Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 1

NOS. 13-4178, 14-5003 & 14-5006 IN THE UNITED STATES COURT OF APPEALS
FOR THE

TENTH CIRCUIT
DEREK KITCHEN, et al., Plaintiffs-Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et al., Defendants-Appellants. On Appeal from the United States District Court for the District of Utah D.C. No. 2:13-cv-00217-RJS The Honorable Robert J. Shelby

MARY BISHOP, et al., Plaintiffs-Appellees, and SUSAN G. BARTON, et al., Plaintiffs-Appellees/Cross-Appellants, v. SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant-Appellant/ Cross-Appellee.

On Appeal from the United States District Court for the Northern District of Oklahoma D.C. No. 4:04-CV-00848-TCK-TLW The Honorable Terence C. Kern

BRIEF OF DARCY W. STRAUB, POTE TIAL CO GRESSIO AL CA DIDATE, AS AMICUS CURIAE I PARTIAL SUPPORT OF DEFE DA TS-APPELLA TS A D REVERSAL DArcy Straub, Ph.D. Attorney at Law 6772 W. Ida Dr. #327 Littleton, CO 80123 303-794-4109 pro se

Docket Reference Number: [10148493]

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 2

TABLE OF CO TE TS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. The Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Tripartite Test of Lemon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. The Effect Prong of Lemon and the Endorsement or Disapproval of Religion or Particular Religious Beliefs . . . . 10 The Entanglement Prong of Lemon and Divisiveness . . . . . . 10

2. B. II. III. IV.

The Goals of the Establishment Clause . . . . . . . . . . . . . . . . . . . . . . 11

The Occurrence of the Terms Marriage and Marry in the Bible . . . . . 12 Marriage as a Single Religious and Governmental Institution . . . . . . . . . 13 The Emergence of Civil Unions for Same-Sex Couples . . . . . . . . . . . . . . 14 A. B. Civil Unions for Same-Sex Couples in Vermont . . . . . . . . . . . . . . . 14 Civil Unions for Same-Sex and Opposite-Sex Couples in Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V.

The Government Defining Marriage Violates the Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. The Governments Involvement in the Same-Sex Marriage Dispute Fails the Effect Prong of Lemon . . . . . . . . . . . . . . . . . . . . . 15 2

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 3

1.

The Difficulty of Detecting Government Acts That Have the Effect of Disapproving of Religion . . . . . . . . . . . . . . . . . 15 The Conduct of the Supreme Court Has the Effect of Conveying a Message of Disapproval of a Particular Religious Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.

B.

The Governments Involvement in Defining Marriage Entangles It With Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Government Efforts to Define Marriage Will Favor Some Religions and Disfavor Others in Violation of the Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C.

VI.

Reconciling the Tension Between the Establishment Clause and Plaintiffs Claims Under the Equal Protection and Due Process Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. B. The Destruction of Government and Degradation of Religion . . . . 21 The Equal Protection and Due Process Rights of Same-Sex Couples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VII. The Plaintiffs Lack Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 4

TABLE OF AUTHORITIES
CASES American Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th Cir. 2010) . . . . . 9, 10, 16 Baker v. State, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23 Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir.1997) . . . . . . . . . . . . . . 10, 16 Bowen v. Kendrick, 487 U.S. 589 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573 (1989) . . . . 10, 16 Engel v. Vitale, 370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 21, 22 Everson v. Bd. of Educ., 330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 20 Lee v. Weisman, 505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . 24 Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . 10, 12, 17-19, 21 Mueller v. Allen, 463 U.S. 388 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . . 24 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . 9 United States v. Windsor, 133 S. Ct. 2675 (2013) . . . . . . . . . . . . . . . . . . . . . 16-18 Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir.2008) . . . . . . . . . . . . . 9

