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Appellate Case: 13-4178

No. 13-4178 _____________________________________________________________ In the United States Court of Appeals for the Tenth Circuit _____________________________________________________________ DEREK KITCHEN, et al., Plaintiffs-Appellees, v.

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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 SWENSON, as Salt Lake County Clerk, Defendant. __________________________________________________________________ On appeal from the U.S. District Court for the District of Utah, The Honorable Robert J. Shelby presiding, Case No. 2:13-CV-00217 RJS __________________________________________________________________ Reply Brief of Appellants Gary R. Herbert and Sean D. Reyes __________________________________________________________________ JOHN J. BURSCH Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste. 900 Grand Rapids, MI 49503 616-752-2474 MONTE N. STEWART 12550 W. Explorer Dr., Ste. 100 Boise, ID 83713 208-345-3333 GENE C. SCHAERR Special Asst Attorney General BRIAN L. TARBET Chief Deputy Attorney General PARKER DOUGLAS Chief of Staff & General Counsel 160 East 300 South Salt Lake City, UT 84114-0856 801-366-0100 (phone) gschaerr@utah.gov

ORAL ARGUMENT REQUESTED

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ADDITIONAL COUNSEL STANFORD E. PURSER PHILIP S. LOTT Asst Attorneys General 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES ...................................................................... v INTRODUCTION ...................................................................................... 1 I. THE DISTRICT COURTS INVALIDATION OF UTAHS MANWOMAN DEFINITION OF MARRIAGE UNDER WHAT IT CONSIDERED RATIONAL-BASIS REVIEW MUST BE REVERSED. .................................................................................. 7 A. Even if the district courts rational-basis framework is correct, Utah advanced several interests that are well-supported and clearly served by retaining its traditional marriage definition. .. 9 1. 2. 3. 4. Child-centric marriage culture ............................................. 12 Parenting arrangements ....................................................... 22 Procreation ............................................................................ 34 Avoiding religion-based strife and protecting popular sovereignty .......................................................................... 38

B. Rational-basis review does not require the state to justify the exclusion of same-sex couples from its marriage definition. ... 47 C. Baker retains vitality and is dispositive here. ............................ 57 II. THE DECISION BELOW CANNOT BE AFFIRMED ON ANY ALTERNATIVE HEIGHTENED SCRUTINY GROUNDS ADVANCED BY THE DISTRICT COURT OR PLAINTIFFS. .. 63

A. Rather than subjecting Utahs marriage laws to heightened scrutiny, Windsor supports their constitutionality. ................... 66 1. 2. 3. B. Plaintiffs reading of Windsor ignores its critical and repeated emphasis on State authority over marriage. ....... 66 Windsor does not support a finding of animus here. ......... 69 Windsor does not require recognition of same-sex marriages performed in other States. .................................................. 74 The district court erred in concluding that Plaintiffs have a fundamental due-process right to marry someone of the same sex. ............................................................................. 77

C. The district court erred in concluding that Utahs marriage laws discriminate on the basis of sex. ................................................. 89 iii

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D. There is no basis for heightened scrutiny based on sexual orientation ................................................................................... 93 III. THE DISTRICT COURTS DECISION IMPROPERLY IMPOSES FEDERAL HOMOGENIZATION RATHER THAN PERMITTING THE POLICY EXPERIMENTATION INHERENT IN VIBRANT FEDERALISM. ............................... 98

CONCLUSION ...................................................................................... 104 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ...................... 106 ECF CERTIFICATIONS ....................................................................... 107 CERTIFICATE OF SERVICE............................................................... 108

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TABLE OF AUTHORITIES Cases Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), ...................... 51 Agostini v. Felton, 521 U.S. 203 (1997) ............................................. 60, 63 Ammex Warehouse Co. v. Gallman, 414 U.S. 802 (1973) ....................... 61 Andersen v. King County, 138 P.3d 963 (Wash. 2006) ..................... 52, 93 Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ......................... 56 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................... 52 Baker v. Nelson, 409 U.S. 810 (1972) ........................................ 6, 8, 58, 59 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .................................. 73 Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ............. 70 Bigelow v. Virginia, 421 U.S. 809 (1975) ................................................ 76 Bishop v. U.S., __ F. Supp. 2d __, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) ............................................................................................... 91, 94 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ................................. 76 Boddie v. Connecticut, 401 U.S. 371 (1971) ............................................ 86 Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013) ...................... 89 Bushco v. Shurtleff, 729 F.3d 1294 (10th Cir. 2013) .............................. 73 Butler v. Wilson, 415 U.S. 953 (1974) ..................................................... 81 Bylin v. Billings, 568 F.3d 1224 (10th Cir. 2009) ................................... 41 Carey v. Population Servs. Int'l, 431 U.S. 678 (1977) ............................ 84 Carter v. U.S., 530 U.S. 255 (2000) ......................................................... 73 v

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Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) .................................................................................................. 51, 52, 56 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .......... 54 City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) .......... 69, 95 Conover v. Aetna U.S. Healthcare, Inc., 320 F.3d 1076 (10th Cir. 2003) .............................................................................................................. 60 Craig v. Boren, 429 U.S. 190 (1976) .................................................. 90, 96 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................ 51 Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................ 55 FCC v. Beach Commns, Inc., 508 U.S. 307 (1993) ........................... 55, 56 Franchise Tax Bd. v. Hyatt, 538 U.S. 488 (2003) ................................... 75 Frontiero v. Richardson, 411 U.S. 677 (1973)......................................... 90 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .............. .................................................................................................. 44, 52, 94 Heller v. Doe, 509 U.S. 312 (1993) .......................................................... 56 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ......................... 51, 72, 93 Hicks v. Miranda, 422 U.S. 332 (1975) ................................................... 62 Hodgson v. Minnesota, 497 U.S. 417 (1990) ........................................... 84 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ................................ 30, 62 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ........................... 51 In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) .......... 56 In re May's Estate, 114 N.E.2d 4 (N.Y. App. 1953) ................................ 75 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ..... passim vi

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Johnson v. Robinson, 415 U.S. 361 (1974)............................ 47, 48, 49, 50 Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) ..................... 81 Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ...................................... 56 Kadmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988) ........................... 41 Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) ........... 93 Lawrence v. Texas, 539 U.S. 558 (2003)...................................... 63, 71, 84 Lochner v. New York, 198 U.S. 45 (1905) ........................................... 2, 22 Lofton v. Sec'y of Dep't of Child & Fam. Servs., 358 F.3d 804 (11th Cir. 2004) ................................................................................... 30, 32, 34, 56 Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928) .................... 67 Loving v. Virginia, 388 U.S. 1 (1967).............................................. passim Mandel v. Bradley, 432 U.S. 173 (1977) ................................................. 63 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ....................... 54 Mills v. Habluetzel, 456 U.S. 91 (1982) ................................................... 96 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ................ 31 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ........................... 90 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ........................ 52 Murphy v. Ramsey, 114 U.S. 15 (1885) ................................................... 34 Myers v. Myers, 266 P.3d 806 (Utah 2011) ............................................. 17 Neely v. Newton, 149 F.3d 1074 (10th Cir. 1998) ............................. 58, 59 Nevada v. Hall, 440 U.S. 410 (1979) ....................................................... 74 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)................................ 7 vii

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Nguyen v. I.N.S., 533 U.S. 53 (2001) .................................... 33, 36, 39, 92 Nordlinger v. Hahn, 505 U.S. 1 (1992) ................................................... 39 Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75 (1998) .............. 89 Oregon v. Ice, 555 U.S. 160 (2009) ............................................................ 7 Parham v. J.R., 442 U.S. 584 (1979)....................................................... 32 Phillips Chem. Co. v. Dumas Sch. Dist., 361 U.S. 376 (1960) ................ 56 Plyler v. Doe, 457 U.S. 202 (1982) ........................................................... 98 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)............. 94, 95 Prince v. Massachusettes, 321 U.S. 158 (1944) ....................................... 51 Reed v. Reed, 404 U.S. 71 (1971) ............................................................. 90 Reno v. Flores, 507 U.S. 292 (1993) ........................................................ 32 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .......................................... 84 Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477 (1989) .................................................................................................... 63 Romer v. Evans, 517 U.S. 620 (1996) .................................... 54, 55, 67, 70 San Antonio Ind. Sch. Dist. v. Rodriquez, 411 U.S. 1 (1973) ... 97, 98, 102 Santosky v. Kramer, 455 U.S. 745 (1982) ............................................... 32 Schalk and Kopf v. Austria, App. No. 30141/04 (ECtHR, 24 June 2010) ............................................................................................................ 101 Seegmiller v. LaVerkin, 528 F.3d 762 (10th Cir. 2008) ........ 79, 80, 81, 84 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) .................. 72, 91 Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) ....................................... 76 viii

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Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) ........................... 56 Skinner v. Oklahoma, 316 U.S. 535 (1942)............................................. 34 Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003) .................................................................................................. 51, 52, 56 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ......... 76 Sussman v. Patterson, 108 F.3d 1206 (10th Cir. 1997) .......................... 41 Tigner v. Texas, 310 U.S. 141 (1940) ...................................................... 50 Truax v. Corrigan, 257 U.S. 312 (1920) .................................................. 41 Tully v. Griffin, 429 U.S. 68 (1976)................................................... 60, 61 Turner v. Safley, 482 U.S. 78 (1987) ....................................................... 86 U.S. Dept of Agriculture v. Moreno, 413 U.S. 528 (1973) ................ 54, 67 United States v. Virginia, 518 U.S. 515 (1996) ............................... passim United States v. Windsor, 133 S. Ct. 2675 (2013) ........................... passim Vance v. Bradley, 440 U.S. 93 (1979) ................................................ 31, 56 Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979) .............................................................................. 61 Washington v. Glucksberg, 521 U.S. 702 (1997) ............................. passim Weinberger v. Rossi, 456 U.S. 25 (1982) ................................................. 73 West Coast Hotel v. Parrish, 300 U.S. 379 (1937)..................................... 2 Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) ............................. 73 Williams v. North Carolina, 317 U.S. 287 (1942) ................................... 13

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Statutes 8 U.S.C. 1738C...................................................................................... 74 Utah Code 30-1-4.1 ............................................................................... 10 Utah Code 30-1-4.1(2)........................................................................... 10 Utah Code 75-2a-101 et seq. ............................................................... 10 Rules Fed. R. App. P. 32(a)(5) ......................................................................... 106 Fed. R. App. P. 32(a)(6) ......................................................................... 106 Fed. R. App. P. 32(a)(7)(B) .................................................................... 106 Fed. R. App. P. 32(a)(7)(B)(iii) ............................................................... 106 Other Authorities Akhil Reed Amar, Americas Constitution: A Biography (New York: Random House 2005) ......................................................................... 100 Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147 (1998) ............................................................... 75 Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage (Alan Hawkins et al. eds., 2002) ................. 18 Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case for Conscientious Refusals, 27 Childrens Legal Rights J. 1 (2007) ....................................................................... 43 David Blankenhorn, The Future of Marriage (2007).............................. 14

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David Popenoe, Life without Father: Compelling New Evidence that Fatherhood and Marriage are Indispensable for the Good of Children and Society (1996) ................................................................................ 29 Earl M. Maltz, Civil Rights, the Constitution and Congress, 1863-1869, (1990) .................................................................................................. 100 Emily Esfahani Smith, Washington, Gay Marriage and the Catholic Church, Wall Street Journal (Jan. 9, 2010)......................................... 43 Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013) ................................ 100 Helen Reece, Divorcing Responsibly (2003) ............................................ 13 Institute for American Values (Dan Cere, principal investigator), The Future of Family Law: Law and the Marriage Crisis in North America (2005) ..................................................................................... 14 IRS Revenue Ruling 2013-17 .................................................................. 11 John R. Searle, Making the Social World: The Structure of Human Civilization (2010) ................................................................................ 13 Lynn D. Wardle, From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations, 2008 B.Y.U. L. Rev. 1855 .................................... 75 Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, Brit. J. Am. L. Studies, Vol. 1, Issue 2 (Summer/Fall 2012) ....................................... 31 Michael Hayes, Polygamy Comes Out of the Closet: The New Strategy of Polygamy Activists, 3 Stan. J. Civ. Rts. & Civ. Liberties 99 (2007) .... 89 Michelle Boorstein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010) ..................................................................................................... 43 xi

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Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Poly 313, 337 (2008) ............................................................................................. 16 Monte Neil Stewart, Marriage, Fundamental Premises, and the California, Connecticut, and Iowa Supreme Courts, 2012 B.Y.U.L. Rev. 193 ................................................................................................ 19 Same-Sex Marriage and Religious Liberty: Emerging Conflicts 124 (Douglas Laycock et al. eds., 2008) ...................................................... 44 Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought (2011) ..................................................................................... 16 Stephen G. Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005) ............................................................................. 102 Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look Natl Gay & Lesbian Q., Fall 1989 ...................................... 14 W. Bradford Wilcox et al., Why Marriage Matters: Thirty Conclusions from the Social Sciences (3rd ed. 2011)................................................ 28 Walter R. Schumm, What Was Really Learned From Tasker & Golomboks (1995) Study of Lesbian & Single Parent Mothers?, 95 Psych. Reports 422 (2004) .................................................................... 30

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INTRODUCTION The attempts by Plaintiffs and their amici to defend the district courts decision highlight the difficult policy choice Utah faces in determining whether to redefine marriage to accommodate same-sex couples: Except for a few on both fringes, no one wants gays, lesbians and their families to feel stigmatized or demeaned, and no one wants to destroy or undermine a child-centric, man-woman marriage culture that has provided enormous benefits to children. But the policy quandary posed by same-sex marriageand countless more domestic-relations issuesis precisely why the Supreme Court, in a long series of decisions culminating in United States v. Windsor, 133 S. Ct. 2675 (2013), has consistently emphasized that domestic-relations is a virtually exclusive province of the States, id. at 2691, one that must be protected from unnecessary federal intrusion. Id. at 2692. That is also why a decision affirming the district court would not be the Loving of our agea narrow decision enforcing a clear Fourteenth Amendment command against one type of naked racial discrimination. Loving v. Virginia, 388 U.S. 1 (1967). Rather, it would be more like the 1

