage for the purpose of promoting another philosophy and policy extraneous to the purposes of marriage.
Robert A. Pratt, Crossing the Color Line: A Historical Assessment and Personal Narrative of Loving v. Virginia, 41 HOW. L.J. 229, 229-30 (1998). 12 Mildred Loving said: I wanted my children to grow up in the country [in Virginia, rather than D.C.], where they could run and play, and where I wouldnt worry about them so much. Id. at 237.
11
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Voters in thirty-one of the thirty-four States where the question of legalizing same-sex marriage has been put to the citizens have unequivocally rejected same-sex marriage and emphatically affirmed that marriage is exclusively the union of a man and a woman.13 That is comparable to the trend of states adopting laws repudiating anti-miscegenation and allowing inter-racial marriage in the two decades before Loving. Unlike the universal and ubiquitous opposite-sex requirement for marriage, racial restrictions on marriage never were a universal, defining feature of marriage. Interracial marriage was legal at common law, and in six of the thirteen original StatesConnecticut, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Islandat the time the U.S. Constitution was adopted. Five of these original States (all but Rhode Island), plus the next one to join the Union (Vermont, in 1791), never enacted anti-miscegenation laws. Lynn D. Wardle & Lincoln C. Oliphant, In Praise of Loving: Reflections on the Loving Analogy for Same-Sex Marriage, 51 HOW. L. J. 1117 (2007).
Lynn D. Wardle, Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, 12 J. L. & FAM. STUDS. 315, 367 (2010) (App. II) (listing 30 states where voters approved marriage amendments). North Carolina, also adopted a state marriage amendment in May of 2012. See generally Lynn D. Wardle, Involuntary Imports: supra note 4, at 825 (App). The data here excludes Utah and Oklahoma where judicial orders mandating same-sex marriage are stayed and on appeal.
13
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By the time Loving was decided in 1967, such laws remained in only sixteen states (in a single region of the country). See 388 U.S. 1, 6 n. 5 (1967). Fourteen States repealed their anti-miscegenation laws in the few years before Loving. Today, citizens in thirteen of those States have adopted constitutional amendments to protect man-woman marriage, most of them with both statutes and constitutional amendments.14 The vote of Utahans in 2004 for Amendment 3 defining marriage as the union of a man and a woman was over 65%. Utah Same-Sex Marriage Ban, Amendment 3 (2004), available at http://ballotpedia.org/Utah_SameSex_Marriage_Ban,_Amendment_3_%282004%29 (seen 7 February 2014) (herein Ballotpedia).15 Of the twenty-eight States voting blue (for Obama)
Arizona (statute 1996; constitutional amendment 1998); California (superstatute, enacted by the people in 2000: Only marriage between a man and a woman is valid or recognized in California), and CALIF. CONST. art. I. 7.5 (aka Prop 8) invalidated in Holllingsworth v. Perry, 570 U.S. __ (2013).; Colorado (statute 2000; amendment 2006); Idaho (statute 1996; amendment 2006); Indiana (statute 1997); Montana (statute 1997; amendment 2004); Nebraska (constitutional amendment 2000); Nevada (constitutional amendment 2000); North Dakota (statute 1997; amendment 2004); Oregon (constitutional amendment 2004); South Dakota (statute 1996; amendment 2006); Utah (statute 1995; amendment 2004); and Wyoming (statute 1957). 15 Alliance Alert, Marriage Amendment Vote Percentages: State by State, available at http://www.alliancealert.org/2011/08/24/marriage-amendmentvote-percentages-state-by-state/ (last seen February 7, 2014) (showing over 66% vote in favor as of November 2011). Compare Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 951, 993 (App. I) (2010) (showing about 63%).
14
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in the 2008 presidential election, twenty-three States protected male-female marriage at that time. The anti-miscegenation laws invalidated in Loving are profoundly different from the dual-gender marriage law of Utah. The former segregated races for purposes wholly irrelevant to marriage; the later integrate genders to protect the core social purposes of marriage, protecting children and their biological families. Race is not the same as same-sex attraction or gender identity. As General Colin Powell, Chairman of the Joint Chiefs of Staff, explained in testimony to Congress concerning gays in the military: Skin color is a benign, non-behavioral characteristic; sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.16 Race of the parties to be married has nothing to do with the legitimate public purposes of and social interests in marriage. Integration of the genders of the parties to be married has everything to do with those public interests in marriage. 139 CONG. REC. 13, 520 (1993) (statement of Senator Baucus, quoting Colin Powell, Chairman, Joint Chiefs of Staff). Secretary Powell now has no problem with same-sex marriage. Laura E. Davis, Colin Powell Expresses Support for Gay Marriage, available at http://abcnews.go.com/Politics/OTUS/ colin-powell-expresses-support-gay-marriage/story?id=16416112 (seen February 10, 2014).
16
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The pattern of citizen rejection of same-sex marriage exists globally as well as in the United States. Only sixteen (at most, more narrowly fourteen) of 193 sovereign nations permit same-sex marriage. 17 eleven nations have created marriage-equivalent civil unions for same-sex couples; while nearly twice as many nations (at least 47) have constitutional provisions that appear to define marriage as the union of a man and a woman.18 Dual-gender marriage laws of Utah both ubiquitous and unique, ancient and modern. IV. THE DISTRICT COURT ERRONEOUSLY DISREGARDED THE BINDING PRECEDENT OF BAKER V. NELSON, 409 U.S. 810 (1972), IN WHICH, JUST FIVE YEARS AFTER DECIDING LOVING THE COURT REJECTED THE CLAIM THAT STATE LAW ALLOWING ONLY DUAL-GENDER MARRIAGE VIOLATED LOVING AND THE CONSTITUTION The Supreme Court of the United States unanimously dismissed constitutional claims for same-sex marriage in the 1972 case of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), app. dismissed, for want of a substantial
17
Wardle, Legal Status, supra note 3. If South African Civil Unions are deemed marriages and the Brazil National Council of Justices advisory ruling has legal effect to mandate it there are 16 nations. Also, same-sex marriage has been approved by parliament and probably will become legal in the U.K. in 2014.