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 5

U ITED STATES CO STITUTIO Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATE STATUTES Colo. Rev. Stat. 14-15-101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Colo. Rev. Stat. 14-15-104(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 23 Colo. Rev. Stat. 14-15-112(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Vt. Stat. Ann. tit 15, 1201 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Vt. Stat. Ann. tit 15, 1202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

BIBLE Bible (King James Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 Bible (New International Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 6

I TEREST OF THE AMICUS CURIAE

DArcy Straub1 is a potential congressional candidate. If elected to Congress, Straub would sponsor legislation that prohibits the state and federal governments from using the term marriage and its derivative forms to regulate the union of all couples. The state and federal governments can easily use such terms as civil union and united to legally provide the benefits and protections of a union to all couples. The issue of same-sex marriage has caused a significant amount of divisiveness in the country, and Straub believes the ultimate source of this tension comes from the government attempting to define a word that has biblical roots. The government, however, can no more define the biblical term marriage than it can sponsor prayer in public schools, place crosses along roadsides, promote Christmas as a religious holiday through a nativity scene, and so forth. Thus, the Establishment Clause forces what Straub desires to achieve legislatively the removal of government from a religious matter.

All parties have given their written consent for Straub to file this brief.

No counsel for a party authored this brief in whole or in part. No party or a partys counsel contributed money that was intended to fund preparing or submitting the brief. No person other than the amicus curiae contributed money to fund preparing or submitting it. 6

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 7

SUMMARY OF THE ARGUME T

Near the time of the formation of Jamestown in 1607, King James I authorized an English translation of the Bible, known as the King James Version, that was initially published in 1611. The translation of the Bible into the King James Version yielded the English words marriage and marry in reference to a union between two people. Although biblical references to marriage and marry may be subject to interpretation, no debate exists to the concept that interpretation of the Bible and religious beliefs are inextricably twined, and the two can never part. The Establishment Clause of the U.S. Constitution figuratively provides a a wall of separation between Church and State. Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). Until recent times, marriage has peacefully coexisted as a religious and governmental institution since the adoption and ratification of the U.S. Constitution in the 18th century. Times change, however, and what was once constitutional is no longer the case. Current efforts by the federal and state governments to define marriage based upon gender implicate religious beliefs, and consequently such efforts by any court, legislature, or executive cannot be undertaken without becoming entangled in a divisive religious issue and advancing one religious belief over another. 7

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 8

In contemporary times, several states have enacted legislation that creates civil unions for same-sex couples that legally provide the benefits and protections of an opposite-sex marriage. The employment of the term civil union and accompanying legislative framework now represents the necessary path the federal and state governments must take to govern the unions of all couples, regardless of sexual orientation. Use of the biblical terms marriage or marry is unnecessary to confer the legal benefits and protections of unions to all couples, and any use of these biblical terms in federal or state law especially with respect to defining marriage in terms of gender violates the Establishment Clause. The same-sex couples on appeal claim a fundamental right to marriage, but in view of the Establishment Clause, the only fundamental right that exists for any couple is the right that enables all couples to enter into a state-sponsored civil union. The extension of a civil union into the realm of a marriage implicates interpretation of biblical terms and religious beliefs. Consequently, plaintiffs lack Article III standing no court can redress their grievance regarding marriage without violating the Establishment Clause. To satisfy their desire to be married, the plaintiffs possess the religious freedom to select a church that will perform a marriage ceremony for a same-sex couple. To the extent the plaintiffs wish to exert their rights to gain the legal benefits and protections of a civil union, the 8

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 9

court should afford the plaintiffs the opportunity to amend their complaint upon remand.

