Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 1

No. 13-4178 Filed jointly with No. 14-5003 & No. 14-5006 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. __________________________________________ BRIEF OF AMICUS CURIAE PROFESSOR DAVID R. UPHAM IN SUPPORT OF DEFENDANTS-APPELLANTS AND REVERSAL Case No. 13-4178 (Appeal from D.C. No. 2:13-CV00217-RJS)

David R. Upham, Pro Se University of Dallas 1845 East Northgate Drive Irving, TX 75062-4736 Tel: (972) 721-5186 Email: davidrupham@yahoo.com

Docket Reference Number: [10148349]

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 2

CORPORATE DISCLOSURE STATEMENT Amicus Curiae is not a corporate party.

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 3

TABLE OF CONTENTS Corporate Disclosure Statement ................................................................................ i Table of Authorities ................................................................................................. iv Interest of Amicus Curiae ..........................................................................................1 Summary of Argument ..............................................................................................2 ARGUMENT .............................................................................................................3 I. Loving v. Virginia Represented a Vindication of Our Nations History and Tradition, and Especially the Original Understanding of the Fourteenth Amendment. ..................................................................................3 The District Courts Redefinition of Marriage Would Violate the Strong Presumption, Incorporated in the Due Process Clause, that the Child Should Be Entrusted to the Care, Custody, and Education of Her Natural Mother and Natural Father. .......................................................10 A. It Is Well-Established that Due Process of Law Requires the States to Presume that Children Are Entrusted to Their Natural Parents. ................................................................................................12 This Constitutional Presumption Can Be Overcome By Clear and Convincing Evidence of Forfeiture ..............................................15 Forfeiture, By Parental Consent, Requires That the Consent Be Deliberate, Informed, Specific, and Comprehensive . ........................15 The State Laws Presumption of Paternity Complements the Constitutional Presumption of Natural-Parental Trusteeship, But Under the District Courts Redefinition, the State Law Presumption Would Contradict this Constitutional Presumption. ........................................................................................18 The District Courts Redefinition Would Thus Violate the Equal Constitutional Right of Every Child to Her Mother and Father. ..................................................................................................21

II.

B. C. D.

E.

ii

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 4

III.

The District Courts Redefinition, By Adding the Prerequisite of Commitment and Emotional Bond, Would Severely Limit the Marital Liberty, Long Recognized at Common Law, and Would Thus Violate the Fourteenth Amendment. .............................................................23

Conclusion ...............................................................................................................27 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................28 CERTIFICATE OF SERVICE ................................................................................29 CERTIFICATE OF DIGITAL SUBMISSION .......................................................30

iii

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 5

TABLE OF AUTHORITIES Cases Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (June 25, 2013) .............................11 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). ......................................................7 Bonds v. Foster, 36 Tex. 68 (1872) ...........................................................................8 Burns v. State, 48 Ala. 195 (1872) .............................................................................8 Citizens United v. Federal Election Commn, 558 U.S. 310 (2010). ........................7 Goodridge v. Dept of Pub. Health, 440 Mass. 309 (2003).....................................25 Greene v. Briggs, 10 F. Cas. 1135 (C.C.D. R.I. 1852) (No. 5,764) ........................13 Hart v. Hoss & Elder, 26 La. Ann. 90 (1874) ...........................................................8 Hodgson v. Minnesota, 497 U.S. 417 (1990).................................................... 12, 14 In re Adoption of Graves, 481 P.2d 136 (Okla. 1971) .............................................17 In re Adoption of Walton, 259 P.2d 881 (Utah 1953) ..............................................17 In re Jones, 804 F.2d 1133 (10th Cir. 1986)............................................................17 Kennedy v. Meara, 56 S.E. 243 (Ga. 1906) .............................................................14 Loving v. Virginia, 388 U.S. 1 (1967) .......................................................... 2, 3, 4, 8 May v. Anderson, 345 U.S. 528 (1953) ...................................................................12 Medway v. Needham, 16 Mass. 157 (1819). ..............................................................6 Meyer v. Nebraska, 262 U.S. 390 (1923) ................................................... 12, 13, 26

iv

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 6

Michael H. v. Gerald D., 491 U.S. 110 (1989)........................................................19 Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) .........13 Nguyen v. INS , 533 U.S. 53 (2001) .........................................................................19 Nugent v. Powell, 33 P. 23 (Wyo. 1893) .......................................................... 14, 16 Parham v. J. R., 442 U.S. 584 (1979) ......................................................................11 Pearson v. Pearson, 51 Cal. 120 (1875). ...................................................................6 People ex rel. OConnell v. Turner, 55 Ill. 280 (1870) ...........................................14 Perez v. Sharp, 198 P.2d 17 (Cal. 1948)................................................................4, 7 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ............................4 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ............................4, 9 Salzberg v. Salzberg, 153 A. 605 (N.J. E. & A. 1931) ............................................26 Santosky v. Kramer, 455 U.S. 745 (1982) ........................................................ 12, 15 State v. Bailey, 10 Ohio Dec. Reprint 455 (Toledo Police Ct. 1884) ........................5 Troxel v. Granville, 530 U.S. 57 (2000) ............................................... 11, 12, 14, 21 United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013)............................... 10, 11 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) .................................................7, 25 Wynehamer v. the People, 13 N.Y. 378 (1856) .......................................................13 Statutes Marriage (Same Sex Couples) Act, 2013, c.30 (Eng.) ............................................18 Matrimonial Causes Act, 1973, c. 18 (Eng.) ...........................................................18