18
See Lynn D. Wardle, Involuntary Imports: supra note 4, at 825 (App). See further Cheryl Wetzstein, Maryland, Maine back gay marriage in breakthrough votes, Wash. Times, Nov. 6, 2012, available at http://www.washingtontimes .com/news/2012/nov/6/gay-marriage-backers-seek-breakthrough-four-states/ (seen January 11, 2012).
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federal question, 409 U.S. 810 (1972). In Baker two Minnesota men had filed suit in Minnesota state court claiming that Minnesotas marriage law allowing only male-female couples to marry, violated both Equal Protection and Due Process. The Minnesota Supreme Court thoroughly considered and decisively rejected both constitutional claims. Rejecting the due process (right to samesex marriage) claims, the state court justices, d[id] not find support . . . in any decisions of the United States Supreme Court. Rather, [t] he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation. Id. at 312-313. Likewise, rejecting the Equal Protection claim for same-sex marriage, Baker noted: There is no irrational or invidious discrimination. Loving was distinguished because, in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Id. at 313-315. When the men appealed to the Supreme Court for mandatory
appeal review, the Court summarily dismissed the appeal for want of a substantial federal question. Baker, 409 U.S. 810, 810 (1972). That is binding precedent on the merits. Hicks v. Miranda, 422 U.S. 332 (1975); Mandel v.
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Bradley, 432 U.S. 173 (1977); Hopfmann v. Connolly, 471 U.S. 459, 460 (1985). The District Courts attempt to discard Baker as binding precedent, Kitchen, at 14-16, is transparently flawed. The central issues in the present case, as identified by the district court opinion, are identical to the issues in Baker. The issues addressed by district court below, whether due process guarantees to same-sex couples the right to marry, Kitchen, at 16-32; and whether excluding same-sex couples from marriage violates equal protection of the law, id. at 3352 are the same issues raised in Baker. No Supreme Court case has supplanted or modified Baker v. Nelson. That case remains conclusive on those constitutional claims to same-sex marriage. See, e.g., Gill v. Office of Personnel Management, 682 F. 3d 1 (1st Cir. 2012) (Baker is precedent binding on us and limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.); Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1084-88 (D. Hawaii, 2012) ( Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court); Sevcik v. Sandoval, 911 F.Supp.2d 996, 1002 (D. Nev. 2012) (Baker controls the present case, unless the specific
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challenge presented in this case was not decided by the Minnesota Supreme Court.). The court below erred in disregarding the rules of Baker and Hicks. Baker did not foreclose the issue whether federal agencies may decline to recognize same-sex marriages valid under state law. Windsor v. United States, 133 S.Ct 2675 (2013). So Windsor did not undermine or overrule Baker.
CONCLUSION: THE PRECEDENTS COMPEL REVERSAL Wherefore, these amici Utah Counties respectfully submit that the decision of the United States District Court for the District of Utah below invalidating provisions of the marriage laws of the State of Utah is fundamentally inconsistent with the Constitution and precedents of this court and of the United States Supreme Court. This court should reverse the district court. Respectfully submitted this 10th day of February, 2014.
s/ Lynn D. Wardle . Counsel of Record for Amici Sixteen Utah Counties
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STATEMENT OF RELATED CASE There is a related appeal pending in this court, Bishop v. Smith, Tenth Cir. No. 13-5003 and No. 13-4178, which arises out of a federal district court in Oklahoma. Dated: February 10, 2014 s/ Lynn D. Wardle . Counsel of Record for Amici Sixteen Utah Counties
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FORM 6.
CERTIFICATE OF COMPLIANCE WITH RULE 32(A) TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
1.
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: x this brief contains **_____ words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains _______ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: x this brief has been prepared in a proportionally spaced typeface using the Microsoft Word word processing program and the Times New Roman 14 point font, or this brief has been prepared in a monospaced spaced typeface using (state name and version of word processing program) __________________ with (state number of characters per inch and name of type style) ________________________.
Signature: Attorney for: Date:
s/ Lynn D. Wardle Amici Curiae Juab County, et al. February 10, 2014
s/ Lynn D. Wardle . Counsel of Record for Amici Sixteen Utah Counties

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CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that:
(1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec Endpoint Protection, version 12.1.3001.165, dated/updated February 10, 2014, and according to the program are free of viruses. s/ Lynn D. Wardle____________________ Dated: 10 February 2014_____________
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CERTIFICATE OF SERVICE I hereby certify that on the 10th of February 2014, a true, correct and complete copy of the foregoing BRIEF OF AMICI CURIAE FIFTEEN UTAH COUNTIES SUPPORTING THE DEFENDANTS-APPELLANTS GARY R. HERBERT AND SEAN REYES IN FAVOR OF REVERSAL was filed with the Court and served on the following via the Courts ECF system: GENE SCHAERR Special Assistant Utah Attorney General P.O. Box 140856 160 East 300 South, sixth floor Salt Lake City, Utah 84114-0856 Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 gschaerr@utah.gov
tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com
dcodell@nclrights.org
rchamness@slco.org dgoddard@slco.org
s/ Lynn D. Wardle Counsel of Record for Amici Sixteen Utah Counties

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