ARGUME T
I. The Establishment Clause A. The Tripartite Test of Lemon

The Establishment Clause provides that Congress shall make no law respecting an establishment of religion . . . U.S. Const. amend I. Through the Fourteenth Amendment, the Establishment Clause also applies to the legislative power of the States and their political subdivisions. American Atheists, Inc. v. Duncan, 616 F.3d 1145, 1156 (10th Cir. 2010) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000)); see also Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.2008). Courts evaluate potential violations of the Establishment Clause through the Lemon tripartite test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. American Atheists, 616 F.3d at 1156 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). If a state action violates any one of the three prongs of the Lemon test, the state action violates the Establishment 9

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 10

Clause and is unconstitutional. Id. 1. The Effect Prong of Lemon and the Endorsement or Disapproval of Religion or Particular Religious Beliefs

In evaluating a state action under the effect prong of Lemon, the court asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. Id. at 1157 (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)). The government impermissibly endorses religion if its conduct has . . . the effect of conveying a message that religion or a particular religious belief is favored or preferred. Bauchman ex. rel. Bauchman v. W. High Sch., 132 F.3d 542, 551 (10th Cir.1997) (quoting County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 592-93 (1989)). Alternatively, [t]he government [disapproves] of religion if its conduct has . . . the effect of conveying a message that religion or a particular religious belief is [not] favored or [not] preferred. See id. 2. The Entanglement Prong of Lemon and Divisiveness

The Lemon Court recognized [a] broader base of entanglement of yet a different character [that] is presented by [a] divisive political potential. Lemon, 403 U.S. at 622. Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of

10

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 11

government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Id. (citing Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969)). Political divisiveness within the Lemon test, however, must be regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools. Bowen v. Kendrick, 487 U.S. 589, 617 n.14 (1988) (quoting Mueller v. Allen, 463 U.S. 388, 404 n.11 (1983)). Nonetheless, divisiveness is a factor to be considered in an Establishment Clause analysis. In striking down a school-sanctioned prayer at a high school graduation ceremony, the Supreme Court noted the relevance of the potential for divisiveness. Lee v. Weisman, 505 U.S. 577, 588 (1992). In striking down school prayer in public schools, divisiveness was similarly noted: [t]he philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests. Engel v. Vitale, 370 U.S. 421, 443 (1962) (Douglas, J., concurring). B. The Goals of the Establishment Clause

The tripartite test of Lemon is consistent with the principles stated in the landmark case of Everson v. Board of Education. "Neither [a state nor the federal 11

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 12

government] can pass laws which aid one religion, aid all religions, or prefer one religion over another." Everson, 330 U.S. at 15. The legal framework of the Establishment Clause ensure[s] that the organs of government remain strictly separate and apart from religious affairs, for a union of government and religion tends to destroy government and degrade religion. Lynch, 465 U.S. at 698 (quoting Engel, 370 U.S. at 431) (Brennan, J., dissenting). II. The Occurrence of the Terms Marriage and Marry in the Bible English translations of the Bible predate the origin of our nation, with the initial publishing of the King James Version of the Bible occurring in 1611. The following passages from the King James Version2, which are presented in Early Modern English, contain or directly reference the words marriage or marry: I will therefore that the yonger women marry, beare children, guid the house, giue none occasion to the aduersary to speake reprochfully. 1 Timothy 5:14 (King James). And Iesus answering, said vnto them, The children of this world, marrie, and are giuen in marriage: Luke 20:34 (King James).

Available online at www.kingjamesbibleonline.org. 12

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 13

Neither shalt thou make marriages with them: thy daughter thou shalt not giue vnto his sonne, nor his daughter shalt thou take vnto thy sonne. Deuteronomy 7:3 (King James). For as in the dayes that were before the Flood, they were eating, and drinking, marrying, and giuing in mariage, vntill the day that Noe entred into the Arke, Matthew 24:38 (King James). For when they shall rise from the dead, they neither marry, nor are giuen in marriage: but are as the Angels which are in heauen. Mark 12:25 (King James). Although the context of some of the above passages infer that marriage is between a man and a woman, the religious perspective of marriage to assess the legitimacy of same-sex marriage for this appeal is not the point. Rather, the passages establish that marriage and marry occur within the Bible, and consequently government attempts to define marriage based upon gender implicate religious beliefs. III. Marriage as a Single Religious and Governmental Institution The Founding Fathers did not necessarily find the presence of religion within the government particularly troubling. In his Farewell Address, George Washington writes, Of all the dispositions and habits which lead to political