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Lochner of our agean unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional State authority. Lochner v. New York, 198 U.S. 45 (1905), overruled by Ferguson v. Skrupa, 372 U.S. 726 (1963). It would imposeby judicial fiat rather than democratic processesthe novel principle that marriage is whatever emotional bond any two (or more) people say it is. It would thereby enshrine in federal law the corrosive principle that moms and dads are interchangeable and, ultimately, irrelevant to children. It would also unfairly dismiss the majorities in more than half of the Statesand numerous judgesas irrational bigots. And it would do so under the authority of a nearly 150-year-old Amendment that, until recently, had never been understood by any judge or scholar to mandate that marriage be redefined to include same-sex couples. These dangers are highlighted by the failure of Plaintiffs and their amici to come to grips with two critical deficiencies in the district courts reasoning. The first is its assertion that Utah had not demonstrated a rational reason to reject Plaintiffs proposed redefinition of marriage in favor of the traditional gendered definition. 2

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Decision at 32. In fact, Utah had submitted hundreds of pages of social science and other evidence demonstrating that such a redefinition would subject Utahs existing and future children to serious long-term risks, including: (1) a risk of increased fatherlessness and motherlessness, with the emotional, social and economic damage such a deprivation imposes on children; (2) a risk of reduced birth rates, with the demographic and economic damage that would impose on all future children; and (3) more generally, a risk of increased self-interest in parental decision-making on a range of issues, including not just romantic relationships and procreation, but also recreation, career choices and living arrangements. In this Courtin nearly 60 detailed pagesUtah elaborated these and other risks to children that would likely flow from the redefinition mandated by the district court. See Opening Brief (OB) 1-3, 25-28, 50100. Rather than addressing these risks head on, Plaintiffs merely point to opposing risks, primarily the burden Utahs marriage laws may impose on Plaintiffs families. Indeed, Plaintiffs argue that Utah has no legitimate interest (Answer Brief (AB) (74 emphasis added) in 3

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such things as increasing the likelihood that other children will be raised by a mom and a dad, or in encouraging procreation or channeling it to married couples. But that argumentand the district courts similar conclusionsare foreclosed by a host of Supreme Court decisions. And because Utahs decision to retain its marriage definition is necessary to avoid the serious risks that would result from jettisoning it, that decision satisfies not just rational-basis review but any form of heightened scrutiny. The second critical deficiency in the district courts analysis is its selective reading of Windsor. Like the district court, Plaintiffs simply ignore Windsors reaffirmation of the States broad[ ] authority to regulate the subject of domestic relations, Id. at 2691, including their essential authority to define the marital relation. Id. at 2692. True, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) infringed the Fourteenth Amendment rights of the same-sex couples in that case, in part because they were entitled to equal dignity and because section 3 demean[ed] them compared to others. Id. at 2693, 2695. But the Supreme Courts conclusions were expressly 4

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premised on a single critical fact: the couples in Windsor had already been officially recognized as married by the State of New York. Id. at 2695-96. That is why the Court emphasized that [t]he States power in defining the marital relation [wa]s of central relevance to the outcome of the case. Id. at 2692. And that is why the Court emphasized that both its holding and its rationale were limited to samesex couples who were lawful[ly] marri[ed] under State law. Id. at 2696. Although other district courts (but no appellate courts) have interpreted Windsor like the district court and the Plaintiffs, they are mistaken in cherry-picking snippets from that decision while ignoring its full rationale, including the federalism principles it reaffirms. By contrast, Utahs reading of Windsor accounts for the entire decision, including its reminder that State authority over domestic relations is subject to constitutional guarantees. Id. at 2692. Like the district court, moreover, the Plaintiffs and their amici ignore the reality that a federal judicial mandate requiring same-sex marriageon the tenuous constitutional theories advanced here 5

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would upend the federalist structure built into our constitution and carefully guarded by the Supreme Court. Indeed, an affirmance would signal a new system of unequal sovereigntyin which States would retain their traditional authority over domestic relations and other matters only as long as they hew to the evolving views of opinion leaders. But States would effectively lose that authorityand with it an enormous portion of their police powerswhenever they choose to reject those trends. Such a constricted view of State sovereignty is foreclosed by centuries of Supreme Court federalism doctrine. See, e.g., Brief of Center for Constitutional Jurisprudence at 5-13; Brief of Utah Counties at 2-13. The only resolution of the same-sex marriage issue consistent with that doctrineand with both Windsor and Baker v. Nelson, 409 U.S. 810 (1972)is that the several States remain free to adopt same-sex marriage or to retain the traditional definition, in either case without federal intrusion. 133 S. Ct. at 2692. As Justice Brandeis famously put it in urging reversal of Lochner, and as the Supreme Court has often reiterated since, [i]t is one of the happy incidents of the federal 6

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system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 386-87 (1932) (Brandeis, J., dissenting); accord, e.g., Oregon v. Ice, 555 U.S. 160, 171 (2009). That principle necessarily means that a States decision not to try [a] novel social . . . experiment like same-sex marriage must be equally respected. I. THE DISTRICT COURTS INVALIDATION OF UTAHS MANWOMAN DEFINITION OF MARRIAGE UNDER WHAT IT CONSIDERED RATIONAL-BASIS REVIEW MUST BE REVERSED. Utahs opening brief showed that, in light of Utahs legitimate interests in adhering to its marriage definition and the States broad[] authority to regulate the subject of domestic relations, Windsor, 133 S. Ct. at 2691, Utah has the authority to maintain that long-held definition for three independent reasons: 1. Baker binds lower federal courts, and forecloses the district courts reasoning and conclusion. OB 22-23, 28-36. 2. The Fourteenth Amendment does not require the several States to uniformly recognize same-sex marriages, either as a matter of due process or of equal protection, under the controlling rational-basis standard. OB23-25, 36-50. 7

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3. Even if some form of heightened scrutiny applied, Utahs marriage definition is sufficiently tailored to Utahs legitimateeven compellinginterests, especially its powerful interests in promoting the welfare of children. OB25-28, 50-101. Plaintiffs arguments do not impugn these reasons. But they do highlight the need to distinguish carefully between the district courts central holdings, which were based on what the district court deemed to be rational-basis review, and other, alternative arguments for invalidating Utahs definition of marriageall based on some form of heightened scrutiny. This section explains why, notwithstanding Plaintiffs attempts to save it, the district courts rational-basis holding must be reversed, while Section II explains why arguments based on heightened scrutiny fail as well. As explained in the opening brief (at 46-49), the district court purported to apply a form of rational-basis review that effectively placed on Utah the burden of justifying the exclusion of same-sex couples from the States definition of marriage. See Decision at 42-43. While that approach misunderstands the proper rational-basis review

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standard, the district courts decision must be reversed even under its erroneous standard. A. Even if the district courts rational-basis framework is correct, Utah advanced several interests that are wellsupported and clearly served by retaining its traditional marriage definition. As the opening brief stressed (OB1-3), Utahs decision whether to redefine marriage poses a difficult policy choice between the personal individual interests of same-sex couples and the long-term interests of all the States children, present and future. Plaintiffs do not acknowledge the policy dilemma or the risks that expanding the marriage definition poses to children generally. Instead, without substantively engaging Utahs extended policy case (OB50-100), Plaintiffs claim the current definition denies them the status and financial benefits of marriage and seriously interferes with such things as their ability to publicly express or formalize their commitment to one another, establish a home and family, join their lives together, care for one another in times of illness and crisis, . . . provide for one another financially, [and] make important joint decisions. AB3-4. Each argument overstates Plaintiffs burdens and 9

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ignores other features of Utah law,1 Utah culture,2 and federal law3 that protect Plaintiffs ability to order their private lives as they wish.

Utah law does not treat same-sex couples as legal strangers or prevent them from join[ing] their lives together, car[ing] for one another in times of illness and crisis, . . . provid[ing] for one another financially, [or] mak[ing] important joint decisions. AB3-4. When Utahs current marriage statute, Utah Code 30-1-4.1, was enacted, a provision was added making clear that it would not impair[] any contract or other rights, benefits, or duties that are enforceable. Utah Code 30-1-4.1(2). In floor debates the bill sponsor related that questions had been asked about the impact of the proposed statute on joint ownership of property by two men or two women. See SB0024 Floor Debate Audio, available at http://www.le.state.ut.us/jsp/jdisplay/billaudio.jsp?sess= 2004GS&bill=sb0024s01&Headers=true. Subsection (2) was added to address those concerns and to clarify that the bill was not intended to cause harm to other relationships. Among other rights, same-sex couples are free to contract with each other, to jointly own property, to devise property to one another, andjust as married couples with an Advance Health Care Directive, to name each other as the authorized person to make health care decisions. See Utah Code 75-2a-101 et seq., Advance Health Care Directive Act. A marriage license is not required.
1

Plaintiffs say (at 3) that Utahs marriage laws leav[e] them with no way to publicly express or formalize their commitment to one another or assume the duties and responsibilities that are an essential part of married life and that they . . . would be honored to accept. But five of the 25 largest faith communities in Utah officially accept same-sex unions. See OB 91 n.59. They, and a number of other faith communities, even offer religious public commitment ceremonies for same-sex couples. See Episcopal Diocese of Utah Offers Blessings of Same-sex Unions, Casper Star-Tribune (May 19, 2004); (Episcopal, Reform Judaism, and Unitarian Universalist ceremonies); see also
2

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Plaintiffs only response to Utahs policy concerns is the bare assertion that they are hypothetical and speculative. AB4, 47, 83, 86. There is of course a small element of truth to that charge: When one is considering a major transformation of an ancient institution

Brief of Episcopal Diocese of Utah, et al., at 13-17 (listing same-sex religious marriage and commitment practices of the Quakers; Evangelical Lutherans; Unitarian Universalists; Conservative, Reform, and Reconstructionist Judaism; United Church of Christ; and the Episcopal Church). In addition, same-sex couples residing in Salt Lake City or Salt Lake County are free to file an official declaration of mutual commitment. See Salt Lake County Ordinances 2.10.010, et seq., see also Salt Lake City Ordinances 10.03.010, et seq. Again, a marriage license is not required. Similarly, nothing in Utah law prevents same-sex couples from receiving federal marriage benefits. Under recently adopted federal guidelines, couples married outside Utah such as Appellants Archer and Call, are entitled to all or virtually all federal, marriage benefits. Those include tax benefits (see IRS Revenue Ruling 2013-17 at 9); Social Security benefits (see Social Security Administration FAQs available at https://faq.ssa.gov/link/portal/34011/34019/Article/3547/Do-I-qualify-forbenefits-if-I-live-in-a-place-that-prohibits-or-does-not-recognize-same-sexmarriages-or-other-legal-same-sex-relationships and U.S. Dept. of Justice Office of the Attorney General Memorandum - Department Policy on Ensuring Equal Treatment for Same-Sex Married Couples (02/10/2014); U.S. Dept. of Health and Human Services Press Release (08/29/2013); and military spousal and retirement benefits (see U.S. Dept. of Defense Press Release (06/26/2013). Utah law poses no impediment to Plaintiffs ability to receive or use those benefits.
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based on 10 years experience in a handful of States and nations, it is impossible to predict the effects with complete certainty. But we know enoughfrom the history of analogous experiments, from social science, and from common senseto identify with reasonable clarity the risks that redefinition would pose. Those risks include: (1) pushing the States existing child-centric marriage culture toward a more adultcentric model; (2) more fatherless and motherless parenting; (3) reduced birth rates; and (4) increased social strife. 1. Child-centric marriage culture Plaintiffs do not dispute that, like all fundamental social institutions, the institution of marriage rests upon widely shared public meanings, many of which serve as powerful social norms. OB 53-56.4 Nor do they dispute that a central norm of marriage has long been the

See also, e.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942) ( [T]he marriage relation [is] an institution more basic in our civilization than any other.); John R. Searle, Making the Social World: The Structure of Human Civilization 90-122 (2010), App. 1348-58; Helen Reece, Divorcing Responsibly 185 (2003).
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union of a man and a woman, or that that institutional and legal meaning subtly influences and transforms individuals, supplying identities and ways of behaving and relating to others. OB 7-9, 52-53, 56-60. Indeed, this truth is illustrated by Plaintiffs own amicus, whose brief underscores the laws tremendous power to change marriages public meaning over time. See Brief of Historians of Marriage at 21-28. The marriage institutions communicative function. Plaintiffs also do not dispute that, when it comes to what the marriage institution communicates, the institution of husband-wife marriage is profoundly different from the genderless marriage institution. OB5660.5 The big difference recognized and candidly acknowledged by experts on both sides of the debate is what the opening brief captured
See also, e.g., Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look Natl Gay & Lesbian Q., Fall 1989, at 19 (statement by same-sex marriage supporter that enlarging the concept of marriage would necessarily transform it into something new.); David Blankenhorn, The Future of Marriage 167 (2007) (Future) (I dont think there can be much doubt that this post-institutional view of marriage constitutes a radical redefinition. Prominent family scholars on both sides of the dividethose who favor gay marriage and those who do notacknowledge this reality.).
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with the short-hand phrases child-centric and adult-centric, and what Justice Alito in Windsor captured with the short-hand phrases conjugal and consent-based, 133 S. Ct. at 2718 (Alito, J., dissenting, with no disagreement from his colleagues on this point)or what most scholars call the close personal relationship model.6 It is undisputed that this model is focused principally on the needs of adults and that it provides the conceptual underpinning of a genderless marriage definition and the legal arguments for it. Confronted with these realities, Plaintiffs claim (at 69) that the State has offered no legal, factual, or logical reason to believe that permitting same-sex couples to marry will affect the attitudes, beliefs, or conduct of other couples, or of society at large, toward marriage and parenting. But that simply ignores Utahs extended explanation of this very point. See OB72-82.
See, e.g, Institute for American Values (Dan Cere, principal investigator), The Future of Family Law: Law and the Marriage Crisis in North America 78 (2005), App. 570.
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How the two models bear on adult interests. Plaintiffs also incorrectly claim (at 70-71) that the States argument posits a false dichotomy between the role played by marriage in protecting childrens interests and adults interests, and that Utahs view of marriage is a zero-sum game that pits the needs of children against the desires of adults. But the opening brief makes clear that Utahs view of marriage provides social benefits to both children and adults. The child-centric view encompasses, for example, love and friendship, security for adults and their children, economic protection, and public affirmation of commitment as well as the ideal of a partnership of equals with equal rights, who have mutually joined to form a new family unit, founded upon shared intimacy and mutual financial and emotional support.7 But Utahs marriage model also valorizes the role of fatherhood, motherhood, gender complementarity in child-rearing, and mutual
Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Poly 313, 337 (2008) (footnotes omitted).
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dependence. That model is thus profoundly different from the model underlying same-sex unions and other adult relationship structures an understanding based primarily on adult emotional bonds and commitments. See Brief of Robert P. George at 4-14.8 Plaintiffs do not deny that profound difference. Instead they attack a straw man by invoking (at 71-73) an academic article, a trade association amicus brief, a Utah Supreme Court decision (Myers v. Myers),9 and a number of Supreme Court decisions (Turner, Griswold,