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 7

Utah Code 76-7-103 ..............................................................................................19 Utah Code 78B-15-204 .........................................................................................19 Utah Code 78B-6-11978B-6-127......................................................................17 Other Authorities Marry, Online Etymology Dictionary, http://www.etymonline.com/index.php?term=marry&allowed_in_frame=0 ........3 David R. Upham, Interracial Marriage and the Original Understanding of the Fourteenth Amendment (Draft, Jan. 2, 2014), available at http://ssrn.com/abstract=2240046. ............................................................... passim David Upham, Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage, Liberty Law Blog, Apr. 15, 2013, available at http://www.libertylawsite.org/2013/04/15/same-sex-unions-assumed-historicalfacts-and-interracial-marriage/#more-9856. ..........................................................1 Debates at the Arkansas Constitutional Convention (1868) ......................................8 Edmund Burke, Reflections on the Revolution in France (Oxford Classics ed. 2004) ....................................................................................................................23 Fay Botham, Almighty God Created the Races: Christianity, Interracial Marriage & American Law (2009). .......................................................................................6 Federalist Papers (Signet Classic ed. 1999) .............................................................27 Gallup Politics, In U.S., Record-High Say Gay, Lesbian Relations Morally OK, May 20, 2013, http://www.gallup.com/poll/162689/record-high-say-gay-lesbianrelations-morally.aspx ..........................................................................................19 Jane Austen, Pride and Prejudice (Dover Thrift ed. 1995). .....................................25 Mixed Marriages, Nashville Union and American, Oct. 3, 1873, at 3. .....................9 Oxford English Dictionary (2d ed. 1989) ..................................................... 3, 11, 26 Patricia A. Cain, Contextualizing Varnum v. Brien: A "Moment" in History, 13 J. Gender Race & Just. 27 (2009). .............................................................................7

vi

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 8

Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009). ........................................................................................6 Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage and LawAn American History (2002) ...................................................................................6, 9 Saint George Tucker, Blackstones Commentaries (1803) .......................................5 Shawn Hitchens, Experience: I Was a Sperm Donor For My Friends, The Guardian, Aug. 17, 2013, http://www.theguardian.com/lifeandstyle/2013/aug/17/experience-sperm-donor ..............................................................................................................................20 Walter W. Skeat, An Etymological Dictionary of the English Language (1910) .....3 William C. Duncan, Redefining Marriage, Redefining Parenthood (Mar. 15, 2013), available at http://www.law2.byu.edu/page/categories/marriage_family/2013_march/drafts/d uncan_parenthood.pdf ..........................................................................................18 Treatises James Kent, Commentaries on American Law (1832) ..................................... 14, 16 James Schouler, A Treatise on the Law of the Domestic Relations (2d ed. 1874) ...................................................................................................................... passim Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America (1839) .............................................................................................14 Lewis Hochheimer, The Law Relating to the Custody of Infants: Including Forms and Precedents (1899) ..........................................................................................16 W.C. Rodgers, A Treatise on the Law of Domestic Relations (1899). ...................14 Constitutional Provisions Declaration of Independence (U.S. 1776) ...............................................................23 U.S. Const. amend. XIV, 1. .......................................................................... passim

vii

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 9

INTEREST OF AMICUS CURIAE1 David R. Upham, Ph.D., J.D. (Amicus) is an Assistant Professor of Politics at the University of Dallas,2 where he regularly teaches graduate and undergraduate courses in constitutional law, civil rights, and American political thought. He has researched and published extensively in the history of the Besides his doctoral dissertation and his published

Fourteenth Amendment.

articles, he has recently completed an extensive study on interracial marriage and the original understanding of the Amendment.3 Through this brief, Amicus hopes to bring to this Courts attention certain facts of our nations constitutional historyfacts that are highly relevant to the disposition of this case, but which were not addressed in the proceedings below.

No partys counsel authored the brief in whole or in part, and no one other than the amicus curiae contributed money that was intended to fund preparing or submitting the brief. This brief is filed with the consent of all parties, pursuant to the general consent filed on January 24, 2104. Thus no motion for leave to file is required. See Fed. R. App. P. 29(a). 2 In filing this brief, Amicus is acting solely on his own behalf and not as a representative of the University of Dallas. 3 David R. Upham, Interracial Marriage and the Original Understanding of the Fourteenth Amendment (Draft, Jan. 2, 2014), available at http://ssrn.com/abstract=2240046 (Upham, Interracial Marriage). A short version of this study was published as a blog post. David Upham, Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage, Liberty Law Blog, Apr. 15, 2013, available at http://www.libertylawsite.org/2013/04/15/same-sexunions-assumed-historical-facts-and-interracial-marriage/#more-9856. 1

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 10

SUMMARY OF ARGUMENT Citing Loving v. Virginia, 388 U.S. 1 (1967), the District Court concluded that neither history nor tradition could justify the State of Utah in retaining the traditional definition of marriage. Rather, the court affirmed, our Constitution compels the State of Utah to adopt a new formulation, one utterly unknown to our nations history and tradition. Contrary to the District Courts opinion, such contra-historical redefinition finds no support in Loving. Loving represented a restoration, not a rejection, of our common-law and constitutional tradition. Moreover, contrary to the District Court (and indeed all parties in this case), our Constitution, read in light of our history and tradition, not only permits Utah to retain the traditional definition of marriage, but forbids Utah from adopting the District Courts alternative definitionfor two reasons. First, this redefinition would confer the presumption of parentage to persons other than biological parents, thus establishing a statutory presumption contradictory to the constitutional presumptionmandated by the Due Process Clausethat the child is entrusted to the care, custody, and education of her natural mother and father. Second, the reformulation, by inserting the new prerequisite of commitment or emotional bond, would severely and unlawfully restrict the broad marital liberty long recognized at common law and thus secured by the Due Process Clause.