13

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 14

prosperity, religion and morality are indispensable supports. Given this initial attitude towards religion in political affairs by an esteemed Founding Father, the emergence of marriage as a single religious and governmental institution is not a surprising result no reason seemingly existed to separate the two. The emergence of the issue of gay rights in contemporary society marks the end of the compatibility of marriage as a religious institution and marriage as a governmental institution. The two can no longer exist as a single institution. IV. The Emergence of Civil Unions for Same-Sex Couples A. Civil Unions for Same-Sex Couples in Vermont

Civil unions arose in Vermont after the Vermont Supreme Court held in 1999 that same-sex couples were not entitled to a marriage license, but they were entitled to the same benefits and protections that the law affords married opposite-sex couples. Baker v. State, 744 A.2d 864, 886 (Vt. 1999). In response to the Vermont Supreme Court directive to create a legislative scheme that provides same-sex couples with the benefits and protections of an opposite-sex marriage, the Vermont Legislature employed the term civil union in the resulting statutory scheme. See Vt. Stat. Ann. tit 15, 1201 et seq. The statutory scheme requires that a civil union must be between two people of the same sex. Id. 1202.

14

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 15

B.

Civil Unions for Same-Sex and Opposite-Sex Couples in Colorado

In 2013 Colorado similarly created a statutory scheme to extend the benefits and protections of marriage laws to same-sex couples. See Colo. Rev. Stat. 1415-101 et seq. In contrast to the Vermont statutory scheme, civil unions are also available to opposite-sex couples as well. See id. 14-15-104(1)(a). Additionally, [a] priest, minister, rabbi, or other official of a religious institution or denomination or an Indian nation or tribe is not required to certify a civil union in violation of his or her right to the free exercise of religion guaranteed by the first amendment to the United States constitution . . . . Id. 14-15-112(4). V. The Government Defining Marriage Violates the Establishment Clause A. The Governments Involvement in the Same-Sex Marriage Dispute Fails the Effect Prong of Lemon 1. The Difficulty of Detecting Government Acts That Have the Effect of Disapproving of Religion

Despite the long-running dispute over same-sex marriages, the applicability of the Establishment Clause and Lemon seems to have gone largely undetected by the legal community. Perhaps this is a result of the effect prong of Lemon frequently involving the government endorsing religion and not disapproving of religion. It is easy to detect government activities that have the effect of communicating a message that endorses religion, such as the displaying of large 15

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 16

crosses along the roadsides in Utah. See American Atheists, 616 F.3d at 1150. A government action that communicates a message that disapproves of religion may be harder to detect because this message is partially consistent with the general principle that the church and state remain separate. Disapproval under the effect prong of Lemon exists if the government conduct has the effect of conveying a message that a particular religious belief is not preferred or not favored. Bauchman, 132 F.3d at 551 (quoting County of Allegheny, 492 U.S. at 592-93). When the government becomes involved in defining marriage, religious beliefs become relevant due to the occurrence of the words marriage and marry in the Bible. Thus, any position by the government that supports same-sex message has the potential effect of conveying to the public that a particular religious belief to the contrary is not preferred and not favored. 2. The Conduct of the Supreme Court Has the Effect of Conveying a Message of Disapproval of a Particular Religious Belief

In United States v. Windsor, which held 3 of the Defense of Marriage Act (DOMA) is unconstitutional, Justice Scalia made the following observation about comments made within the majority opinion: But the majority says that the supporters of this Act acted with malice with the "purpose" (ante, at 2695) "to disparage and to injure" same-sex couples. It says that the motivation for DOMA was to "demean," ibid.; to "impose inequality," ante, at 2694; to "impose . . . 16