See also Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought 5, 253-73 (2011).
8

Regarding Myers v. Myers, 2011 UT 65, 266 P.3d 806, Plaintiffs say (at 73 n.20) that [t]he States description of marriage bears no relation to the Utah Supreme Courts own recent explanation of what constitute the general hallmarks of marriage. But in fact, the issue in Myers was whether a particular cohabitation relationship was a marriage-like cohabitation. In the passage Plaintiffs cite, the court said cohabitation could be a relationship akin to a marriage and looked for general hallmarks not essentials or elementsof marriage. Thus, the court was looking for qualities that marriage and nonmarital relationships share and accordingly came up with residence, intimacy, shared decisionmaking and shared expenses. The court did not say these are the general hallmarks of marriage, but simply that there are some general features courts would
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and Lawrence), each offered to refute what Utah does not deny, namely that marriage advances certain important interests of adults. Utahs point, rather, is that redefining marriage based only on adult emotional bonds will suppress other important aspects of Utahs existing child-centric model. That social reality also exposes the error in Plaintiffs assertion (at 74) that, compared with husband-wife marriages, stable marriages of same-sex couples are equally indispensable to the welfare of children and society. As Utahs initial brief demonstrated (at 55), a given society can have only one social institution denominated marriage. Consequently, what the Plaintiffs seek is to enlist the full force of the federal judiciary to suppress an existing marriage institution and to

consider when determining whether a non-marital relationship is akin to marriage. 2011 UT 65 at 21-24.

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mandate in its place a new one10 with different norms and fewer benefits for all the States children. How the two models bear upon childrens interests. Likewise flawed is Plaintiffs argument (at 4-5, 71-72) based on the welfare of the children of same-sex couples. Their welfare is of great

Scholars have understood this reality since same-sex couple marriages were first seriously proposed. As one respected analysis noted:
10

Marriage is an existing social institution [or] social good. As Joseph Raz wrote regarding same-sex marriage, When people demand recognition of gay marriages, they usually mean to demand access to an existing good. In fact they also ask for the transformation of that good. For there can be no doubt that the recognition of gay marriage will effect as great a transformation in the nature of marriage as that from polygamous to monogamous or from arranged to unarranged marriage. Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage 11213 (Alan Hawkins et al. eds., 2002). In fact, what Plaintiffs seek would result in an even greater change in the nature of marriage than polygamy or arranged marriages. In any event, even though the law may want to usher same-sex couples into the now-existing marriage institution, it does not have the power to do soalthough it clearly has the power to suppress that institution. See, e.g., Monte Neil Stewart, Marriage, Fundamental Premises, and the California, Connecticut, and Iowa Supreme Courts, 2012 B.Y.U.L. Rev. 193, 239-40.

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importance to the State. But the Plaintiffs argument incorrectly assumes there is only one valid child-welfare endeavor, namely, the need to protect existing families and existing children. AB4-5 (emphasis in original). In fact, Utah engages in two important childwelfare endeavors. One is the current provision of benefits to individual children, directly or through their care-givers. The other is directed at future childrenspecifically, maximizing the number who will be reared by a mother and father, and who will have the benefits of gender complementarity in their upbringing. That second endeavor also refutes Plaintiffs argument (at 69) that all Utah is doing is needlessly stigmatizing and humiliating children of same-sex couples. Plaintiffs argue that Utah ignores the approximately 3,000 Utah children currently being raised by same-sex parents. Id. In fact, Utah does not purposefully ignore any of its

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approximately 890,000 children.11 Utah is concerned with the welfare of all its current and future children. Utah is simply reserving the title and benefits of marriage for those relationships that conform to the model Utah believes best promotes the welfare of all the States children, present and future. The relevance of non-procreating couples. Finally, like the district court, Plaintiffs argue (at 70) that Utahs marriage laws are not really about the welfare of children and/or are grossly under inclusive because they allow marriages of couples who cannot or will not procreate. However, the vast majority of man-woman coupleseven elderly coupleshave at least one member who is capable of procreation. Accordingly, even as to those couples, man-woman marriage serves the States interest in channeling procreation into

See Census Bureau State & County QuickFacts -Utah, available at http://www.quickfacts.census.gov/qfd/states/49000.html (2012 estimate of Utah children under 18: 887, 865).
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stable relationships. And it would be unduly intrusive and impractical to attempt to determine who is and is not capable of reproduction. Moreover, as explained more fully in the Brief of Robert P. George et al. (at 27-29), the non-procreating couples argument ignores the fact that marriage is a social institution. Each time a man-woman couple builds a marriage regardless of their reproductive intentions or abilities that subtly strengthens the husband-wife marriage institution and thereby enhances its power. By contrast, marriage by a same-sex couple undermines the social norms that Utah seeks to promoteespecially the importance of each child being raised by a mom and a dad. Thus Utahs line-drawing is neither over-inclusive nor under-inclusive, but tailored to Utahs legitimate purpose. In any event, for constitutional analysis, the appropriate question is: Who chooses what the marriage institution will communicate in Utah? Our constitutional jurisprudence, including Windsor, readily answers that question: the State, through democratic processes. And because redefining marriage in genderless terms would lead it to communicate a more adult-centric and less child-centric message to all 21

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Utah citizenswith manifold harms to childrenUtahs decision to reject the redefinition ordered by the district court satisfies any kind of rational-basis review. 2. Parenting arrangements Utah also has a more specific interest in maximizing the likelihood that each child will grow up in the best possible parenting arrangement. OB62-69. Plaintiffs do not dispute Utahs data showing that children who grow up with two married parentswhich (for heterosexual parents) will mean both a father and a mothergenerally do better on a variety of measures than children who grow up with a single parent: they have lower delinquency rates, lower rates of unwed parenthood, lower rates of substance abuse, etc. See id. 66-69. Plaintiffs respond that Utahs interest in maximizing the likelihood that children are raised by a mom and a dad rather than a same-sex couple is constitutionally illegitima[te], AB76, and that it is undermined by studies purporting to show an equivalence between same-sex parenting and opposite-sex parenting. But because Utah also has a powerful interest in parenting by heterosexuals, which is strongly 22

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affected by the public meaning of marriage, these arguments are in large part irrelevant to Utahs interests in maintaining its traditional definition of marriage. And to the extent those arguments are relevant, they are incorrect. Parenting by Heterosexuals. Utah has already identified (at 72-80) a number of distinct reasons why redefining marriage in genderless terms would increase the likelihood that a child will be raised without a father or a mother. Many of these arise from marriages traditional function in channeling sex between heterosexual men and women into stable relationships, thereby increasing the likelihood that the children of those unions will be raised by both a father and a mother.12 And, as explained in the opening brief (at 72-75),

E.g., Robert George et al., What is Marriage? Man and Woman: A Defense 38-39 (2012), App. 1720-21; James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 41 (2002), App. 1050, (Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.); Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) (the institution of marriage was created for the purpose of
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most of them arise from the social messages that redefining marriage in genderless terms would communicate, especially to heterosexuals: i. Procreation is not intrinsically connected to marriage. By breaking the traditional social link between marriage and procreation, the redefinition of marriage would send the message that there is no particular reason to get married to have children. ii. Biological ties dont matter. This may lead a busy or irresponsible biological parent (usually a father, but sometimes a mother), to assume that, so long as someone is taking care of the child, there is no need for him or her to be involved. iii. Gender is fungible. For parenting, this means that no particular benefit comes from having both a mother and a father. This too may lead a busy or irresponsible parent to think it isnt particularly important for him to be actively involved in parenting. iv. Adult interests are paramount. This too may lead a busy or irresponsible parent to believe its appropriate to sacrifice his childs welfare to his own needs for independence, free time, etc. For reasons explained in the opening brief, each of these messages would likely lead to more children of heterosexuals being raised without

channeling heterosexual intercourse into a structure that supports child rearing).

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one or both parentsusually the father. Specifically, these messages would lead to more children being born outside of marriagewhich would dramatically increase the likelihood that the child would be raised without at least one parent. The last three messages would also lead to more divorcewhich in turn would lead to more children losing the active influence of one or both parents. See OB72-75. These risks to children find ample support, not only in the literature cited in the opening brief, but also in the amicus brief filed by social science Professors Hawkins and Carroll (Hawkins-Carroll Brief). That brief draws a compelling parallel between the unintended consequences of no-fault divorce, which harmed children by weakening marriage and fatherhood, and the harms that will likely resultto the children of heterosexualsfrom redefining marriage in non-gendered terms. Then as now, proponents of no-fault divorce arguedlike the Plaintiffs herethat these harms were speculative and that letting unhappy marriages end more easily would help children and have no effect on other marriages. Hawkins-Carroll Brief at 10-11, 16. But the proponents were wrong: As Professors Hawkins and Carroll point out 25

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(at 13-15), no-fault divorce changed the social meaning of marriageby weakening the traditional norm of marital permanencyand thus led to many more divorces, and fatherless children, than anyone expected. Similarly, Professors Hawkins and Carroll note that redefining marriage in genderless terms would signal to heterosexual men, especially, that they are optional, not central to the well-being of their children, and would thus tend to alienate some heterosexual men from the institution of marriage. Id. at 18-23. Abandoning the gendered definition of marriage would thus likely result in fewer and shorter marriages of heterosexuals, less parenting by heterosexual fathers, more conception by heterosexuals outside of marriage, and less selfsacrificing by heterosexual fathers. Id. at 23-28.13

Utah also identified other mechanisms by which redefining marriage in genderless terms would lead to more children being raised without a father or mother. For example, a court-ordered redefinition of marriage could lead legislatures to privatize the institutionby separating it entirely from government and leaving it with private institutions like churches or social clubs. This in turn would lead to fewer marriages among those who have no strong ties to these private institutions. OB78-80. As urged by some advocates of same-sex marriage, redefining marriage in genderless terms
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Plaintiffs do not dispute any of the mechanisms discussed in Utahs opening brief, and amplified by Professors Hawkins and Carroll, by which redefining marriage would result in more children of heterosexuals being raised by single parents. Although the Plaintiffs deny (at 74-75) that the State has a legitimate interest in encouraging man-woman parenting for the children of gays and lesbians, they cannot and do not dispute that the State has a legitimate interest in promoting man-woman parenting by heterosexuals. This interest aloneand the fact that Utahs chosen marriage definition serves that interestis sufficient to sustain Utahs laws under any form of rationalbasis review.

could also lead to other innovations like group marriage. OB77. Such arrangements would likely lead to more children who will not be raised by one or both of their biological parents. Such a redefinition would also remove the gentle encouragement the law currently provides to bisexual persons (including people who consider themselves principally gay or lesbian) to form families and raise children with members of the opposite sex rather than members of the same sex. See, e.g., Brief of Prof. David Boyle at 6-17 (citing authorities).