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 11

ARGUMENT I. Loving v. Virginia Represented a Vindication of Our Nations History and Tradition, and Especially the Original Understanding of the Fourteenth Amendment. In holding that our Constitution compels Utah to abandon the traditional definition of marriage,4 the District Court relied heavily on the purportedly analogous case of Loving v. Virginia, 388 U.S. 1 (1967). Memorandum Decision and Order (Dist. Ct. Decision), dated 12/20/13, docket number 90, at 13, 2021, 28, 35, 51. In drawing this analogy, the District Court indicated that its

redefinition of marriage was no more novel or contra-historical than Lovings holding, for our nations legal tradition had, before Loving, generally endorsed anti-miscegenation or racial-endogamy laws.5

The word marriage is derived from the Latin noun marita (wife). Marita, with the form of a feminine past-participle, indicated a lost (and indelicate) verb by which a wife was a woman who had been manned or provided with a husband. 9 Oxford English Dictionary 400 (2d ed. 1989); Walter W. Skeat, An Etymological Dictionary of the English Language 365 (1910). See also, Marry, Online Etymology Dictionary, http://www.etymonline.com/index.php?term=marry&allowed_in_frame=0 (providing a different, but still gendered etymology) (last visited Feb. 8, 2014). According to this etymology, same-sex marriage was always an oxymoron. 5 Amicus prefers the use of the term racial endogamy to anti-miscegenation, in part because the word miscegenation was a pejorative neologism, invented by critics in 1863, which term suggested that Americans of different races could properly be classified as members of different genera, whose intermarriage represented a mixing of these genera. Amicus deems such a notion hostile to the principles of the Reconstruction Amendmentswhich recognized only one people, under one Constitution. Upham, Interracial Marriage, supra at 56. 3

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 12

In this regard, the court made five particular claims. The court (1) asserted the historical prevalence of such laws, Dist. Ct. Decision at 21 (quoting Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010)), (2) suggested that when Loving was decided, interracial marriage had only recently been allowed, Dist. Ct. Decision at 28, (3) asserted that interracial marriage was not specifically protected from government interference at the time the Fourteenth Amendment was ratified, id. at 21, (4) suggested that courts had not invalidated racialendogamy laws until 1948, id. at 20, n.7 (citing Perez v. Sharp, 198 P.2d 17 (Cal. 1948)), and (5) asserted that interracial marriage was illegal in most States in the 19th century, Dist. Ct. Decision at 21 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 84748 (1992)). Each of these five factual claims, whether asserted or suggested, is clearly erroneous. As to the first and second claims, racial-endogamy laws were not historically prevalent; still less had interracial marriages been allowed only recently before Loving (1967). Throughout our history, interracial marriage was lawful in many American states and territories. At common law, race was no impediment, so in the absence of local statutory restriction, such marriages were

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 13

valid and otherwise lawful.6 Unlike Utahs constitutional definition of marriage, racial-endogamy laws were restrictive, not declaratory, of the common law, involving a regulatory, not a definitional, discrimination. Because the common law recognized the validity of interracial marriages, their allowance or legalization required only statutory silence.7

James Schouler, A Treatise on the Law of the Domestic Relations 29 (2d ed. 1874) (noting that race, color, and social rank do not appear to constitute an impediment to marriage at the common law and that although by local statutes in some of the United States, intermarriage has been discouraged between persons of the negro, Indian, and white races, [w]ith the recent extinction of slavery, many of these laws have passed into oblivion); see generally, Upham, Interracial Marriage, supra at 1217. 7 Id. Even statutory illegality did not always entail invalidity. See, e.g., 2 Saint George Tucker, Blackstones Commentaries, app. G, at 58 (1803) (noting that in Virginia, interracial marriage remained valid, though statutorily illicit); State v. Bailey, 10 Ohio Dec. Reprint 455, 455 (Toledo Police Ct. 1884) (stating that Ohios statutory prohibition had nothing to do with the validity of the marriage: we know of no law which invalidates it). 5

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 14

By such statutory silence, interracial marriages were valid in a clear majority of the states when our Constitution was adopted.8 In the early nineteenth century, the balance shifted to racial endogamy, but by the Civil War, interracial marriage was still lawful in roughly one-third of the states9 and many territories, including Utah.10 See, e.g., Pearson v. Pearson, 51 Cal. 120, 125 (1875) (holding that because there was no law or regulationin the Territory of Utah interdicting intermarriage between white and black persons such a marriage had been validly contracted there in 1854, and would be recognized in California, despite a local

Fay Botham, Almighty God Created the Races: Christianity, Interracial Marriage & American Law 5455 (2009) (showing that in 1787, only four states had statutes criminalizing or invalidating interracial marriage). Note that some states had special statutes providing enhanced punishment for interracial, extramarital sex, but these laws did not invalidate interracial marriage. See also Medway v. Needham, 16 Mass. 157, 161 (1819) (opinion of Parker, C.J.) (holding that an interracial marriage lawfully celebrated in Rhode Island would be recognized in Massachusetts, by distinguishing interracial marriage, which Massachusetts prohibited merely on account of political expediency from incestuous marriages, which would tend to outrage the principles and feelings of all civilized nations). Massachusetts would, after extensive debate, repeal its local statute in 1843. Upham, Interracial Marriage, at 3638. Of course, the absence of legal impediment did not signal popular approval. 9 On the eve of the Civil War, interracial marriage was lawful in eleven of the thirty-four states: New Hampshire, Vermont, Massachusetts (repeal 1843), Connecticut, New York, New Jersey, Pennsylvania (repeal 1780), Minnesota, Iowa (repeal 1851), Wisconsin, and Kansas (repeal 1859). Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage and LawAn American History 25354 (2002). 10 Utah first adopted a racial-endogamy statute in 1888. Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 85 (2009). 6

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 15

statute) (discussed with approval in Perez, 198 P.2d at 32 (Carter, J., concurring)).11 Moreover, contra the District Courts third claim, the Fourteenth Amendment, according to its original understanding, specifically protected the right of interracial marriage. Before the Civil War, most authorities, including the Supreme Court, had agreed that to confer the status and privileges of citizenship to free blacks would invalidate any racial-endogamy laws. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 408409 (1857).12 Further, while the Amendment

vindicating this equal citizenship was proposed and discussed, most participants in the debates asserted, acknowledged, or conspicuously failed to deny, that the