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 17

a stigma," ante, at 2692; to deny people "equal dignity," ibid.; to brand gay people as "unworthy," ante, at 2694; and to "humiliat[e]" their children, ibid. United States v. Windsor, 133 S. Ct. 2675, 2708 (2013) (Scalia, J., dissenting). Justice Scalia further stated, It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race. Id. at 2709. The comments of the majority opinion that Justice Scalia summarizes are directed to those who support DOMA. These comments, however, are equally as applicable to religious institutions that do not support same-sex marriage. The majority opinion in Windsor has the effect of conveying a message of disapproval of religious institutions that do not support same-sex marriage, because these institutions serve to disparage and to injure, demean, deny people equal dignity, brand people as unworthy, and to humiliate their children. The majority opinion or conduct of the Supreme Court in Windsor has the effect of conveying the message that religious doctrines that do not support same-sex marriage are not preferred and not favored. See Lynch, 465 U.S. at 690. No doubt the Supreme Court did not intend to convey a message of disapproval about religious institutions or people of faith that do not embrace same-sex marriages, as the intent of the Supreme Court was to deliver an opinion 17

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 18

concerning DOMA. But Justice OConnor stated that intent in conveying the message is irrelevant: What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. Lynch, 465 U.S. at 692 (OConnor, J., concurring). Justice Scalia noted the majority opinion diminishes the status of supporters of DOMA, and similarly the majority opinion unwittingly diminishes the status of the people of faith who do not believe in same-sex marriages. In essence, the majority opinion serves to make these people of faith feel like outsiders. See id. at 688 (stating [disapproval] sends a message to [adherents] that they are outsiders, not full members of the political community) (OConnor, J., concurring). Justice Scalia stated, To hurl such accusations [at the supporters of DOMA] so casually demeans this institution. Windsor, 133 S. Ct. at 2708. But Justice Scalias assessment did not go far enough the accusations in the majority opinion effectively demean some people of faith and religious institutions.

18

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 19

B.

The Governments Involvement in Defining Marriage Entangles It With Religion

Political divisiveness along religious lines is evidence of excessive government entanglement with religion. Lemon, 403 U.S. at 622. However, holding a practice unconstitutional based only upon political divisiveness which is more than likely involved in the same-sex marriage dispute is simply too speculative an enterprise. Lynch, 465 U.S. at 689. Rather, the constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness itself. Id. The character of the governments efforts to define marriage based upon gender is this: people of faith and religious institutions are violated when the government uses a term in the Bible to enact laws that ultimately contradict their religious beliefs. The source of the deep divisiveness associated with the issue of same-sex marriage is the government entangling itself with a biblical term that implicates peoples religious beliefs. C. Government Efforts to Define Marriage Will Favor Some Religions and Disfavor Others in Violation of the Establishment Clause

As documented in the opening brief of Utah Governor Herbert, et al., at least five religions recognize same-sex marriages: the Episcopal Church, the Presbyterian Church (USA), the Evangelical Lutheran Church, Reform Judaism, 19

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 20

and the United Church of Christ. Opening Br. of Gary R. Herbert, et al. at 91 n.59. Thus, no matter how the government defines marriage, the government definition of marriage will be consistent with the views of some churches and inconsistent with others. Before the emergence of the Lemon tripartite test, a fundamental tenet of the Establishment Clause recognized that "[n]either [a state nor the federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another." Everson, 330 U.S. at 15. Given this tenet, the government will run afoul of the Establishment Clause whenever it attempts to define the union of a couple with the biblical term marriage. Even if a state or federal government maintains the traditional definition of marriage between a man and a woman, the government violates the Establishment Clause because this definition comes at the expense of churches that support same-sex marriages. Times change and with the emergence of same-sex unions as a societal, religious, and legal issue, the governments application of the term marriage to any couple is now unconstitutional.

20

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 21

VI.