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Same-sex parenting. Rather than challenge the dispositive points, Plaintiffs devote most of their energy to denying that gender complementarity, i.e., parenting by both a mom and a dad rather than two parents of the same sex, has any positive impact on children. But as Utahs opening brief thoroughly documents (at 62-69), children are most likely to thrive economically, socially, and psychologically in this family form. W. Bradford Wilcox et al., Why Marriage Matters: Thirty Conclusions from the Social Sciences 11 (3rd ed. 2011), App. 437. And, as the amicus brief filed by several social science professors confirms, on average, children in families headed by two biological parents do better than children raised by same-sex parents. See Brief of Social Science Professors at 4-12.14 That is due in large part to the fact that gender-differentiat[ion] . . . is important for human development. . . . . The two sexes are different to the core, each is necessary culturally and biologically for the optimal development of a human
This amicus brief also responds fully to Plaintiffs criticisms (at 80) of the studies by Professor Regnerus. See id. at 21-27.
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being. David Popenoe, Life without Father: Compelling New Evidence that Fatherhood and Marriage are Indispensable for the Good for Children and Society 146, 197 (1996) App. 1063. These findings echo the Supreme Courts observation that the two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (internal quotation marks omitted). Faced with this evidence, Plaintiffs and their amici cite a few contrary studies based on small, non-random, non-representative samples. But as the Brief of Social Science Professors explains, the vast majority of the[se] studies were based on samples of fewer than 100 parents (or children), and typically representative only of welleducated, white women (parents), often with elevated incomes. These are hardly representative of the lesbian and gay population raising children, and therefore not a sufficient basis to make broad claims

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about child outcomes of same-sex parenting structures. Id. at 2.15 Accord Lofton v. Secy of Dept of Child & Fam. Servs., 358 F.3d 804, 825 (11th Cir. 2004) (noting significant flaws in same-sex parenting studies); Tr. of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (Kennedy, J., recognizing that the sociological information is new. . . . We have five years of information to weigh against 2,000 years of history or more.) So why do biological moms and dads make a difference? One reason is that they provide the gender complementarity that has proven so valuable to children. See OB63-68. Another is that a biological connection tends to produce a stronger commitment to the welfare of the child; hence a child is generally better off if she has two parents with a biological connection rather than one. See, e.g., Matthew B.
The concern about drawing conclusions from small sample sizes is doubly important when there may be motivation to confirm a null hypothesis i.e., that there are in fact no statistical differences between groups. Brief of Social Science Professors at 14-15, 19 (citing and quoting Walter R. Schumm, What Was Really Learned From Tasker & Golomboks (1995) Study of Lesbian & Single Parent Mothers?, 95 Psych. Reports 422, 423 (2004)).
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OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, Brit. J. Am. L. Studies, Vol. 1, Issue 2 at 31 (Summer/Fall 2012), App. 1570. No other parent-child relationship is quite the same. In any event, the mere fact that there is a raging debate among recognized social scientists on this issue means that Utahs position is at least rationaland therefore entitled to prevail under the rationalbasis standard. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (A rational basis challenge cannot prevail for long as . . . the question is at least debatable. (internal footnote, citation and quotation marks omitted)); Vance v. Bradley, 440 U.S. 93, 112 (1979) (It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. (internal quotation marks omitted)). Hamstrung by social science, Plaintiffs are forced to argue that Utahs interest in gender complementarity in parenting is illegitimate, at least as to gay and lesbian citizens. AB74. Not so. As the Eleventh Circuit has pointed out, [i]t is hard to conceive an interest more 31

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legitimate and important than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society. Lofton, 358 F.3d at 819. That is why the Supreme Court has always presumed [biological parents] to be the preferred and primary custodians of their minor children. Reno v. Flores, 507 U.S. 292, 310 (1993). It is why the Court has emphasized that the law historically . . . has recognized that natural bonds of affectioni.e., biological connectionslead parents to act in the best interests of their children. Parham v. J.R., 442 U.S. 584, 602 (1979). And it is why the Court has described the foreclosure of a newborn child's opportunity to ever know his natural parents as a los[s] [that] cannot be measured. Santosky v. Kramer, 455 U.S. 745, 760-61 n.11 (1982). The Supreme Court also affirms the general value of gender diversity. It recognizes that, even though gender stereotypes are disfavored, genuine biological differences remain important. See, e.g., Nguyen v. I.N.S., 533 U.S. 53, 73 (2001) (Kennedy, J., for the Court) (To fail to acknowledge even our most basic biological differences . . . 32

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risks making the guarantee of equal protection superficial and so disserving it.). Thus, although [s]upposed inherent differences are no longer accepted as a ground for race or national origin classifications [p]hysical differences between men and women . . . are enduring: [T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996). (internal quotation marks omitted). This principle applies with equal force to families. Even before Utah became a State, the Supreme Court emphasized the governments necessary interest in families arising from husband-wife marriages: [C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization. Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis added). That is no doubt why the Court has repeatedly described husband-wife marriage as fundamental to our very existence and survival. Loving, 388 U.S.

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at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). Plaintiffs offer no response to these crucial statements and holdings.16 In short, Utah has a legitimate interest in maximizing the likelihood that every child will be raised by a mom and a dad. And for all of the distinct reasons described aboveincluding several that apply principally to heterosexual parentsUtahs marriage definition indisputably furthers that interest. For that reason, too, that definition must be sustained under any form of rational-basis review. 3. Procreation Plaintiffs likewise do not dispute that procreation is fundamental to our very existence and survival. Loving, 388 U.S. at 12. To avoid depopulation, a society must achieve a fertility ratethe average number of children born to a woman over her lifetimeof approximately 2.1. See OB82-84. And Utah has maintained an aboveMany other courts have recognized the importance of man-woman marriage and parenting. See, e.g., Lofton, 358 F.3d at 819 ([C]hildren benefit from the presence of both a father and mother in the home.); see also OB65-66 (citing cases).
16

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replacement-level fertility rate in part because of its long-standing definition of marriage as only between a man and a woman. OB86-87. On the other hand, as highlighted in Utahs opening brief, the States and nations that have chosen a genderless marriage definition have experienced lower, below-replacement fertility rates. OB83-86. Conceptual connections. Instead of disputing the States interest in procreation, Plaintiffs object that Utah offers no logical or rational explanation of how excluding same-sex couples from marriage contributes to adequate birth rates, or why permitting same-sex couples to marry would result in a reduction in birth rates. AB68 n.19. But Utahs opening brief did just that. As we explained, by providing special recognition and benefits to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduction is healthy, desirable and highly valued. OB 86-90. The State also explained three concrete reasons why adopting a genderless marriage definition would tend to reduce fertility rates. Id. at 88. First, rejecting gender complementarity (with its unique 35

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ability to naturally procreate) as an inherent element of marriage necessarily breaks the conceptual link between marriage and procreation, thereby diluting marriages implicit message encouraging procreation. Second, by endorsing an adult-centric conception of marriage, a genderless marriage system would reduce the desire or social pressure people feel to have a childor more childrendespite personal sacrifices that requires. Third, because redefining marriage would contribute to declining marriage rates among heterosexuals, see supra Section I.A.2., birthrates would decline for that reason as well: As Utah explained (at 88-89), non-married cohabiting couples have fewer children than married couples. Statistical connections. While not conclusive given the limited time-frame for analysis, the statistical correlations between same-sex marriage and inadequate fertility also support Utahs position. The brief filed by Massachusetts and other states tries to minimize the correlation by arguing that birth rates have decreased nationally and in almost every State since 2008, and that the New England States (all of which allow same-sex marriage) have had among the lowest birth rates 36

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since 2000even before same-sex marriage. Brief of State of Mass. et al. at 25. But that observation does not account for additional statistics showing an even more stark correlation between same-sex marriage and decreasing fertility rates. As of 2010, none of the nine States with the highest fertility rates (the only States above the 2.1 replacement rate) allowed same-sex marriage. In contrast, five of the seven States (including Washington, D.C.) with the lowest 2010 fertility rates all permitted it (or civil union equivalents) before 2010. And while the fertility rates in both groups of States decreased between 2005 and 2010, the percentage decline was almost twice as large in the states that allowed same-sex marriage or its equivalent.17 Utah reasonably chooses

See Fertility in Selected USA States 2000-05-10, http://law2.byu.edu/files/marriage_family/US_fertility_rates_in_sel_states2000-2005-2010(2).pdf (last visited March 5, 2014). Similarly, as of 2010, the only three European Union countriesIceland, Ireland and Turkeythat had fertility rates above 2.1 had thus far bucked the trend of EU nations toward recognizing same-sex marriages; all the other EU nations had fertility rates below replacement levels. European Commission, Eurostat: Total Fertility Rate, 1960-2011 available at http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Tot
17

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not to ignore such correspondences in making decisions about its peoples future. In short, because the man-woman limitation furthers the States legitimate interest in adequate procreation, for that reason too, that limitation passes muster under any form of rational-basis review. 4. Avoiding religion-based strife and protecting popular sovereignty Nor do Plaintiffs or their amici have any plausible response to Utahs points (at 90-100) about the importance of preserving social consensus, regarding and democratic control over, marriage. Utahs position. Instead, Plaintiffs brief attributes motives to the State that can easily be dispatched: Utah does not oppose redefining marriage merely because the vast majority of the states faith communities do too. Id. at 81. Nor, as Utah made expressly clear (OB 97), does it suggest it can deny constitutional rights based on concerns

al_fertility_rate,_19602011_(live_births_per_woman).png&filetimestamp=20130129121040.

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about religious freedom or social strife, much less on a religious hecklers veto. AB81-82, 84. Nor is Utahs point similar to the absurd argument that freedom to worship or freedom of the press can be abridged if majorities are offended. AB82. Instead, what Utahs opening brief amply demonstrates (at 37-42) is that, because same-sex marriage is not a fundamental right, Plaintiffs case thus turns on equal protection analysis, under which Utah need offer only a plausible policy reason for keeping its existing marriage definition. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Under that very different and extremely lenient framework, avoiding serious conflicts with other important segments of society and preserving the deepest possible social support for the States legal definition of marriage surely qualify as legitimate State interests. See, e.g., Truax v. Corrigan, 257 U.S. 312, 357 (1920) (Brandeis, J., dissenting) (Since government is not an exact science, prevailing public opinion . . . is among the important facts deserving consideration; particularly, when the public conviction is both deep-seated and widespread and has been

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reached after deliberation.). Those interests are undoubtedly advanced by preserving the States existing marriage definition.18 Importance of broad consensus for marriage. In the end, Plaintiffs argument simply assumes that popular support for marriage has no effect on its ability to perform its vital functions. But direct experience, and the research summarized in the opening brief, proves otherwise: Different forms of marriage lead to different social outcomes that either advance or harm Utahs child-centric interests in marriage. See supra Section 1.A.1-3. And the broadest possible consensus about the definition of marriage is essential to marriages ability to advance those state interests. Utah thus has the highest interest in a definition

Plaintiffs amici are also incorrect in suggesting that any religious institution in Utah attempted to foment or orchestrate passage of Amendment 3 or related laws. Brief of Anti-Defamation League et al. at 1112; Brief of Alliance for a Better Utah at 3-9. All of the cited statements by religious bodies were simply reacting to political eventsand legitimately so. Brief of U.S. Council of Catholic Bishops et al. at 29-35. The notion that such reactions by religious bodies give rise to a violation of the federal Establishment Clause lacks any support in law or common sense. Id.
18

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of marriage that marshals the greatest degree of social support, including support from its diverse religious communities.19 What those communities have to say about marriage cannot simply be ignored. See, e.g., Truax, 257 U.S. at 357 (Brandeis, J., dissenting). Religious communities and their members are unlikely to abandon their beliefs or teachings about marriage even if the law were to redefine it in genderless terms. See Brief of U.S. Council of Catholic Bishops et al. at 7-10. But in that event, those communities might well refuse on religious grounds to support such things as State-sponsored informational campaigns extoling the benefits of marriage generally. Or they might call for the State to get out of the marriage business

There is no issue-preservation problem here. The district court discussed and rejected this argument in its decision. Memo Decision at 49. And in any event, in the context of a rational-basis analysis, a court is not bound by explanations of the statutes rationality that may be offered by the litigants or other courts. Kadmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988). Moreover, appellate courts may address a waived issue when it promotes the public interest or is necessary to avoid manifest injustice. Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009); Sussman v. Patterson, 108 F.3d 1206, 1210 (10th Cir. 1997).
19

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entirely and instead establish a civil union system for all domestic relationsthereby risking the complete privatization of marriage and the consequent loss of its vital public purposes. See OB78-79. Utah rationally and responsibly chooses not to ignore such risks. And for that reason, too, Utahs definition of marriage satisfies any form of rational-basis review. Religious liberty. Brushing aside the consensus among First Amendment scholars that religion-related strife and threats to religious liberty will inevitably arise from redefining marriage, Plaintiffs and their amici acknowledge that such conflicts are already arising even without same-sex marriage. AB84-86. Be that as it may, a judgeimposed redefinition of marriage will dramatically accelerate and intensify religious conflictsby, for example, making it impossible for wedding photographers and bakers with religious objections to samesex unions to avoid religious conflicts simply by limiting their businesses to man-woman marriage ceremonies. See Brief of The Becket Fund for Religious Liberty at 4-8.

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Indeed, it has been the adoption of same-sex marriagenot mere antidiscrimination lawsthat has already led such organizations as Catholic Charities to shut down social service programs in several States. They did so because they could not simultaneously comply with the legal requirements imposed on such programs by the new laws and adhere to their long and deeply held religious beliefs.20 Once again, Plaintiffs and their allies downplay[] the impact of such laws on religious believers. OB 94 (quoting Same-Sex Marriage and Religious Liberty: Emerging Conflicts 124-25 (Douglas Laycock et al. eds., 2008) (essay by Professor Chai Feldblum)). Yet the impact is

See, e.g., Michelle Boorstein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010), http://www.washingtonpost.com/wpdyn/content/article/2010/02/16/AR2010021604899.html17, 2010); Emily Esfahani Smith, Washington, Gay Marriage and the Catholic Church, Wall Street Journal (Jan. 9, 2010), http://online.wsj.com/article/SB10001424052748703478704574612451567822 852.html; Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case for Conscientious Refusals 27 Childrens Legal Rights J. 1, 11 (2007).
20

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real. And Utah has a legitimate interest in avoiding socially divisive religious conflicts over its vital marriage institution. Preserving democratic decision-making. Plaintiffs also have no credible response to the States closely related point (at 98-100) about the importance of preserving democratic decision-making on the important issue of marriage. Plaintiffs do not dispute that Amendment 3 and related laws were adopted in direct response to the 2003 Massachusetts interpreting that States constitution to require samesex marriage. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Indeed, floor speeches and voter materials show that Amendment 3 was an attempt by the people of Utah to ensure that Utah courts could not go down the Goodridge path and impose same-sex marriage on the State under the banner of the State constitution. See App. 347, 349. For all the reasons discussed in Utahs opening brief (at 98-100), preserving democratic decision-making is itself a legitimate even compellingState interest. Plaintiffs are thus wrong in arguing (at 39-48) that the peoples decision to write man-woman marriage into their constitution was 44

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somehow unfair or demeaning to gays and lesbians. Yes, it meant that the legislature could not enact same-sex marriage on its own. But it also meant that Utahs courts could not usurp the democratic process by imposing same-sex marriage through a strained interpretation of the State constitution. Again, Amendment 3 was an entirely reasonable response to Goodridge.21 Plaintiffs also ignore another important benefit of ensuring democratic control over the definition of marriage: The democratic process allows appropriate exemptions and adjustments that an up-ordown judicial decision does not. For example, several foreign nations that have adopted same-sex marriage through legislation have decided to treat same-sex couples differently than husband-wife couples on