11

Statutory silence had exactly the opposite effect on putative same-sex marriages. Silence implied not the validity, but the utter invalidity (indeed impossibility) of same-sex marriages. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Marriage by definition has involved two, and only two, natural persons, one male and one female. Id. It was not until 1973 that any American jurisdiction saw any need to clarify what had always been clear. Patricia A. Cain, Contextualizing Varnum v. Brien: A "Moment" in History, 13 J. Gender Race & Just. 27, 30 (2009) (noting that in 1973, Maryland became the first state to clarify its marriage statute in this way). For similar reason, there isnot yetany perceived need for a statute prohibiting putative marriages between corporations or other artificial persons, notwithstanding Citizens United v. Federal Election Commn, 558 U.S. 310 (2010). 12 This opinion spanned the political spectrum from Roger Taney to Stephen Douglas to Orestes Brownson to William Lloyd Garrison. Upham, Interracial Marriage, supra at 2638. 7

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 16

Amendment would protect African Americans right to intermarr y with other American citizens, regardless of race.13 Consistent with this original understanding, contra the District Courts fourth claim,14 during Reconstruction (four score years before 1948), many judges struck down these laws as inconsistent with the Fourteenth Amendment and/or the Civil Rights Act of 1866. These judges included virtually every Republican trial or appellate judge to consider the matter.15 To be sure, many others upheld these laws, but as the Supreme Court noted in Loving, these jurists were generally antagonistic to both the letter and the spirit of the [Reconstruction] Amendments and wished them to have the most limited effect." Loving, 388 U.S. at 9 (citations and quotations omitted). Indeed, the research of Amicus has confirmed that during

13

Id. at 3855; see, e.g., Debates at the Arkansas Constitutional Convention 377, 50204 (1868) (remarks of Miles Langley & James Hodges), available at https://archive.org/details/cu31924032658480. 14 Strictly speaking, the District Court was correct in writing, the California Supreme Court became the first court in the twentieth century to invalidate these laws (Dist. Ct. Decision at 20 n.7) (emphasis added). But the courts conspicuous omission of important Reconstruction-era cases, coupled with other assertions in the courts opinion, left the strong impression that no court had invalidated these laws before 1948. 15 See Bonds v. Foster, 36 Tex. 68, 6970 (1872); Burns v. State, 48 Ala. 195, 197 98 (1872); Hart v. Hoss & Elder, 26 La. Ann. 90 (1874). Republican trial judges in Mississippi, North Carolina, Louisiana, Texas, Indiana, and Ohio made the same holding. Upham, Interracial Marriage, surpra at 6268. 8

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 17

Reconstruction, these judges were virtually all former southern disloyalists, or, in Indiana, members of an avowedly racist and anti-reconstruction state party.16 Finally, the fifth claimthat interracial marriage was illegal in most states in the 19th centuryis erroneous as to the Reconstruction era. The Supreme Court made this sweeping claim in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992), but the Court provided no supporting evidence, and subsequent scholarship has partly refuted the assertion. Within five years after the Fourteenth Amendments ratification, racial-endogamy laws were either nonexistent, unenforced, or judicially nullified, in our nations capital, a clear majority of states, and an even larger majority of ratifying stateslargely because Republican officials concluded that these laws violated the spirit and letter of the newly amended Constitution.17 It was only after Reconstruction, with the triumph of the racist zeitgeist and the new birth of racial apartheid in the South and in some

16 17

Id. at 6871. Id. at 5368 (finding that within five years of ratification, interracial marriage was effectively lawful in 23 of the 33 states that had ratified the Amendment, and in virtually all the predominantly Republican states); Wallenstein, at 103 (stating that interracial marriage was lawful in seven of the eleven former Confederate states); Mixed Marriages, Nashville Union and American, Oct. 3, 1873, at 3, available at http://chroniclingamerica.loc.gov/lccn/sn85033699/1873-10-02/ed-1/seq-2/ (last visited Jan. 29, 2014) (reporting that one judges multistate survey had found that interracial marriages was effectively lawful in 21 of 37 states and the District of Columbia). 9

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 18

western jurisdictions (like Utah), that interracial marriage became once again invalid or illegal in a clear majority of states and territories.18 The District Courts claims as to the historical prevalence of racialendogamy laws represent assumed historical facts which are not really true.19 These factual errors were critical to the District Courts decision to jettison the universal, traditional definition of marriage. Ami cus asks this Court to correct the mistake and reconsider the conclusion based on it.20 II. The District Courts Redefinition of Marriage Would Violate the Strong Presumption, Incorporated in the Due Process Clause, that the Child Should Be Entrusted to the Care, Custody, and Education of Her Natural Mother and Natural Father. One day before the Courts decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013), Justice Sotomayor, joined by Justices Ginsburg and Kagan, reminded her colleagues that our laws, and indeed the Constitution itself, establishes a preference for the relationship between a child and her natural

18 19

Upham, Interracial Marriage, supra at 79. Abraham Lincoln, Speech at Springfield, Illinois, June 26, 1857, in 2 Collected Works 398, 403 (Roy P. Basler ed. 1946). 20 Cf. Abraham Lincoln, Address at Cooper Institute, New York City, Feb. 27, 1860, in 3 Collected Works, 522, 546. (When this obvious [factual] mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?). 10

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 19

parents.21 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2582 (June 25, 2013) (Sotomayor, J., dissenting). She highlighted, inter alia, the Supreme Courts

decisions in Troxel v. Granville, 530 U.S. 57 (2000) and Parham v. J. R., 442 U.S. 584 (1979), in which, she wrote, the Court had held that the Due Process Clause incorporated the presumption that a natural parent will act in the best interests of his child. Adoptive Couple, 133 S. Ct. at 2582 & 2583 n.14 (emphasis added).22 This constitutional presumption, she explained, reflects not only a prudential approach to childcare, but also the recognition that the child and her natural parents have a priceless interest in their relationship. On the one hand, the natural parent's desire for and right to the companionship, care, custody, and management of his or her childrenis an interest far more precious than any property right; on the other hand, the child has a reciprocal precious right; indeed, to foreclose a newborn child's opportunity to ever know his natural parents [is] a los[s] [that] cannot be measured. Id. at 257475, 2582 (quoting Santosky v. Kramer, 455

21

The word natural parent is something of a redundancy. Parent is derived from the Latin verb parre (to bring forth, produce, or beget), so a parent is one who produces or brings forth somethingin this case, offspring. 11 Oxford English Dictionary 222 (2d ed. 1989). In recent times, guardians who adopt children are deemed, as a matter of law, to be parents. This usage is so widespread and the custom so well established, that we frequently speak of adoptive parents as parents simply. 22 Because federal marriage law has, at best, only a remove effect on child custody, the Court had no need to consider the parental rights of marriage in Windsor. 11

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 20

U.S. 745, 75859, 76071 n.11 (1982)) (emphasis added); accord May v. Anderson, 345 U.S. 528, 533 (1953). A. It Is Well-Established that Due Process of Law Requires the States to Presume that Children Are Entrusted to Their Natural Parents.