Reconciling the Tension Between the Establishment Clause and Plaintiffs Claims Under the Equal Protection and Due Process Clauses A. The Destruction of Government and Degradation of Religion [A] union of government and religion tends to destroy government and

degrade religion. Lynch, 465 U.S. at 698 (quoting Engel, 370 U.S. at 431) (Brennan, J., dissenting). The issue of same-sex marriage now before the court has fulfilled this expectation. The issue of same-sex marriage has degraded religion, both in terms of secularists who attack people of faith and people who characterize themselves as Christian yet vehemently chastise homosexuals. The disputatious individuals who exhibit vile hatred towards homosexuals ultimately betray the Christian faith and the word of Jesus Christ A new command I give you: Love one another. As I have loved you, so you must love one another. By this everyone will know that you are my disciples, if you love one another. John 13:34-35 (New International Version). The issue of same-sex marriage has been destructive to the nations form of self-governance. The Constitution should readily afford equal rights to all its citizens, regardless of sexual orientation. But when a gay rights issue incorporates an element of religion, the battle lines readily appear for a war in which, as Justice

21

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 22

Brennan posited, much is lost. Marriage, based upon its biblical roots, is a religious institution. In view of the Establishment Clause, the government can no more decide the legitimacy of same-sex marriages than it can weigh in on an issue of importance between the Jewish and Christian faiths the resurrection of Jesus Christ. While many people are desirous of the government to break the tie on the issue of same-sex marriage, the Constitution forbids it to do so and the government must remain neutral. See Engel, 370 U.S. at 443 (stating a government neutral in the field of religion better serves all religious interests) (Douglas, J., concurring)). B. The Equal Protection and Due Process Rights of Same-Sex Couples

The issue of same-sex marriage entails equality same-sex couples desire its government to recognize them as equals to opposite-sex couples. The Establishment Clause prevents this equality to be gained by the government defining marriage to include same-sex couples. Consequently, equality can only be achieved before the government and under the Equal Protection and Due Process Clauses by limiting all couples to civil unions. Using the same rationale of any court that holds a same-sex couple has a fundamental right to marriage, such as the district court held in this case, all couples possess a fundamental right to be united under state laws that regulate 22

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 23

civil unions. A couple may extend their civil union to marriage and become married before a church, but conducting and participating in a marriage ceremony involves religious decisions left to the particular church and couple. Colorado law and the Vermont Supreme Court provide the workable legal framework to achieve equality for those who wish to be united as a same-sex couple. The Vermont Supreme Court held that a same-sex couple could not be married under the laws of Vermont, but instructed the Vermont legislature to create a statutory scheme that provides same-sex couples with the legal benefits and protections of an opposite-sex marriage. Baker, 744 A.2d at 886. The Establishment Clause now demands that no couple may be married under the laws of the state, but the Equal Protection and Due Process Clauses demand the federal and state governments create a statutory scheme that provides all couples with the legal benefits and protections of a civil union. Colorado law, which established that a couple may enter into a civil union regardless of sexual orientation, see Colo. Rev. Stat. 14-15-104(1)(a), serves as a starting point for such efforts. VII. The Plaintiffs Lack Standing Article III standing requires the plaintiffs to have suffered a concrete and particularized injury, that the injury be fairly traceable to the challenged action of the defendant, and that it is likely, as opposed to merely speculative, that the 23

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 24

injury will be redressed by a favorable decision. Petrella v. Brownback, 697 F.3d 1285, 1293-94 (10th Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)). The plaintiffs seek to be married and receive a state-sponsored marriage license, but the Establishment Clause prevents the state from conducting activities involving the biblical term marriage. Accordingly, the plaintiffs lack standing because a decision by this court cannot redress their desire to be married and receive a marriage license. To become married, the plaintiffs are free to exercise their religious freedom and find a church that will conduct a marriage ceremony for same-sex couples. To the extent the plaintiffs desire the legal benefits and protections of a civil union, the plaintiffs should be afforded the opportunity to assert their rights to a civil union and amend their complaint upon remand.