The same analysis applies to Section 2 of Amendment 3, which prohibits the State from recognizing any civil or domestic union as a marriage. The Vermont Supreme Court had ruled in 1999 that Vermont had to offer all the benefits of marriage to same sex-couples, which led the Vermont legislature to create a new legal status called civil unions. OB11-12. Section 2 was a reasonable response to this judicial threat.
21

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matters like the presumption of parentage22something that would be impossible if same-sex marriage were imposed by judicial decree. Similarly (to return to the religious-liberty issue), every U.S. State that has enacted same-sex marriage through democratic means has included at least some protections for religious freedom. See Brief of Becket Fund for Religious Liberty at 27-32. But Massachusetts has not done that because the decision to impose same-sex marriage by judicial fiat deprived those concerned about its effect on religious freedom of any legislative leverage. And that is why, for example, Catholic Charities felt it had to shut down its adoption and foster care services in Massachusetts, but has not had to do so in States that have adopted reasonable religious exemptions as part of their redefinition. By ensuring that (insofar as state law is concerned) decisions about same-sex marriage would be made through democratic means,

See, e.g., W. Cole Durham, Jr., Robert T. Smith, and William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions (March 14, 2014), available at SSRN: http://ssrn.com/abstract=2409282
22

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Amendment 3 thus serves the States legitimate interests in limiting civil strife over religious matters and in protecting democratic processes. For those reasons too, Amendment 3 and related statutes satisfy any form of rational-basis review. B. Rational-basis review does not require the state to justify the exclusion of same-sex couples from its marriage definition. Despite the foregoing, even if Utah could not specifically justify the exclusion of same-sex couples from its marriage definition, Plaintiffs fail to offer any convincing defense of the district courts holding that Utah bears that burden. A classification must be sustained under rational-basis review if the inclusion of one group provides a legitimate governmental purpose, and the addition of other groups would not. OB 47 (quoting Johnson v. Robinson, 415 U.S. 361, 382-83 (1974)). Hencealthough Utah can do so (see supra Section I.A.)Utah is not required to show that denying marriage to same-sex couples is necessary to promote the states interest or that same-sex couples will suffer no harm by an opposite-sex definition of marriage. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1106-07 (D. Haw. 2012) 47

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(citation omitted; emphasis added). Rather, the relevant question is whether an opposite-sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. Id. at 1107 (citations omitted). That conclusion is compelled by Johnson itself. There, a draftee who obtained conscientious objector status and completed alternative civilian service challenged a federal law granting educational benefits to only those veterans who served on active duty thus excluding alternate servicemen. 415 U.S. at 363-64. On equal protection grounds the district court invalidated the benefits law as arbitrary, holding that active-duty veterans and alternate-servicemen veterans were similarly situated with respect to the goals Congress was trying to achieve by enacting the legislation. Id. at 377. The Supreme Court disagreed and reversed, noting among other things that educational benefits could ordinarily induce an individual to volunteer and a draftee to participate in active duty, but that those inducements would not sway a conscientious objector Id. at 378-83. Accordingly, offering those benefits to conscientious objectors would not advance that interest as 48

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effectively as offering them to people who agreed to active duty. The Court concluded that when, as there, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, [the Court] cannot say that the statutes classification . . . is invidiously discriminatory. Id. at 383 (emphasis added). The same is true here. The inclusion of same-sex couples in Utahs definition of marriage would not promote, for example, Utahs interests in every child having the diversity of both a mother and a father; or in children being raised by their biological parents when possible; or in adequate procreation. Are there benefits to marriage that same-sex couples consider important and valuable? AB67. Undoubtedly. But that is not the proper test under Johnson, where the educational benefits at issue would have been equally important and valuable to alternate civilian service members as well as active-duty veterans. As the Court explained, a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statue when other characteristics peculiar to only one group rationally explain the statutes different treatment of the two groups. Johnson, 49

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415 U.S. at 378; accord Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (where a group possesses distinguishing characteristics relevant to interests the State has the authority to implement, a States decision to act on the basis of those differences does not give rise to a constitutional violation. (internal quotation marks omitted)); Tigner v. Texas, 310 U.S. 141, 147 (1940) (the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.). Thus, even if the inclusion of same-sex couples would not harm the States interests, the State can rationally leave them out of the definition if they are differently situated with respect to any legitimate State interests. Utahs compelling interest in procreationincluding its interest in channeling procreation into stable relationshipsprovides an apt example of how a biological difference between opposite-sex and samesex couples provides grounds upon which the State can legitimately define marriage. Because [a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people 50

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into full maturity as citizens, with all that implies, the government may secure this against impeding restraints and dangers, within a broad range of selection. Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Accordingly, Utah could rationally find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. [Utah] thus could choose to offer an inducementin the form of marriage and its attendant benefitsto opposite-sex couples who make a solemn, long-term commitment to each other. Hernandez, 855 N.E.2d at 7 (plurality op.). Many other courts have reached the same conclusion. E.q., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006).23

23Accord,

Sevcik, 911 F. Supp. 2d at 1015-16; Jackson, 884 F. Supp. 2d at 1111-1114; In re Kandu, 315 B.R. 123, 145-146 (Bankr. W.D. Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124-25 (C.D. Cal. 1980), affd on other grounds, 673 F.2d 1036 (9th Cir. 1982); Standhardt v. Superior Court, 77 P.3d 451, 461-65 (Ariz. Ct. App. 2003); Dean v. District of Columbia, 653 A.2d 307, 363 (D.C. 1995) (Steadman, A.J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 23- 31 (Ind. Ct. App. 2005); Conaway v. Deane, 932 A.2d 571, 630-34 (Md. 2007); Baker, 191 N.W.2d at 186-87; In re Marriage of J.B. & H.B., 326 S.W.3d at 677-78; Andersen v. King County, 138 P.3d 963, 982-83 (Wash. 2006) (plurality op.); id. at 1002-03 (J.M. Johnson, J., separate op.

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Conversely, same-sex couples, who cannot naturally (much less unintentionally) procreate, do not promote the States interests in channeling procreation, at least not in the same way or to the same degree. On that uncontrovertable biological reality courts have upheld as rational a States choice to define marriage as between a man and a woman. See, e.g., Bruning, 455 F.3d at 867 (noting that differences in procreative ability justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.).24 Like the district court, the Plaintiffs construe Amendment 3s effect as only to disallow same-sex couples from gaining access to

concurring in judgment only); Singer v. Hara, 522 P.2d. 1187, 1195 (Wash. Ct. App. 1974); Goodridge, 798 N.E.2d at 995-1004 (Cordy, J., dissenting). 24 Accord Jackson, 884 F. Supp. 2d at 1114 (opposite-sex couples, who can naturally procreate, advance the interest in encouraging natural procreation to take place in stable relationships and same-sex couples do not to the same extent.); Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (2003) at 463; accord Morrison, 821 N.E.2d at 25.

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marriage benefits and therefore insisted that the States interests must be rationally related to prohibiting same-sex marriage. Decision at 42; AB66. But that mischaracterizes both Amendment 3 and the case law. The district courts exclusion analysis presupposes that Plaintiffs had access to a right to same-sex marriage that Amendment 3 disallow[ed]. Brief of State of Indiana et al. at 24-26. But that was never the case. Amendment 3 (and related statutes) did not create a new definition of marriage or otherwise change the existing traditionally understood definition of marriage. Amendment 3 (and related statutes) simply codified and enshrined into the Utah constitution the common law marriage definitionand did so to protect and preserve the benefits that institution provides to society. If codifying the common law amounts to exclusion or discrimination the many constitutional and statutory provisions would become suspect. It would also lead to the absurd result in which challenges to the commonlaw definition of man-woman marriage would be subject to normal rational basis review but challenges to statutory or constitutional

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definitions of man-woman marriage are subject to a much different type of review. Indeed, the district courts reverse rational basis analysis could apply to most statutes regardless of their common-law heritage. As Romer noted, most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons. Romer v. Evans, 517 U.S. at 631. According to the district court, all of these laws are invalid unless it can be shown that State interests are promoted by the resulting disadvantages. That is not the law.25 Standard rational

Neither Windsor nor the cases the district court and Plaintiffs cite require the Court to analyze whether the States interests are furthered by excluding same-sex couples from marriage. Decision at 43; AB66 n.18. As explained throughout the States briefing, Windsors analysis hinged on DOMAs unusual federal intrusion into and rejection of a States definition of marriage. Windsor, 133 S. Ct. at 2694-94. Likewise, all of the other Supreme Court cases on which the district court and Plaintiffs rely are easily distinguished. In some of those, the Supreme Courts analysis simply reflects the exclusion-based rationales that were asserted to defend the laws in question. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448-450 (1985); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 315-316 (1976); U.S. Dept of Agriculture v. Moreno, 413 U.S. 528, 536-37 (1973). In another the plaintiffs were arguing that they should be excluded or exempted from the statutory scheme in question. FCC v. Beach Commns, Inc., 508 U.S. 307,
25

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basis review ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633. And that is precisely what the Johnson analysis accomplishes: when the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, [the Court] cannot say that the statutes classification . . . is invidiously discriminatory. Id. at 383. Nor is it relevant to argue (AB66-69) that Utahs laws are over- or underinclusive (though they are neither, see supra Section I.A.). As the Supreme Court has instructed, [e]ven if [a] classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature or people] is imperfect, it is nevertheless the rule that in [rational basis review] perfection is by no means required.

316-20 (1993). In still others the Court applied strict scrutiny to strike down anti-miscegenation laws, Loving v. Virginia, 388 U.S. 1, 9-12 (1967), or the purported rationales were plainly absurd and/or underincusive. Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972).

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Vance v. Bradley, 440 U.S. 93, 108-09 (1979) (quoting Phillips Chem. Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)). That is one reason why this Courts affirmance of the district court would place this Court in conflict with Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) , Lofton, 358 F.3d at 818, and several state appellate decisions. E.g., Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010); Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). At bottom, what Plaintiffs seek is to invert the presumption that Utahs marriage laws are valid and that Plaintiffs bear the burden of proving irrationality. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012); Beach Commcns, 508 U.S. 307, 314-15 (1993); Heller v. Doe, 509 U.S. 312, 320 (1993). But because Utah has articulated legitimate interests that are advanced by its marriage definition, the inquiry ends.

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C. Baker retains vitality and is dispositive here. Plaintiffs efforts to defend the district courts refusal to follow Baker are equally misguided. Baker addressed the issues presented here. Plaintiffs first assert (at 23-24) that the issues in this case differ from those in Baker because (1) Minnesotas marriage definition had not yet been made explicit when Baker was decided; (2) Baker did not involve the recognition of marriages entered into in another state; and (3) Baker did not expressly address the validity of measures such as Utahs laws prohibiting any relationship other than marriage between a man and a woman from being given legal effect. Plaintiffs are wrong. The jurisdictional statement in Baker presented the following questions: 1. Whether [the States] refusal to sanctify [plaintiffs] marriage deprives [plaintiffs] of their liberty to marry and of their property without due process of law under the Fourteenth Amendment. Whether [the States] refusal, pursuant to Minnesota marriage statutes, to sanctify [plaintiffs] marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment. App. 221. 57

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Thus as to Plaintiffs first claim, the precise issues presented herewhether a states decision to treat marriage as the union of a man and a woman violates the Due Process or Equal Protection Clauseswere directly presented in Baker. The one-man, one-woman definitions of marriage and the Fourteenth Amendment issues arising from those definitions are the same, whether or not Minnesota had expressed its definition in statute or state constitution. Of equal note, the district court recognized below that the constitutional analysis of claims by same-sex couples married in another state is identical to the analysis of claims by couples who have not been married at all. Decision at 51. Consequently, the Supreme Court necessarily decided those issues when it summarily dismissed the Baker appeal for want of a substantial federal question. 409 U.S. 810. Plaintiffs have offered no new arguments related to any of the distinctions they identify that were not necessarily decided by the Supreme Courts summary dismissal in Baker. Nor does this Courts decision in Neely v. Newton, 149 F.3d 1074 (10th Cir. 1998), help the Plaintiffs. In Neely, this Court considered a 58

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due process challenge to New Mexicos guilty but mentally ill statute in light of an earlier Supreme Court summary dismissal of an appeal presenting a due process challenge to Michigans guilty but mentally ill statute. Noting material differences between the two cases, the Neely Court held it was not bound by the summary dismissal. Specifically, Neely argued that the trial courts lack of discretion to commit her to a mental facility while incarcerated undermined the constitutionality of the New Mexico statute, whereas the Michigan statute had no such prohibition. Id. at 1078-79. But here, there is no material difference between the issues raised in Baker and this case. Finally, Plaintiffs third distinctionwhich focuses on Amendment 3s any other relationship provisionis also immaterial. Plaintiffs have not argued at any stage of this case that they are entitled to have their relationships treated as the equivalent of marriages if they are not allowed to marry under state law. Accordingly, the validity of such provisions in Utahs lawsincluding Section 2 of Amendment 3is not properly before the Court.