As Justice Sotomayor suggested, the presumption favoring this precious relationship is indeed deeply rooted in our constitutional tradition. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Supreme Court vindicated the parents natural duty and (thus) primary right to direct the education of their offspring. Id. at 400. Since then, seemingly every member of the Court has endorsed this presumption in one case or another. Just ten years ago, most of the Justices reaffirmed this presumption. Troxel, 530 U.S. at 6869 (opinion of OConnor, J, joined by Rehnquist, C. J., and Ginsburg and Breyer, JJ); id.at 77 (Souter, J., concurring); id. at 8687 (Stevens, J, dissenting). Only Justices Kennedy and Scalia demurred, id. at 9193 (Scalia, J., dissenting), id. at 98 (Kennedy, J., dissenting), even though they had once affirmed the fundamental liberty interest of natural parents in the care, custody, and management of their child, Hodgson v. Minnesota, 497 U.S. 417, 485 (1990) (Kennedy, J., dissenting) (citations and quotations omitted) (emphasis added). In Troxel, Justice Scalia doubted whether the Constitutions text and original understanding supported Meyer and its many progeny. Troxel, 530 U.S. at 9193

12

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 21

(Scalia, J., dissenting). In sharp contrast, Justice Kennedy cited as his principal concern the obvious implication of the natural-parental presumption: that the conventional nuclear family ought to establish the visitation standard for every domestic relations case. Id. at 98 (emphasis added) Amicus submits that Justice Scalia was probably mistaken in doubting the originalist and textual foundation of Meyer. The Fourteenth Amendments Due Process Clause, as originally understood, incorporated those settled usages and modes of proceeding existing in the common and statute law of England that had been preserved in the American colonies and states. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1856). These settled usages and modes encompassed certain presumptions, including not only the presumption of innocence in criminal cases,23 but also the presumption of the natural parents trusteeship in child custody cases. Accordingly, decades before Meyer, several courts had affirmed that to disregard this presumption, in reassigning custody to non-parents, was to deprive the child or parent, of liberty or property, without due

23

Greene v. Briggs, 10 F. Cas. 1135, 1140 (C.C.D. R.I. 1852) (No. 5,764); Wynehamer v. the People, 13 N.Y. 378, 446 (1856) (Selden, J., concurring). 13

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 22

process of law.24 In 1990, Justice Kennedy properly articulated this old procedural rule: Absent a showing of abuse or neglect, [the natural p arent] has the paramount right to the custody and control of his minor children, and to superintend their education and nurture. Hodgson, 497 U.S. at 483 (Kennedy, J., dissenting).25 But Justice Kennedy, a decade later in Troxel, was probably correct in inferring that this strong presumption in favor of the natural parents does indeed establish a constitutional preference for the conventional nuclear family. After all, to hold precious the bond between child and n atural parent necessarily implicates a preference for that domestic arrangement where the child lives with
24

People ex rel. OConnell v. Turner, 55 Ill. 280, 28488 (1870) (holding that to deprive a child of his fathers care and assign the child to a reform school, without a prior finding of criminal liability on the childs part, or a prior finding of gross misconduct or almost total unfitness on the fathers part, would deprive the child of liberty without due process of law); Nugent v. Powell, 33 P. 23, 48 (Wyo. 1893) (holding that consistent with due process, a childs adoption would be effective by the consent of the mother if, as to the non-consenting father, the fact of abandonment is first proven); Kennedy v. Meara, 56 S.E. 243, 24748 (Ga. 1906) (affirming that the parent has not only a duty to educate the child, but also a property interest in the childs services, the deprivation of which property requires a showing, after notice and hearing, that the parent had by his conduct, forfeit[ed] his right to the custody of his minor child). 25 Besides the authorities listed by Justice Kennedy, Hodgson, 497 U.S. at 48384, see also, e.g., 2 James Kent, Commentaries on American Law 205 (1832) (The natural father and mother are generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. But the courts of justice may, in their sound discretion, and when the morals, or safety, or interests of the children strongly require it, withdraw the infants from the custody of the father or mother, and place the care and custody of them elsewhere (emphasis added)). Accord, 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America 57475 1341 (1839); W.C. Rodgers, A Treatise on the Law of Domestic Relations 536 (1899). 14

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 23

both parents at the same time and in the same place.

To the extent of the

presumption, then, the states interest in promoting the nuclear family is not only compelling, but constitutionally compelling.26 B. This Constitutional Presumption Can Be Overcome By Clear and Convincing Evidence of Forfeiture

According to our history and tradition, this presumption was not irrebuttable or conclusive. Instead, as indicated by the authorities listed above, the

presumption could be overcome, but only by a strong showing of forfeiture by abuse or neglect. In recent decades, the Supreme Court has used a somewhat different formula: the complete termination of parent s rights to their natural child requires clear and convincing evidence of parental neglect. Santosky, 455 U.S. at 748. C. Forfeiture, By Parental Consent, Requires That the Consent Be Deliberate, Informed, Specific, and Comprehensive .