CO CLUSIO
The district court found the plaintiffs have a fundament right to marriage, but state-sponsored marriages violate the Establishment Clause. Thus, the

24

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 25

decision of the district court should be reversed. Respectfully submitted this 10th day of February, 2014. s/ DArcy W. Straub DArcy W. Straub Attorney at Law 6772 W. Ida Dr. No. 327 Littleton, CO 80123 303-794-4109 pro se

25

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 26

CERTIFICATE OF ECF COMPLIA CE A D PRIVACY REDACTIO S

I hereby certify that: 1) a copy of the foregoing brief, as submitted in digital form via the courts ECF system, is an exact copy of the written document filed with the Clerk; 2) the PDF file of this brief submitted through the courts CM/ECF system was scanned for viruses with AVG Anti-Virus Free Edition, Version 9.0.932, February 10, 2014, and, according to the program, is free of viruses; and 3) all required privacy redactions have been made.

Date: February 10, 2014 s/ DArcy Straub

26

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 27

CERTIFICATE OF COMPLIA CE WITH RULE 32(a)

I hereby certify that: 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5149 words according to the word count function of WordPerfect X3. To facilitate the ease of taking the word count in the document, the word count includes the parts of the brief that need not be counted pursuant to 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 this brief has been prepared in a proportionally spaced typeface using WordPerfect X3 in 14 point Times New Roman.

Date: February 10, 2014 s/ DArcy Straub

27

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 28

CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of February, 2014, I have provided service of the foregoing Brief of DArcy W. Straub, Potential Congressional Candidate, as Amicus Curiae in Partial Support of Defendants-Appellants and Reversal via the courts CM/ECF, which will send notification of the filing to the following parties: Case o. 13-4178: David C. Codell dcodell@nclrights.org Kathryn Kendell kkendell@nclrights.org James E. Magleby magleby@mgpclaw.com Shannon Price Minter SMinter@nclrights.org Jennifer Fraser Parrish parrish@mgpclaw.com Peggy Ann Tomsic tomsic@mgpclaw.com Attorneys for Plaintiffs-Appellees Ralph E. Chamness rchamness@slco.org Darcy Marie Goddard dgoddard@slco.org Attorneys for Defendant Swensen John J. Bursch jbursch@wnj.com Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov Gene C. Schaerr gschaerr@gmail.com Monte Neil Stewart stewart@stm-law.com Attorneys for Defendants-Appellants

28

Appellate Case: 13-4178

Document: 01019200531 01019200452

Date Filed: 02/10/2014

Page: 29

Case os. 14-5003 & 14-5006 Philip Craig Bailey craigbailey1@cox.net Don Gardner Holladay dholladay@holladaychilton.com Timothy P. Studebaker tim@studebakerworleylaw.net Joseph Thai thai@post.harvard.edu James Edward Warner, III jwarner@holladaychilton.com Attorneys for Plaintiffs-Appellees / Cross-Appellants

Byron Jeffords Babione bbabione@ alliancedefendingfreedom.org James Andrew Campbell jcampbell@ alliancedefendingfreedom.org Holly L. Carmichael hcarmichael@telladf.org John David Luton jluton@tulsacounty.org David Austin Robert Nimocks animocks@ alliancedefendingfreedom.org Brian W. Raum Braum@telladf.org Dale Michael Schowengerdt dschowengerdt@telladf.org Attorneys for Defendant-Appellant / Cross-Appellee

Kerry W. Kircher kerry.kircher@mail.house.gov Brently C. Olsson bolsson@helmsgreene.com Kevin H. Theriot ktheriot@telladf.org Attorneys for DefendantsIntervenors

W. Scott Simpson scott.simpson@usdoj.gov Attorney for Defendant

Date: February 10, 2014 29

s/ DArcy Straub