Appellate Case: 13-4178

Document: 01019201737

Date Filed: 02/12/2014

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Duane Morley Cox, Pro Se 4056 West 3830 South West Valley City, Utah 84120 Ph: 801-755-3578 UNITED STATES COURT OF APPEALS, TENTH CIRCUIT MOTION FOR LEAVE TO SUBMIT DEREK KITCHEN et. al. Plaintiffs and Appellee's v. GARY R. HERBERT et. al. Defendants and Appellants BRIEF OF AMICUS CURIAE IN SUPPORT OF UTAH'S CONSTITUTIONAL AMENDMENT NO. 3 Case: 13-4178 (UTAH)

COMES NOW: Duane Morley Cox, ProSe, requesting leave of the Court pursuant to Fed. R. App. 29, to file an Amicus Curiae Brief in support of Utah's Constitutional Amendment No. 3. MOVANT'S INTEREST: Utah's Amendment No.3 is asserted to protect Movant's 1st Amendment religious beliefs and the Free Exercise and does not create a "religious Test", but Movant argues that the "Decision" of the Court below improperly targets his 1stAmendment rights and those of his Church and Faith while creating a religious

Docket Reference Number: [10149098]

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Test" contrary to Article VI of the U.S. Constitution. AMICUS BRIEF IS DESIRABLE: Because the Court below was not adequately briefed on the issue of religious freedom, the findings of the "Decision" are not accurate as regards its impact upon religious institutions or their membership. "Although the State did not directly present an argument based upon religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about n1arriage." Decision, Pg 49 The Supreme Court has held that a "vigorous prosecution and a vigorous defense" are essential to sound judicial decision making. "Sound judicial decision making requires 'both a vigorous prosecution and a vigorous defense' and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument." Cf. Lander v. United States, 358 U.S. 169, 173 (1958) (declining to address 'an important and complex' issue ... and the court thought it 'should have a full argument before it dealing with the question.')" Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217, Pg. 2247 (1993) And the Supreme Court recently demonstrated the correct manner in which to deal with such a deficiency. "We appoint H. Bartow F arr III to brief and argue in support of the Eleventh Circuit's judgement with respect to severability, and Robert A. Long to brief and argue the proposition that the Anti-Injunction Act bars the current challenges to the individual mandate." Footnote in Nat. Fed. Of Ind. Businesses v. Sebelius, 567 U.S._, (2012) as given ou Pg 11 of Slip Opinion
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To avoid injustice and offense to the 1st Amendment and "religious Test" mandate of Article VI of the U.S. Constitution, the 101h Circuit must hear Movant's arguments. RELEVANCY: The Supreme Court has held that the "Operation" of a law is very important to consider, and the "Decision" did not deal with the effect of Amendment No.3 on the protection of 1st Amendment rights in Utah. Movant argues this is best seen by contrast with the success or failure in protecting 1st Amendment rights in other jurisdictions. Neither was adequately briefed. "Apart from the text, the effect of a law in its real operation is strong evidence of its object." Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217,Pg. 2228 (1993) Experience in New Jersey and New York is particularly relevant because these States have enacted substantive statutory protections for religious institutions, clergy, employees and related property which preclude lawsuits against these entities by same sex couples demanding participation or support of their same-sex "Marriages", which provisions "Operate" in an equivalent manner as Utah's Amendment No.3 to protect P 1 Amendment rights of the above entities. Unfortunately, the "Decision" of the Court below operates to nullify all such protections in every State of Nation while also creating
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a "religious Tesf' in violation of Article VI of the U.S. Constitution. Movant argues that the principle cited above must also be applied to the "Decision" of the Court below because its effect in "operation" will be to: a) usurp the powers reserved to the States by the 14th Amendment to regulate "Marriage" in a manner which protects 1st Amendment rights of religious belief and the free exercise thereof; b) violate the gth and 1oth Amendments to the U.S. Constitution; c) void all statutory or constitutional protections of 1st Amendment rights in Utah and all other jurisdictions because State protective enactments cannot defeat the 14th Amendment rights held to exist in the "Decision" of the Court below; d) establish the Courts as a "Superlegislature"; and e) create a "religious Test" in violation of Article VI of the U.S. Constitution. These issues are of paramount importance to the preservation of 1st Amendment rights for all religions and members thereof across America, and the avoidance of a "religious Test" which would preclude Movant and others of deeply held religious conviction from seeking or holding Public Office or positions of Public Trust in contradiction to Article VI of the U.S. Constitution. These issues are grounds for Reversal and must be heard.
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RELIEF SOUGHT: Leave of the Court to file an Amicus Brief. Name: Date:

Appellate Case: 13-4178

Document: 01019201738

Date Filed: 02/12/2014

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Certificate of Service

DEREK KITCHEN, individually MOUDI SBEITY, individually KAREN ARCHER, individually KATE CALL, individually LAURIE WOOD, individually, and KODY PARTRIDGE, individually,

Case No. 13-4178

Plaintiffs - Appellees v. GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah, Defendants - Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant.

Certificate of Service for Motion For Leave To File Brief of Amicus Curiae, Duane Morley Cox.

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CERTIFICATE OF SERVICE
I hereby certify that on 10 February 2014, that I filed by First Class Mail, Postage Prepaid, the foregoing to the 1Oth Circuit Court, and also by First Class Mail, Postage Prepaid to the following: Gene Schaerr, Special Assistant Utah Attorney General Brian L. Target, Chief Deputy Utah Attorney General, Stanford E. Purser, Assistant Attorney General Parker Douglas, Chief Deputy Attorney General Phillip S. Lott, Assistant Utah Attorney General P.O. Box 140856 160 East 3 00 South Salt Lake City, Utah 84114-0856 spurser@utah.gov 801-366-0100 Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD. P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 841 0 1 Ralph Chamness Darcy M Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, Utah 84190 Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 3 70 San Francisco, CA 941 02 Pg2 tomsic@mgplaw.com magleby@mpglaw .com parrish@mgplaw.com

rchamness@sl co. org dgoddard@slco.org

kkendall@nclrights.org sminter@nclrights. org dcodell@nclrights.org

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Jennifer L. Bursch, Amici Curiae Institute for Marriage and Public Policy Suite 100 24910 Las Brisas Road Murrieta, Calif. 92562 John J. Bursch Warner Norcross & Judd LLP Ste. 900 111 Lyon Street, NW. Grand Rapids, MI. 49503 Monte N. Stewart Ste. 100 12550 W. Explorer Dr. Boise, I d. 83 713

j bursch@fai th-freedom. com

jbursch@wnj.com

Stewart@stm-law.com

Date: 10 February 2014 Duane Morley Cox, P[Cl Se, Amici Curiae

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