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Baker is binding on the lower courts. Plaintiffs also contend that [d]octrinal developments by the Supreme Court in application of the Equal Protection and Due Process Clauses require that Baker no longer have precedential effect even on the issues it considered. AB25. But summary dispositions are controlling precedent unless and until re-examined by [the Supreme] Court. Tully v. Griffin, 429 U.S. 68, 74 (1976); see also Agostini v. Felton, 521 U.S. 203, 207 (1997) ([L]ower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.); accord Conover v. Aetna U.S. Healthcare, Inc., 320 F.3d 1076, 1078 n. 2 (10th Cir. 2003) ([T]he Supreme Court instructed us to avoid concluding its more recent cases have, by implication, overruled an earlier precedent.) (internal quotation marks omitted). Tully is particularly instructive. There the Court considered the applicability of the Tax Injunction Act to a Vermont retailers constitutional challenge to New Yorks assessment of taxes on the retailers sales to New York customers. The issue was whether New York provides a plain, speedy and efficient remedy to an out-of-state 60

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corporation that seeks to challenge New Yorks assessment of sales taxes against it. 429 U.S. at 68-69. The Supreme Court previously had summarily affirmed another appeal from a three-judge district court ruling that New York did provide such a remedy. Ammex Warehouse Co. v. Gallman, 414 U.S. 802 (1973). Because the lower courts holding mirrored the jurisdictional statement filed in Ammex, the summary affirmance was a controlling precedent, unless and until re-examined by [the Supreme] Court. 429 U.S. at 74. That is true of Baker as well. Ignoring the symmetry of this case and Tully, Plaintiffs quote a footnote in Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979), for the proposition that summary dismissals do not . . . have the same precedential value . . . as does an opinion of [the Supreme] Court after briefing and oral argument on the merits. AB21. But Plaintiffs omit a key word from the quoted language, which actually states that summary dismissals do not . . . have the same precedential value here as does an opinion of [the Supreme] Court . Id. at 476 n.20 (emphasis added). Discussing the 61

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precedential value of a summary dismissal in the Supreme Court, not in the lower courts, is a distinction with a difference. That distinction exists here. The same distinction can be drawn with respect to Justice Ginsburgs comments during oral argument in Hollingsworth. See AB21.26 Plaintiffs have cited no case approving a lower courts disregard of a dispositive Supreme Court ruling, summary or otherwise, because of what the lower court perceives to be doctrinal developments. Hicks v. Miranda, 422 U.S. 332 (1975), certainly did not do that. And subsequent Supreme Court decisions reaffirm that it is uniquely the prerogative of the Supreme Court to determine whether earlier Supreme Court decisionssummary or otherwise retain precedential
Nor was Justice Ginsburg the only Justice to mention Baker at the Hollingsworth argument. AB21. Pressing counsel for the same-sex couples for a coherent interpretation of the Constitution, Justice Scalia asked when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868 when the Fourteenth Amendment was adopted? [S]ome time after Baker, where we said it didnt even raise a substantial Federal question? Tr. of Oral Argument at 38, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144).
26

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effect. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477 (1989) [L]ower courts should follow the case which directly controls, leaving to th[e Supreme Court] the prerogative of overruling its own decisions. Agostini, 521 U.S. at 207. That principle is dispositive here.27 II. THE DECISION BELOW CANNOT BE AFFIRMED ON ANY ALTERNATIVE HEIGHTENED SCRUTINY GROUNDS ADVANCED BY THE DISTRICT COURT OR PLAINTIFFS. As alternative grounds for invalidating Utahs marriage laws, the district court and the Plaintiffs advanced several arguments urging some form of heightened scrutiny. And while neither has explained what such scrutiny would look like, the district court suggested that
Plaintiffs are also incorrect in concluding (at 25-27) that subsequent decisions have undercut Baker. In none of those cases did the Court consider the constitutionality of state laws defining marriage as the State of Utah has done. To the contrary, the Court has carefully avoided opining directly on that issue. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) ([The present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.); Windsor, 133 S.Ct. at 2696 (This opinion and its holding are confined to those [same-sex] marriages [made lawful by the State].).
27

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because (in its view) Utahs marriage laws discriminate on the basis of sex, those laws can be sustained only if they are substantially related to an important governmental objective[.] Decision at 34 (quot ing United States v. Virginia, 518 U.S. 515, 533 (1996) (alteration in original)). If that is the standard, and in light of the largely undisputed analysis presented in Section C of Utahs opening brief and recapitulated in Section I.A. above, it is hard to fathom why Plaintiffs expend so much energy pressing for heightened scrutiny. Plaintiffs do not seriously dispute that in general each of the States interests including quality parenting for the States children, maintaining adequate birthrates, and promoting democratic decision-making rather than civic strifeconstitutes an important objective. Nor do they dispute that, at least in some respects, preserving the traditional manwoman definition materially advancesand is therefore substantially related toeach objective. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1110 ([T]he test [is] whether the government can demonstrate that its classification serves important governmental objectives and is 64

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substantially related to achievement of those objectives.) (internal quotations omitted). Accordingly, the debate over the proper standard of review is immaterial to the outcome of this appeal. Nevertheless, we explain below why each of the four bases advanced by the Plaintiffs and the district court for requiring heightened scrutiny is wrong. Those include: (a) the argument advanced by the Plaintiffs, but rejected by the district court, that Windsor requires the application of heightened scrutiny when a State decides to ensconce in its constitution or statutes the traditional manwoman definition of marriage; (b) the argument accepted by the district court that Utahs marriage laws burden a due process-based, fundamental right to marry that extends to someone of the same sex; (c) the argument accepted by the district court that Utahs man-woman definition of marriage constitutes sex discrimination subject to the strictures of equal protection; and (d) the argument that Utahs definition discriminates on the basis of sexual orientation.

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A. Rather than subjecting Utahs marriage laws to heightened scrutiny, Windsor supports their constitutionality. In Windsor, the States historic authority was of central relevance to the Supreme Courts decision to strike down DOMA. 133 S. Ct. at 2692. While Windsor did not expressly address the validity of State laws codifying the traditional definition of marriage, its reasoningwith Bakerestablishes a principled, federalism-based resolution to the marriage issue: Baker affirms each states ability to retain the traditional definition, while Windsor prohibits the federal government from interfering with a states choice to include same-sex couples. See OB35. 1. Plaintiffs reading of Windsor ignores its critical and repeated emphasis on State authority over marriage. Plaintiffs rightly concede (at 96) the States authority to define marriage, but they ignore Windsors carefully detailed federal-state distinctions and contend the opinion created a new category of heightened scrutiny for laws limiting marriage to a man and a woman. AB4043. For two reasons, that is incorrect.

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First, Windsor did not create a new heightened level of scrutiny. The constitutional principles the Court said DOMA could not survive reach as far back as 1928: [D]iscriminations of an unusual character especially require careful consideration, Windsor, 133 S. Ct. at 2693 (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)(quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928))); and 1973: [A] bare desire to harm a politically unpopular group cannot justify disparate treatment of that group. Id. at 2693 (quoting Dept of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973)). In its holding, moreover, the Court employed a traditional rational-basis test, asking whether Congress had a legitimate purpose for DOMA. Id. at 2693. (The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those same-sex couples whom New Yorks marriage laws sought to protect). The Court did not create a new rule that imposition of any inequality on an (arguably) unpopular group is unconstitutional regardless of the State interests a statute or rule serves.

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Second, contrary to Plaintiffs argument (at 40), Windsors analysis does not apply to State laws that define marriage in manwoman terms. Windsor repeatedly emphasized that DOMAs discriminatory purposes and effect arose from the unusual situation of a federal laws rejection of valid state-law marriages. 133 S. Ct. at 2693 (DOMAs unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage . . . . is strong evidence of a law having the purpose and effect of disapproval of same-sex couples) (emphasis added); id. at 2694 (By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.). The Court held only that the federal government had no legitimate purpose for a federal law whose purpose and effect disparaged and injured those whom the State, by its marriage laws, sought to protect in personhood and dignity. Id. at 2696 (emphasis added). 68

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A faithful reading of Windsor thus precludes the analogy Plaintiffs attempt to draw between DOMA and Utahs marriage laws. DOMA took the unusual step of federal rejection of marriages deemed valid by a state. Id. at 2692, 2693. Utahs marriage laws merely define marriage within its borders, as Windsor recognizes States have the historic and constitutional prerogative to do. Id. Thus, DOMA was unusual to precisely the same extent that Utahs laws are usual. Consequently, Plaintiffs cannot logically transfer DOMAs discriminatory intent and purpose to State marriage laws. See, e.g., Brief of Prof. Daniel Conkle et al. at 5-6. Such a transfer would defy the federal-state distinctions that were of central relevance to Windors holding. 2. Windsor does not support a finding of animus here. Plaintiffs attempts to malign as animus the motives of every Utah legislator and citizen who voted for Amendment 3 are similarly misguided. Preliminarily, the premise of Plaintiffs argument is wrong: Standing alone, evidence of animus or any other improper motive does not invalidate a law. For it is a familiar principle of constitutional law 69

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that [the Supreme] Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986); accord Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) ([B]iases may often accompany irrational (and therefore unconstitutional) discrimination, [but] their presence alone does not a constitutional violation make.); Brief of U.S. Conf. of Catholic Bishops, et al., at 21-22. Windsor follows this principle for the reasons discussed above. So too does Romer.28 All of these decisions recognize that, where legislators or voters are pursuing some legitimate purpose, disparaging their motives as hateful or bigoted is inappropriate, and, indeed, could chill public debate. See Brief of Becket Fund for Religious Liberty at

Romer relied on animus to explain a state constitutional amendment withdrawing and prohibiting distinctive legal protection for gays and lesbians, but only because the amendments breadth was so far removed from [its] particular justifications that [the Court found] it impossible to credit them. 517 U.S. at 635. The mere presence of animus did not undo the law; it was animus combined with the absence of any justification for the classification that rendered it arbitrary and therefore unconstitutional.
28

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20-27; Brief of Prof. Daniel Conkle at 7-10; Brief of Robert George et al. at 25-27. Unlike Section 3 of DOMA and the Colorado provision invalidated in Romer, Utahs marriage laws are supported by legitimate and even compelling state interests. See supra Section I.A.; accord Lawrence, 539 U.S. at 585 (OConnor, J., concurring) (preserving the traditional institution of marriage would constitute a legitimate state interest and other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.). Accordingly, in these circumstances, animus does not come into play. In any event, the mere act of codifying or constitutionalizing the existing common-law and age-old marriage definition does not show animus. [M]arriage between a man and a woman no doubt ha[s] been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. Windsor, 133 S. Ct. at 2689. It is not plausible to infer that marriage was invented thousands of years agoand maintained since that time by civilizations and governments across the globesolely as a tool to 71

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discriminate. As the plurality of New Yorks highest court put it: Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (plurality). Similarly, Utahs prohibition against recognizing any other type of domestic union as a marriage is the opposite of animus. It demonstrates that Utah recognizes husband-wife marriage as an ideal parenting structure, one worthy of special benefits. Moreover, same-sex marriage advocates have argued in other jurisdictions that the presence of civil unions for same-sex couples proves the states man-woman marriage definition is irrationaland have sought to invalidate state laws on that very basis. Sevcik v. Sandoval, 911 F. Supp. 2d 996, 101718 (D. Nev. 2012) (appeal pending); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1107-1111 (D. Haw. 2012). It was not unreasonable

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and certainly not indicative of any animusfor Utah voters to anticipate and foreclose that scenario. Nor do the alleged moral- or religious-tinged comments of a few legislators during floor debates or in the Utah Voter Information Pamphlet evidence animus. Cf. AB45-46. Religious or moral viewpoints are not animus and are not forbidden on this or any other topic of public debate. 29 See generally Brief of U.S. Conference of Catholic Bishops et al. at 29-35. Nor can isolated comments by a few legislators be imputed to every other legislator or citizen who voted in favor of Amendment 3. Weinberger v. Rossi, 456 U.S. 25, 35 n.15 (1982) (The contemporaneous
Nor is public morality an otherwise improper consideration in enacting legislation. See Bushco v. Shurtleff, 729 F.3d 1294, 1304 (10th Cir. 2013) (The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and [the U.S. Supreme Court has] upheld such a basis for legislation.) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991)); Williams v. Morgan, 478 F.3d 1316, 1322-23 (11th Cir. 2007) (Noting that, [t]o the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial, and that the Supreme Court has affirmed on repeated occasions that laws can be based on moral judgments (citing cases)).
29

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remarks of a sponsor of legislation are not controlling in analyzing legislative history.); Carter v. U.S., 530 U.S. 255, 271 (2000)(In analyzing a statute, we begin by examining the text not by psychoanalyzing those who enacted it) (citation omitted). As the district court noted, it is impossible to determine what was in the mind of each individual voter. Decision at 40. The same is true of legislators. 3. Windsor does not require recognition of same-sex marriages performed in other States. Plaintiffs further claim that Utahs anti-recognition statute is invalid because it is an unusual deviation from basic principles governing out-of-state marriage. AB88. Plaintiffs are wrong, under settled law, because Amendment 3 is constitutional and expresses Utahs valid public policy, the State need not recognize same-sex marriages performed elsewhere. See Nevada v. Hall, 440 U.S. 410, 42223 (1979) (the Full Faith and Credit Clause does not require a State to apply another States law in violation of its own legitimate public policyFull Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the 74

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other from prescribing for itself the legal consequences of acts within it.). And federal law explicitly allows States to refuse to recognize same-sex marriages performed elsewhere. 8 U.S.C. 1738C (DOMA 2). Plaintiffs attempt to downplay the public policy exception highlights the flaw in their argument. Even before DOMA 2 expressly authorized States to refuse recognition of same-sex marriages, it was well-settled that Utah need not recognize out-of-state marriages that are illegal if performed in Utah: The general rule that a marriage valid where solemnized is valid everywhere does not apply. To that rule, there is a proviso or exception, recognized, it would seem, by all the States, as follows: unless contrary . . . to the express prohibitions of a statute. In re Mays Estate, 114 N.E.2d 4, 8 (N.Y. App. 1953); accord, Lynn D. Wardle, From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations, 2008 B.Y.U. L. Rev. 1855, 1912, 1915. This is because the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with 75