This forfeiture requires something more than naked consent. Our laws have never treated the parents authority over the child as something transferable at will. Parents do not own their children in fee simple absolute. Parents may not buy and sell their offspring as chattel. They have no right, properly speaking, to abandon

26

To say that this relationship is precious and even preferred is not to insult the countless adults, whether adoptive parents, grandparents, or other caregivers, who cherish their personal relation with a child, and who, in countless ways, have often acted in loco parentis or otherwise played a vital role in the childs education. 15

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 24

their children. Rather, parental rights arise only from parental duties, 27 for parental authority is in the nature of a sacred trust.28 Thus, a parents decision to abandon that trust has typically been characterized as forfeiture, not lawful transfer. In one respect, the states will not permit parents to abandon their offspring. While the states prudentially acquiesce in a parents refusal to provide personal attention and love for the child, the states regularly compel child-support payments. For the same reason, the law has generally not enforced any contract involving an irrevocable parental reassignment. By a mere gift of his child or a contract with reference to its custody[,] the father may not divest himself of the right to the custody of his child to such an extent that he may not reclaim it .29 Accordingly, mere parental consent, per se, is not sufficient to terminate the parents relation with the child. A simple contract or any other singular, casual expression of consent is not sufficient to show forfeiture. But our statutory law at length came to permit forfeiture by consent. Legal adoptionthough created by statutes in derogation of the common-law rights of

27

Kent, Commentaries, supra at 203 (The rights of parents result from their duties.). 28 Lewis Hochheimer, The Law Relating to the Custody of Infants: Including Forms and Precedents 42, 40 (1899) (concluding that the prevailing view in the American courts has always been [that] guardianship is in the nature of a trust). 29 Nugent, 33 P. at 38. 16

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 25

natural parents30can involve such irrevocable consent. Still, so great has been the laws presumption in favor of the childs right to her natural parents, that to be effective, such consent must be so deliberate, informed, and specific as to evince an intent to abandon definitively all parental authority. The Utah Supreme Court eloquently explained the rule a half-century ago: Courts have not hesitated to build a strong fortress around the parentchild relation, and have stocked it with ammunition in the form of established rules that add to its impregnability. To sever the relationship successfully, one must have abandoned the child, and such abandonment [of] all correlative rights and duties incident to the relationmust be with a specific intent so to doan intent to sever ship. Such intent must be proved by him who asserts it, by proof that not only preponderates, but which must be clear and satisfactory, something akin to that degree of proof necessary to establish an offense beyond a reasonable doubt, or, as one authority puts it by clear and indubitable evidence. Ofttimes it is pointed out that abandonment, within the meaning of adoption statutes, must be conduct evincing a settled purpose to forego all parental duties and relinquish all parental claims to the child. In re Adoption of Walton, 259 P.2d 881, 883 (Utah 1953) (citations omitted). Accordingly, the states have generally required that adoption must satisfy exacting procedures to ensure such informed, specific, and definitive consent. Id.; Utah Code 78B-6-11978B-6-127.

30

See, e.g., In re Jones, 804 F.2d 1133, 1139, 1140 n.11 (10th Cir. 1986) (citing and discussing In re Adoption of Graves, 481 P.2d 136 (Okla. 1971)). 17

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 26

Even today, while our modern statutory law authorizes adoption, the attitude toward the natural parents departure remains acquiescence rather than celebration. We issue licenses to facilitate adoption, but not licenses to abandon offspring. D. The State Laws Presumption of Paternity Complements the Constitutional Presumption of Natural-Parental Trusteeship, But Under the District Courts Redefinition, the State Law Presumption Would Contradict this Constitutional Presumption.

In holding that the Constitution compels Utah to redefine marriage, the District Court announced that same-sex couples must enjoy all the responsibilities and benefits of marriage, including those relating to the children of same-sex parents. Dist. Ct. Decision, at 39, 4546. Unlike some foreign jurisdictions, which have granted the status marriage, but carefully withheld one or more marital rights or duties,31 the District Court indicated that under the American flag, nothing short of full equality of all couples, in all respects, will be acceptable.32

31

See, e.g., Marriage (Same Sex Couples) Act, 2013, c. 30, sched. 4, pts. 23 (Eng.) (stipulating that where a child is born to a woman during her marriage to another woman, that [common-law] presumption is of no relevance to the question of who the childs parents are and that unlike opposite-sex marriages, same-sex marriages will not be voidable due to a partys inability or unwillingness to consummate the marriage (referencing Matrimonial Causes Act, 1973, c. 18, 12 (Eng.))). 32 Courts in other states have reached a similar conclusion regarding comprehensive marriage equality. William C. Duncan, Redefining Marriage, Redefining Parenthood 1012 (Mar. 15, 2013), available at http://www.law2.byu.edu/page/categories/marriage_family/2013_march/drafts/dun can_parenthood.pdf (noting state courts assigning automatic parental status to the same-sex partner of the childs mother). 18

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 27

One of the long-established benefits (or burdens) of marriage, in relation to children, is the presumption of paternity. At common law, any child born to a married woman was strongly presumed to be the offspring of her husband.33 This presumption is now codified by statute in Utah and many states. Utah Code 78B-15-204. Under traditional marriage, this presumption complements the constitutional presumption favoring natural parents, in at least three ways. First, as a factual matter, the presumption is true in the vast majority of cases: the husband is the father.34 Second, the presumption itself, coupled with law and opinions stubborn disapproval of adultery,35 serves, via a self-fulfilling prophesy,36 to make the presumption true in even more cases. Third, the legal presumption of paternity effectively incorporates an adequate rebuttal to the constitutional presumption: the
33 34

Schouler, Law of Domestic Relations, supra at 303308 Michael H. v. Gerald D., 491 U.S. 110, 113 (1989) (plurality op.) (The facts of this case are, we must hope, extraordinary.). 35 See, e.g., Utah Code 76-7-103. Despite remarkable increases, in the last decade, in the number of Americans approving of homosexual conduct, nonmarital sex, non-marital procreation, and polygamy, a stable 90% of Americans continue, obstinately, to disapprove of adultery. Gallup Politics, In U.S., RecordHigh Say Gay, Lesbian Relations Morally OK, May 20, 2013, http://www.gallup.com/poll/162689/record-high-say-gay-lesbian-relationsmorally.aspx. 36 As Justice OConnor once noted, the laws expectations as to the weakness of fathers bonds with their offspring can become a noxious self-fulfilling prophesy. Nguyen v. INS , 533 U.S. 53, 89 (2001) (OConnor, J., dissenting). Conversely, the laws presumption of paternity functions in a similar fashion, but here this self-fulfilling expectation has the beneficial effect of strengthening that bond. 19