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a subject matter concerning which it is competent to legislate. Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003). Indeed, forcing a state to recognize same-sex marriages performed elsewhere would be the most astonishingly undemocratic, counter-majoritarian political development in American history. Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of NonTraditional Marriages, 32 Creighton L. Rev. 147, 150 (1998). Utahs decision not to recognize out-of-state same-sex marriages is therefore far from an unusual deviation from the norm. Plaintiffs argument ignores the historic sovereignty of each state to define marriage for itself and would instead allow one sovereign to dictate its view of marriage to every other state. That is improper. See, e.g., Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2623 (2013) (stating the fundamental principle of equal sovereignty among the States remains essential to the harmonious operation of the scheme upon which the Republic was organized (internal quotation marks and citations omitted)); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) (A basic principle of federalism is that each State may make 76

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its own reasoned judgment about what conduct is permitted or proscribed within its borders.); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571 (1996) (no single State could . . . impose its own policy choice on neighboring States); Bigelow v. Virginia, 421 U.S. 809, 824 (1975) (A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State)30. B. The district court erred in concluding that Plaintiffs have a fundamental due-process right to marry someone of the same sex. Plaintiffs argument for a fundamental right to same-sex marriage fails the controlling fundamental rights analysis outlined in Washington v. Glucksberg, 521 U.S. 702 (1997); OB 37-39: No one can credibly maintain that same-sex marriage is objectively, deeply rooted in this Nations history and tradition, and implicit in the concept of
Plaintiffs theory would also create equal protection problems rather than solve them: It would be implausible to think that the State could deny marriage to resident same-sex couples while recognizing the same-sex marriages performed elsewhere.
30

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ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed. Id. at 720-21; OB 38. In fact, Windsor put this issue beyond debate, noting that until recent years, many citizens had not even considered the possibility of a genderless definition of marriage. 133 S. Ct. at 2689. The Court emphasized that most people considered marriage between a man and a woman as essential to the very definition of that term and to its role and function throughout the history of civilization. Id.; OB 40. In trying to sidestep Glucksberg and Windsor, Plaintiffs largely follow the same erroneous path the district court trod. Notably, Plaintiffs do not dispute that their due process claim fails the Glucksberg test. Instead, Plaintiffs (like the district court) argue that Glucksberg does not apply here because they want access to an existing fundamental right to marry, not creation of a new right to same-sex marriage. AB34 n.5. But that argument fails for multiple reasons. First, the access-to-an-existing-right argument simply begs the question: is the right to marry someone of the same sex fundamental, 78

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either on its own or because it can be said to fall within an existing right? Windsors observation about the newness of same-sex marriage forecloses latter option, leaving Plaintiffs to contend that the right to marry someone of the same sex is itself fundamental. And that question can be answered only by following Glucksbergs established method of substantive due-process analysis. Glucksberg, 521 U.S. at 720. Glucksberg, moreover requires that a person seeking to establish a fundamental right must: (1) provide a careful description of the asserted fundamental liberty interest, and (2) show that protection of those interests are deeply rooted in this Nations history and tradition. Glucksberg, 521 U.S. at 720-721. Thus, as this Court has recently observed, a plaintiff asserting a substantive due process right must both (1) carefully describe the right and its scope; and (2) show how the right as described fits within the Constitutions notions of ordered liberty. Seegmiller v. LaVerkin, 528 F.3d 762, 769 (10th Cir. 2008). The case law does not reserve these requirements to new rights, but like the Plaintiffs here and in Seegmiller, they apply to all 79

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persons asserting a substantive due process right. Id. To hold otherwise would permit every litigant to skirt Glucksberg by claiming access to a broadly defined pre-existing right. Binding precedent rightfully rejects such strategies. In Glucksberg, for example, the Supreme Court rejected various iterations of a claimed general right to die, and instead carefully defined both the asserted existing right to refuse lifesaving hydration and nutrition and the asserted right to commit suicide which itself includes a right to assistance in doing so. 521 U.S. at 723 (internal quotation marks omitted). Likewise, in Seegmiller, while this Court acknowledged that no one disputes a right to be free from government interference in matters of consensual sex, the plaintiff could not simply assert a broad right to sexual freedom. Instead, the Court carefully and narrowly defined her asserted right based on her off-duty conduct with

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a fellow officer at a training conference paid for in part and supported by [her employer]. 528 F.3d at 769, 770.31 Turner v. Safley, 482 U.S. 78 (1987), likewise attempts to escape Glucksberg. Among the reasons that the Supreme Court found to support a male inmates constitutionally protected interest to marry a woman was the fact that most inmates eventually will be released . . . and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Id. at 96. More, noteworthy still, the Court expressly distinguished its prior decision in Butler v. Wilson, 415 U.S. 953 (1974), which summarily affirmed a lower courts prohibition of inmate marriages incarcerated for life. Turner, 482 U.S. at 96. However, the lower court had reasoned that the
Contrary to Plaintiffs argument (at 38 n.8), moreover, Seegmiller did not endorse the California Supreme Courts view that same-sex marriage proponents were only seeking an existing marriage right rather than recognition of a new fundamental right to same-sex marriage. Rather, Seegmiller cited the California court to indicate its divergence from other courts interpretation of Lawrence: After concluding (with a period) a long string cite of cases holding that Lawrence did not announce any fundamental rights, Seegmiller cited In re Marriage Cases with a Cf. Seegmiller, 528 F.3d at 771. This is hardly a ringing endorsement, much less approval.
31

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prohibition on marriage there did not violate the Constitution because [t]hose aspects of marriage which make it one of the basic civil rights of mancohabitation, sexual intercourse, and the begetting and raising of childrenare unavailable to those in [the inmates] situation because of the fact of their [lifelong] incarceration. Johnson v. Rockefeller, 365 F. Supp. 377, 380 (S.D.N.Y. 1973) (citation and internal quotation marks omitted). That holdingand its summary affirmancethus foreclose the Plaintiffs argument that there is a fundamental right to marry the person of ones choice, however that concept is expressed. At bottom, Plaintiffs definitional argument cannot sidestep the requirements of Glucksberg that [o]ur Nations history, legal traditions, and practices . . . provide the crucial guideposts for responsible decisionmaking that direct and restrain our exposition of the Due Process Clause. Glucksberg, 521 U.S. at 721 (internal citations and quotation marks omitted).1 Contrary to Plaintiffs argument (at 38), moreover, requiring them to abide by Glucksberg does not repeat the analytical error of Bowers v. Hardwick, (cite). Indeed, Lawrence teaches that the private, intimate exercise of liberty rights at issue in Bowers 82

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and Lawrence do not extend to the public endorsement of same-sex marriage, a principle that Windsor confirms. See supra _____. Under the Glucksberg analysis, there is no fundamental right to same-sex marriage32. Second, no Supreme Court or Tenth Circuit decision has ever held that the federal fundamental right to marry, as Plaintiffs put it (at 32), protects every persons choice of whom to marry, regardless of gender or sexual orientation, or, alternatively, the choice to marry the one person with whom they have forged enduring ties of love and commitment. Indeed, the cases Plaintiffs cite do not involve the fundamental right to marriage, much less an asserted right to same-sex
Plaintiffs, also claim that, [l]ike any fundamental right, the freedom to marry is defined by the substance of the right itself; not the identity of the persons asserting it. AB34. But that ignores the fact that the core meaning of marriage has always and necessarily been defined by its participants. As recognized by scholars of all types, and as consistently applied by the Supreme Court, marriage between a man and a woman no doubt ha[s] been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. Windsor, 133 S. Ct. at 2689 (emphasis added); OB 7-10; Brief of State of Indiana et al. at 6; Brief of Robert George et al. at 5; Brief of American Leadership Fund et al. at 2; Brief of Sutherland Institute at 2-5; Brief of Liberty Counsel at 7-9.
32

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marriage. AB29.33 And every Supreme Court case applying the fundamental right to marry has involved only a man-woman union. See OB 39. Moreover, neither Lawrence nor Windsor relied on or hinted at a fundamental right to same-sex marriage. See Lawrence 539 U.S. at 578; Seegmiller, 528 F.3d at 771. Indeed, Lawrence recognized that the private expression of liberty it vindicated did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. 539 U.S. at 578. Likewise, for the reasons discussed above, Windsor held that DOMA violated a general liberty of the person, not because DOMA infringed a fundamental right, but because, for no legitimate purposes, it deprived married same-sex couples of much of the benefit

Hodgson v. Minnesota, 497 U.S. 417 (1990), addressed an abortion law requiring parental notification; Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), analyzed whether a statute could force the Jaycees to accept women as members; and Carey v. Population Servs. Intl, 431 U.S. 678 (1977), dealt with laws restricting the sale and advertisement of contraceptives.
33

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of a legal status that had been granted under State law. 133 S. Ct. at 2695. Moreover, by confin[ing] its opinion and holding to lawful [same-sex] marriages, 133 S. Ct. at 2695, 2696, Windsor did not invoke or endorse any fundamental rights. Neither of these aspects of Windsor makes any sense ifas Plaintiffs arguethe decision itself, or prior Supreme Court precedent, established the fundamental right Plaintiffs assert. Plaintiffs also misinterpret Windsors discussion of equal dignity. AB30-32. Given the states historic prerogative to define marriage, the Supreme Court condemned DOMAs interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power. Windsor, 133 S. Ct. at 2693 (emphasis added). In other words, when a State authorizes samesex marriages, those valid State marriages are of equal dignity to heterosexual marriages in the eyes of that Stateand for that reason must be so treated by the federal government. But Windsor cannot be read to override the sovereignty of all of the other States or to force

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them to allow same-sex marriage as a matter of federal constitutional law. Plaintiffs other cases (see AB35-38) are inapposite. Each involved the fundamental right of a man and woman to marry. Accordingly, there was no need, for example, for Loving to recognize a new right to interracial marriage,34 AB36, nor for any of the other cases cited to consider whether the next to marry extends beyond husband-wife couples. Loving (striking down anti-miscegenation laws); Boddie v. Connecticut, 401 U.S. 371 (1971) (invalidating law requiring indigent person to pay divorce fees as unduly burdensome on the right to remarry). Third, Plaintiffs are wrong in suggesting (at 34-38) that the State believes fundamental rights are defined by the persons who have

The fact that Virginias overtly racial anti-miscegenation laws violated the Lovings fundamental right to man-woman marriage thus says nothing about Plaintiffs alleged right to same-sex marriage or the constitutionality of Utah laws defining marriage as a man-woman institution. Brief of Center for Urban Renewal at 6-21; Brief of Prof. David Upham at 3-10.
34

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historically been denied it, or protected for some groups and not others. Plaintiffs straw-man arguments simply ignore the scope of the fundamental right to marry as it has historically been practiced by American (and Western) society, understood by scholars and applied by the Supreme Court: the right of a man and a woman to marry each other.35 The fact that Plaintiffsfor good reasondo not want to exercise that right as it has been understood and applied does not mean they have been denied it.36 It simply illustrates that Plaintiffs seek something new and different, which they have every right to pursue in the appropriate democratic political fora. But precedent makes clear
In fact, some gays and lesbians have chosen to exercise their fundamental right to marry a person of the opposite sex. E.g., Brief of Doug Mainwaring et al.; Brief of Parents And Friends Of Ex-Gays & Gays; see also voice(s) of hope,http://www.ldsvoicesofhope.org/. Obviously, that would be a very difficult choice for gays and lesbians who have already formed or wish to form an abiding, loving relationship with someone of the same sex. But it does highlight the difference between the man-woman marriage definition and a law prohibiting certain people to marry at allsuch as a restriction on marriage by inmates serving life sentences. See Butler, 415 U.S. at 953.
35

This same point negates Plaintiffs argument that the denial of a right to same-sex marriage renders [f]ull citizenship and limited government impossible. AB33. See Br. Amicus Curiae Sutherland Institute.
36

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that neither Plaintiffs nor this Court can use substantive due process to place the matter outside the arena of public debate and legislative action. Glucksberg, 521 U.S. at 720. Finally, Plaintiffs due process argument ignores its logical implications. As Justice Sotomayor seemed to recognize during the Hollingworth argument, if Plaintiffs are granted a fundamental right to marry someone of the same sex, it will be logically impossible to exclude from that same right participants in such things as polygamous marriages and marriages of close relativesall of whom could equally well claim a right to marry any adult with whom they have forged enduring ties of love and commitment. AB32.37 See also Jeffrey Michael Hayes, Polygamy Comes Out of the Closet: The New Strategy of

As Justice Sotomayor put it to counsel during that argument: [I]f you say that [same-sex] marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, the incest laws, the mother and child, assuming that they are of age I can accept that the State has probably an overbearing interest on protecting a child until they're of age to marry, but what's left? Tr. of Oral Argument at 46-47, Hollingsworth, No. 12-144.
37

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Polygamy Activists, 3 Stan. J. Civ. Rts. & Civ. Liberties 99, 109 (2007) (noting suggestions that polygamists are attempting to link the fortunes of their cause to the gay rights movement); cf. Brown v. Buhman, 947 F. Supp. 2d 1170, 1224-1225 (D. Utah 2013) (holding that the cohabitation prong of Utah statute criminalizing bigamy must be stricken as a violation of substantive due process under Lawrence). That slippery slope is yet another reason to reject Plaintiffs due -process argument, and leave the definition of marriage to democratic processes. C. The district court erred in concluding that Utahs marriage laws discriminate on the basis of sex. Plaintiffs fare no better in attempting to rescue the district courts conclusion that Utahs marriage laws discriminate on the basis of sex; indeed, their new focus on gender-based expectations betrays a justifiable lack of confidence in the district courts analysis. As explained in Utahs opening brief (at 45), all of the Supreme Courts decisions finding unconditional sex discrimination have invalidated statutes that singled out men or women as a discrete class for unequal treatment. Indeed, in Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75, 80 (1998), the Court held that discrimination based on 89

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sex means that members of one sex are exposed to disadvantageous terms or conditions . . . to which members of the other sex are not exposed. Accord, e.g., Reed v. Reed, 404 U.S. 71 (preference for men over women when administering estates); Frontiero v. Richardson, 411 U.S. 677 (1973) (different burdens for men and women to establish spousal dependency); Craig v. Boren, 429 U.S. 190 (1976) (different drinking ages for men and women); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) (men barred from nursing school); United States v. Virginia, 518 U.S. 515 (1996) (women barred from military college). Here, it is indisputable that Utahs marriage laws do not single out either men or women as a class. Utahs laws do not differentiate between male same-sex couples and female same-sex couples. Utahs laws do not place additional burdens on only men or women. And Utahs laws do not rely on any stereotypes applicable to men or women. As the district court put it in Bishop v. U.S., the man-woman definition of marriage has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis. Bishop, --- F.Supp.2d ---, 2014 WL 116013, at *24 (N.D. 90

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Okla. Jan. 14, 2014) (citing Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012) (Nevadas prohibition of same-sex marriage not directed toward persons of any particular gender); and Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1099 (D. Haw. 2012) (The Court thus agrees with the vast majority of courts considering the issue that an opposite-sex definition of marriage does not constitute gender discrimination.); see also Brief of Family Research Council at 16-20 (citing thirteen state reviewing courts, five federal courts, and the D.C. Court of Appeals as all holding that opposite-sex marriage laws do not constitute sex discrimination). Against the overwhelming weight of authority, Plaintiffs (at 5657) urge this Court to hold that Utahs marriage laws classify by gender on a person-by-person basis, citing Loving. But Loving is inapposite. See supra Section II.B. Unlike Utahs marriage laws, which classify based on gender complementarity, [t]here can be no question but that Virginias miscegenation statutes rest solely upon distinctions drawn according to race. Loving, 388 U.S. at 11. As the Court put it, [t]he fact that Virginia prohibits only interracial marriages involving white 91

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persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. Id. Here, by contrast, it cannot be said that Utahs laws were enacted to maintain male or female supremacy. Turner, 482 U.S. at 96. Nor can it be said (as Plaintiffs do at 63) that Utahs laws are based on impermissible gender stereotypes. These laws simply acknowledge that women and men bring undeniably unique gifts to parenting, gifts that are different and complementary. See, e.g., Virginia, 518 U.S. at 533 (a community made up exclusively of one [sex] is different from a community composed of both. (quoting Ballard v. United States, 329 U.S. 187, 193 (1946)); Nguyen v. INS, 533 U.S. 53, 73 (2001) (To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.). Where, moreover, does Amendment 3 suggest, as Plaintiffs claim (at 61), that all married men must be breadwinners or that all married women must be home-makers? Utahs position is not that men and women need to play any particular roles; the point is simply that 92

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children benefit from having parents of both genders because there is something fundamentally differentand valuableabout each. Plaintiffs gender roles argument likewise cannot give rise to heightened scrutiny. D. There is no basis for heightened scrutiny based on sexual orientation. Plaintiffs finally argue for heightened scrutiny based on sexual orientation. But putting aside Plaintiffs failure even to show that the man-woman marriage definition actually discriminates on that basis, 38

As noted above, Utah law allows every person, regardless of sexual orientation or gender, to marry a person of the opposite sex. Thus, as a technical and logical matter, Utah law cannot be said to classify on the basis of gender or sexual orientation. This fact of logic has been recognized by numerous jurists. See Lawrence, 539 U.S. 599-600 (Scalia, J. dissenting) (joined by Thomas, J. and Rehnquist, C.J.) (noting same with respect to equal protection analysis of sodomy law); Hernandez , 855 N.E.2d at 11 (Graffeo, J., concurring) (joined by G.B. Smith, J); Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 519-20 (Conn. 2008) (Zarella, J., dissenting); Andersen v. King Cnty., 138 P.3d 963, 997 (Wash. 2006) ( Johnson, J., concurring in judgment) (joined by Sanders, J.); Goodrich v. Dept of Pub. Health, 798 N.E.2d 941, 994 (Mass. 2003) (Cordy, J., dissenting) (joined by Sina and Sosman, JJ.). Lawrence, moreover, did not rest on equal protection, but on due process. Lawrence, 539 U.S. at 574-75. Of course, for reasons discussed in the text,
38

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even the district court correctly recognized that this Court currently applies only rational basis review to classifications based on sexual orientation. Decision at 36 (citing Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008)); accord Bishop v. U.S., ---F. Supp. 2d ---, 2014 WL 116013 at *25 (N.D. Okla. Jan. 14, 2014) (Classifications against homosexuals and/or classifications based on a persons sexual orientation are not subject to any form of heightened review in the Tenth Circuit.) (citations omitted). That rule is consistent with that of at least nine other circuits. See OB43-44 n.10. It is also consistent with the Supreme Courts refusal to apply heightened scrutiny to sexualorientation classifications in Windsor, where the plaintiffs and the federal government expressly asked the Court to reach that very result. OB43-45.

this Court need not decide whether man-woman marriage laws discriminate on the basis of sexual orientation.

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Against the weight of this authority, Plaintiffs (at 48-55 n.12) characterize this Courts holding in Price-Cornelison as mere dicta and argue that the Court should reach a different conclusion now. Plaintiffs are incorrect on both counts. In Price-Cornelison, the plaintiff adequately alleged [defendant] Brooks deprived her of equal protection of the law when he refused to enforce her permanent protective order. Price-Cornelison, 524 F.3d at 1113. To resolve that claim, this Court necessarily determined the level of scrutiny to apply to the defendants action. And it held that rationalbasis review applied because plaintiffs claim did not implicate a protected class, which would warrant heightened scrutiny this court, like many others, has previously rejected the notion that homosexuality is a suspect classification. Id. at 1113 & n.9 (relying on decisions from nine other circuits plus Romer v. Evans, 517 U.S. 620, 631-33 (1996)). This was not mere dictum but part of a carefully crafted holding that maintained uniformity among the circuits. Moreover, even if the posture of the present suit were an en banc rehearing, and thus suitable for revisiting Price-Cornelison, overruling 95

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that decision would be improper. First, the Supreme Court has been reluctant to apply heightened scrutiny to any new classification. The Court first recognized that sex-based classifications were subject to heightened scrutiny in 1976, Craig v. Boren, 429 U.S. 190 (1976), and it recognized illegitimacy as a classification subject to heightened review in 1982, Mills v. Habluetzel, 456 U.S. 91, 99 (1982). In the more than 30 years since, the Court has consistently declined to recognize any new classifications that warrant heightened scrutiny. Second, various plaintiffs have thrice asked the Supreme Court to apply heightened scrutiny to sexual-orientation classification, specifically in Windsor, Romer, and Lawrence.39 Each time, the Court has declined to so holdeven though in some cases (Windsor and Romer) the lower court had relied on a heightened standard.

Though not relevant to the issues presented, Plaintiffs characterize Lawrence as holding that sexual orientation is a fundamental aspect of human identity that the state has no legitimate interest in punishing or attempting to change. AB53. Lawrence doesnt say that, and Plaintiffs have no page citation for such a holding. More important, Utah is not trying to punish nor attempting to change anyones sexual orientation.
39

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Third, federalism concerns justify a lower level of scrutiny. While [q]uestions of federalism are always inherent in the process of determining whether a States laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny, federalism principles counsel against applying higher scrutiny where a court is urged to strike down widely prevailing laws pertaining to areas of traditional state regulation. See, San Antonio Ind. Sch. Dist. v. Rodriquez, 411 U.S. 1, 44 (1973) (explaining refusal to apply higher level of scrutiny in part because it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.) 40

Because there is no basis under existing Supreme Court precedent to consider whether sexual orientation can qualify as an equal-protection classification entitled to heightened scrutiny, there is no need to consider the four-factor analysis for identifying new protected classes. See AB50-55. But the State would be remiss not to respond to Plaintiffs claim (at 54-55) that the gay and lesbian communities are politically powerless a key
40

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Accordingly, there is no reason for this Court to depart from existing circuit precedent that applies rational-basis review to classifications based on sexual orientation. III. THE DISTRICT COURTS DECISION IMPROPERLY IMPOSES FEDERAL HOMOGENIZATION RATHER THAN PERMITTING THE POLICY EXPERIMENTATION INHERENT IN VIBRANT FEDERALISM. Plaintiffs final argument (AB96-97) asks this Court to approve in the name of federalisman enormous federal judicial intrusion into a revered social institution that profoundly affects virtually all Utahans. Indeed, nearly every Utahan is or has been affected from birth by the presence or absence of marriage in her upbringing, and the majority of Utahns either are now or aspire to be married and have children. Because of the importance of marriage to the States interests, the federal intrusion the Plaintiffs seek to defend is therefore

prerequisite of a suspect class. E.g., Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982) (quoting San Antonio Indep. Sch. Dist., 411 U.S. at 28). As the amicus brief of Concerned Women for America demonstrates (at 14-35), gays and lesbians have substantial political power both in Utah and nationally.

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far more significant than invalidating a state-imposed death penalty, nullifying a statutory restriction on abortion, or, as in Lochner, overturning an economic regulation. Indeed, it is difficult to imagine a greater intrusion into state sovereignty. Tellingly, Plaintiffs federalism argument neglects the Tenth Amendment, which commands that [t]he powers not delegated to the United States by the Constitution are reserved to the States respectively, or to the people. U.S. Const. amend. X. And surely those who wrote and ratified the post-Civil War Amendments in the latter part of the 19th Centurywho were specifically concerned with political disenfranchisement due to race41could never have imagined that they

See, e.g., Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York: NYU Press, 2013)114-16 (discussing equal protection from laws stigmatizing because of historical station of birth, such as illegitimacy and race); Akhil Reed Amar, Americas Constitution: A Biography 384-85 (New York: Random House, 2005) (same); Earl M. Maltz, Civil Rights, the Constitution and Congress, 1863-1869, 101-02 (Lawrence: University of Kansas Press, 1990) (same).
41

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were delegating to the United States judiciary the power to order unwilling States to recognize marriages between people of the same sex. Such a sweeping use of federal judicial power would effectively federalize domestic relations lawjust as Lochner, for a time, federalized regulation of intrastate commerce. Worse than Lochner, however, a decision invalidating the State laws at issue here would effectively impose a system of unequal sovereignty. Under the new federal system embraced by the district courts decision, States could retain their traditional authority over domestic relationsa matter even more important to many States than intrastate commerceonly so long as they hew to the evolving views of national opinion leaders. But if a State chooseseven when supported by sound logic, experience and social scienceto reject those views, it would effectively lose its sovereignty over marriage and other sensitive domestic relations matters. Ironically, then, much as Windsor condemned DOMA for having created a class of second-class marriages, 133 U.S. at 2693, an affirmance of the decision below would create a class of second-class

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sovereignsthose with populations the federal judiciary deems too backward or ill-informed to fall in line behind national opinion leaders. Such a decision would also run counter to the holdings of national and supra-national courts around the worldvirtually all of which have held that whether to redefine marriage to include same-sex relationships is a decision properly left to the people and their democratically elected representatives.42 For similar reasons, an affirmance of the decision below would squelch what Justice Breyer has called the active liberty of democratic decision-making.43

See, e.g., See Schalk and Kopf v. Austria, App. No. 30141/04 (ECtHR, 24 June 2010) (holding Austrias refusal to allow judicial recognition of same-sex marriage was within Austrias margin of appreciation, but noting with approval the passage of civil partnership legislation); see generally Durham, Smith and Duncan, supra note 22.
42

[T]he Constitution [is] centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government. Stephen G. Breyer, Active Liberty: Interpreting Our Democratic Constitution 21 (2005). Accordingly, judicial modesty in constitutional decision-making is essential. Id. at 37; see also id. at 17.
43

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That kind of liberty is particularly important in times of rapid social change, when our ability to preserve and honor diversity of opinion, and our ability to experiment with new ideas, are most precious. Through democratic processes, such experimentation is now occurring in the several states on the crucial subject of marriage. Public opinion is apparently in flux. No one yet knows what the ultimate outcome will be, either nationally or in any given State. But the fact that different States have thus far chosen different paths is not a sign of political weakness; it is a sign of a healthy and diverse national republic. If affirmed by this Court, however, the district courts decision would terminate within this Circuit that State-by-State experimentation and all the democratic participation and debate that go with it. As to the subject of marriage, it would bring active liberty to a screeching halt, replacing it with a homogenized, one-size-fits-all federal solution. An affirmance would thereby destroy any opportunity for the kind of democratic compromise and accommodation that could otherwise ultimately produce, in each State, a peaceful and relatively 102

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harmonious resolution of what is now, in many places, a highly contentious issue. For these reasons too, the State respectfully asks this Court to allow the people of Utah to choose for themselves how to strike the proper balance between the competing interests at stake in this case a balance that in their judgment best serves the interests of all of Utahs children, present and future.

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CONCLUSION This Court should reverse the district courts grant of summary judgment to the Plaintiffs, and vacate the permanent injunction. Date: March 14, 2014. Respectfully submitted, /s/ Gene C. Schaerr GENE C. SCHAERR Special Asst. UT Attorney General BRIAN L. TARBET Chief Deputy UT Attorney General PARKER DOUGLAS Chief of Staff & Counsel General STANFORD E. PURSER PHILIP S. LOTT Assistant UT Attorneys General 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 (phone) gschaerr@gmail.com JOHN J. BURSCH Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste. 900 Grand Rapids, Michigan 49503 616-752-2474 jbursch@wnj.com

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MONTE N. STEWART 12550 W. Explorer Dr., Ste. 100 Boise, Idaho 83713 208-345-3333 stewart@stm-law.com

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because: [x] this brief contains 19,467 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: [x] this brief has been prepared in a proportionally spaced typeface using Word in 14 point Times New Roman font. /s/ Gene Schaerr

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ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made;

2. hard copies of the foregoing brief required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses. /s/ Gene Schaerr

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CERTIFICATE OF SERVICE I hereby certify that on the 14th of March, 2014, a true, correct and complete copy of the foregoing Reply Brief of Appellants was filed with the Court and served on the following via the Courts ECF system: Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com

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

rchamness@slco.org dgoddard@slco.org

/s/ Gene Schaerr

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