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 28

fathers adultery itself is strong evidence of his intent to abandon the resulting offspring (though this intent cannot be imputed to the mother who subsequently carries the child to term). In none of these respects, however, would these presumptions be complementary under same-sex marriage. First and foremost, in same-sex

relationships, the presumption of parentage would be always false. Every child born to a woman in such a marriage would be falsely, but legally presumed, to be the child of her partner and to have no father at all. Second, the redefinition would encourage extra-marital sex and reproduction, for the comprehensive and uncompromising marriage equality demanded in this case would be inimical to any laws and opinions that have a disparate impact on same-sex couplesand acceptance of extramarital reproduction is essential to the same-sex couples purported right to joint parenthood. Third, precisely to the extent of this

revolution in values, these natural fathers could not, by their praiseworthy service to the great cause of equality, be deemed to have intended, ipso facto, to abandon their own offspring (unlike the adulterous fathers in the ancien rgime).37

37

See, among countless contemporary examples of the new ethics, Shawn Hitchens, Experience: I Was a Sperm Donor For My Friends, The Guardian, Aug. 17, 2013, http://www.theguardian.com/lifeandstyle/2013/aug/17/experiencesperm-donor (The baby is now 10 months old, and although I see her regularly, I'm certainly not Dad. I'm Shawn. But we will always be open about my connection to her. It's important for her to know that she was born in a special way, and that her arrival helped to change ideas of what a family can be.). 20

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 29

E.

The District Courts Redefinition Would Thus Violate the Equal Constitutional Right of Every Child to Her Mother and Father.

In Troxel, the Supreme Court held that the states cannot create presumptions opposite to the presumption of natural-parental trusteeship. 530 U.S. at 63 (OConnor, J., plurality opinion). In that case, the Court struck down as

unconstitutional Washingtons decision to grant partial custody to a childs grandparents without respecting the mothers presumptive custodial rights. The Court indicated that no matter how strong and deep the relationships between grandparent and grandchild (or we might add, between maternal grandmother and motherthe most common form of same-sex parenting today), the states may not reassign the custody of children from parents to grandparents or any other adults without first rebutting the strong presumption in favor of the childs natural father and mother. What the State of Washington could not do in favor of the grandmotherthe mothers same-sex parentUtah cannot do in favor of the mothers same-sex partner. The Constitution simply does not permit Utah to redefine marriage so as to redefine parent and thus manufacture a presumption in direct conflict with the Constitutions presumption favoring the natural parent. But in this case, the District Court has ordered the state of Utah to do precisely what the Constitution forbids: to issue marriage licenses that will impair or destroy the childs presumptive right to her mother and father. The child born 21

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 30

into a same-sex marriage would have no presumptive right to her father. To be sure, in case of the merely anonymous and mercenary sperm donor, the father may properly be said to have forfeited this duty and right by abandonment. But not all fathers to children in same-sex households will be mercenary or anonymous. Able, willing, loving fathers will be shut out by raw state power. This child would likewise not be guaranteed the full right to her natural mothers care and education. In any custody dispute between the mother and her partner, the law will treat both equally, and impute to the mother, simply by asking for a marriage license, an irrevocable consent to share custody with her partner. Indeed, frequently if not usually, the courts will decide that her partner should have primary custody.38 Such forfeiture by contract is utterly alien to due process of law. Unlike the mother who relinquishes her child to adoptive parents, the alleged consent here would be neither specific, nor deliberate, nor comprehensive, nor, in many cases, even conscious.39 The dispute over same-sex marriage is truly about equality: irreconcilable notions of equality. Marriage equality is incompatible with not only the eq ual
38

In such disputes, the equality in law will frequently be an inequality in fact. The woman who has undertaken to bear and nurse a child typically must, at least temporarily, sacrifice her activity in the labor market, so to that extent she is likely to be poorer than her former partner and thus lack equal legal representation. 39 That is to say, upon applying for the marriage license the woman frequently will not be thinking about the effects on her right to the custody of future offspring. 22

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 31

rights of the states under the Tenth Amendment, but also the fundamental, equal right of every child to her mother and father, without regard to her mothers sexual orientation or choice of life partner. The equal rights of such children and their parents, whether LGBT or otherwise, are safeguarded by our Constitution. But marriage equality is foreign to our Constitution, and unacknowledged by our laws.40 In sum, the District Courts disregard of the traditional definition of marriage reflects a disregard for the constitutional rights of children and their parents. Here, as in similar matters, the neglect of our ancestors would prove the neglect of our posterity.41 III. The District Courts Redefinition, By Adding the Prerequisite of Commitment and Emotional Bond, Would Severely Limit the Marital Liberty, Long Recognized at Common Law, and Would Thus Violate the Fourteenth Amendment. There is another constitutional problem with the District Courts redefinition of marriage. Besides discarding gender diversity, the court added a new element: commitment and/or emotional bond All definitions involve discriminations, and marriage is no different. Under the common law, marriage has included at least five definitional

40 41

Declaration of Independence (U.S. 1776). People will not look forward to posterity who never look backward to their ancestors. Edmund Burke, Reflections on the Revolution in France 33 (Oxford Classics ed. 2004). 23

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 32

discriminations: not only (1) the parties gender diversity, but also (2) their natural personhood (corporations, for example, may not form a valid marriage), (3) their number (two and only two), (4) their mutual consent, and (5) their mutual sexual relation (e.g., consummation prerequisite).42 Moreover, at common law, coeval with these definitional discriminations have been at least two regulatory discriminations: viz., on the basis of (6) the parties consanguinity (incest prohibition) and (6) their marital status (polygamy prohibition).43 As noted, some states, by statute, imposed a regulatory discrimination on the basis of the couples racial homogeneity. In his opinion, the District Court not only declared the first discrimination unconstitutional, but added a new prerequisite, unknown at common law: the parties mutual commitment and/or emotional bond. The court defined marriage as a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotio nal bond.

42

See, e.g., Schouler, Law of Domestic Relations, supra at 23, 41 (The word marriage signifies, in the first instance, that act by which a man and woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife, and when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation,that, in a state of nature, would be a marriage.). 43 Id. at 27, 34. As the word indicates, polygamy refers to plural marriages, which were forbidden, and not to a marriage included three or more persons, which was never forbidden because such marriage was impossible to begin with, much li ke same-sex, inter-corporate or any other thing not involving the relation between two natural persons, one male and one female. 24

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 33

Dist. Ct. Decision at 28.

Elsewhere, the court indicated that the fact of

commitment and/or emotional bond was decisive to the validity of marriage. Same-sex marriage must now be recognized because of an allegedly recent epiphany: today we know the fact that [gays and lesbians] are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. Id. at 30. Similarly, in the Plaintiffs pleadings, the fact of their commitment is of primary importance. The first pleading describing the Plaintiffs announces their participation in a committed relationship.44 Nonetheless, like racial homogeneity, neither mutual emotional bond nor commitment was a prerequisite at common law. What the law required only was the capacity and willingness to agree to enter into a lifelong partnership in that commerce (sexual intercourse) and cohabitation necessary for the procreation and the joint education of offspring.45 The parties did not need to feel love or any other exalted feeling toward one another.46 Love and marriage may go together in the song, but at common law, you could most certainly have one without the
44

Plaintiffs Original Complaint, dated 03/25/13, docket number 2, at 78. Accord, Varnum v. Brien, 763 N.W.2d 862, 883884 (Iowa 2009) (defining marriage as legal recognition for committed relationships; Goodridge v. Dept of Pub. Health, 440 Mass. 309, 332 (2003) (concluding that the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage). 45 Schouler, Law of Domestic Relations, supra at 23, 41. 46 Miss Lucas, who accepted him solely from the pure and disinterested desire of an establishment, cared not how soon that establishment were gained. Jane Austen, Pride and Prejudice 84 (Dover Thrift ed. 1995). 25

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 34

other.47 Still less did the common law require the parties commitment. The very word commitment, used in the reflexive sense of autonomous choice, arose only in the last half-century as the translation of Jean-Paul Sartres antinomian, existentialist concept of engagement.48 Consider, for instance, in the term civil commitment. The Fourteenth Amendment to the Constitution secures the right to marry insofar as such a right has been long recognized at common law. Meyer v.

Nebraska, 262 U.S. 390, 399 (1923). The right to marry, at common law, required no emotional bond or commitment between the parties. The District Courts redefinition, then, would violate the Constitution by severely narrowing the constitutional right to marry. This redefinition would thus exclude from marriage millions of our fellow citizens. Many Americans, whether from deeply-seated personal temperament, emotional orientation, or otherwise, find it very difficult to form deep emotional bonds with others; others may have such capacity, but for whatever reason, cannot form these bonds with their spouses. Nonetheless, these Americans would like to
47

See, e.g., Salzberg v. Salzberg, 153 A. 605, 607 (N.J. E. & A. 1931) (A marriage cannot be annulled for the reason only that no love existed between the parties to the marriage at the time thereof.). 48 3 Oxford English Dictionary 560 (2d ed. 1989) (noting that to commit in the reflexive sense (that is, to commit oneself) means to enter a commitment, where commitment is a translation of Sartres engagement and thus meaning absolute moral choice of a course of action). Obviously this exaltation of free individual choice is adverse to the laws notions of marital duties or bonds. 26

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 35

enter the peculiar male-female partnership and build a family. The District Courts redefinition thus threatens the constitutional right to marry of millions of our fellow citizens. CONCLUSION Amicus respectfully submits that all parties to the case have been mistaken. Our Constitution, read in light of history, tradition, and well-established precedent, not only permits the states to retain the traditional definition of marriage, but forbids the states to adopt the new definition set forth by the District Court. In

light of the historical principles set forth in this brief, Amicus respectfully asks the Judges of this Court to safeguard our Constitution inflexibly and uniformly, 49 and especially the constitutional rights of the childand therefore to uphold, unanimously, the traditional definition of marriage.

Dated: February 10, 2014 Respectfully submitted, /s/David R. Upham University of Dallas 1845 E. Northgate Drive Irving, TX 75060 Tel: (972) 721-5186 Email: davidrupham@yahoo.com
49

Federalist No. 78, at 464, 469 (Signet Classic ed. 1999) (noting that our Constitution gives federal judges life tenure partly to ensure their inflexible and uniform adherence to the rights of the Constitution, and of individuals). 27

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 36

CERTIFICATE OF COMPLIANCE WITH RULE 32(A) Certificate of Compliance with 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 this brief contains 6,999 words, 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 this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font.

Date: February 10, 2014

/s/ David R. Upham Attorney Name

28

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 37

CERTIFICATE OF SERVICE I hereby certify that on February 10, 2014, I electronically filed the foregoing using the courts CM/ECF system, which will send notification of such filing to counsel for all parties to the case: Attorneys for Plaintiffs-Appellees Peggy A. Tomsic tomsic@mgplaw.com James E. Magleby magleby@mgplaw.com Jennifer Fraser Parrish parrish@mgplaw.com Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell dcodell@nclrights.org

Attorneys for Defendants-Appellants Phillip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov Gene Schaerr gschaerr@utah.gov John J. Bursch jbursch@wnj.com Monte Neil Stewart stewart@stm-law.com Ralph Chamness rchamness@slco.org Darcy M. Goddard dgoddard@slco.org Date: February 10, 2014. /s/ David R. Upham Attorney Name

29

Appellate Case: 13-4178

Document: 01019200230 01019200050

Date Filed: 02/10/2014

Page: 38

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, Avast Version 2014.9.0.2013, last updated February 9, 2014 and according to the program are free of viruses. /s/ David R. Upham

30