Appellate Case: 13-4178

Document: Date S T A01019229369 TE OF UTA H Filed: 04/04/2014

OFFICE OF THE ATTORNEY GENERAL

Page: 1

SEAN D. REYES
ATTORNEY GENERAL

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SPENCER E. AUSTIN
Chief Criminal Deputy

PARKER DOUGLAS
General Counsel & Chief of Staff

BRIDGET K. ROMANO
Solicitor General

BRIAN L. TARBET
Chief Civil Deputy

April 4, 2014 Via electronic filing Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, Colorado 80257 Re: Kitchen v. Herbert, No. 13-4178 Response to Rule 28(j) citation of Tanco v. Haslam, No. 3:13-cv-01159 (M.D. Tenn. March 16, 2014), as supplemental authority

Ms. Shumaker,

The decision granting a preliminary injunction in Tanco ignores Windsors actual reasoning, which strongly supports the constitutionality of Utahs manwoman marriage definition. Plaintiffs emphasize Tancos observation that federal district courts have rejected a narrow reading of Windsor in favor of a broader view that Windsor protects the rights of same-sex couples in various contexts, notwithstanding earlier Supreme Court and circuit court precedent that arguably suggested otherwise. Rule 28(j) Letter at 2. But that statement highlights the crucial error in the decision below and in all of the district court decisions following it. Windsor itself makes clear that the States authority to define marriage was of central relevance to DOMAs unconstitutionality. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). That is why the Court could and did confine[] its opinion and . . . holding to same-sex marriages made lawful by some States. Id. at 2696 (emphasis added); see also id. (Roberts, C.J., dissenting) (The Court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the States, in the exercise of their historic and essential authority to
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Elisabeth A. Shumaker Appellate Case: 13-4178 April 4, 2014 Page 2

Document: 01019229369

Date Filed: 04/04/2014

Page: 2

define the marital relation, may continue to utilize the traditional definition of marriage. (citation and internal quotation marks omitted)). Likewise, Plaintiffs and Tancos emphasis on dignitary harms ignores Windsors oft-repeated point that DOMA inflicted such harms, and was invalid, because it rejected a States decision to bestow marriage status and accompanying dignitary interests on same-sex couples within its borders. See, e.g., Windsor, 133 S. Ct. at 2696 (DOMA is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.); id. at 2692, 2693-2696; Appellants Opening Br. at 5-6, 33-36; Appellants Reply Br. at 68-69. Nothing like that has happened here. We respectfully suggest that this Court should reject Plaintiffs invitation to expand Windsor beyond its rational limits, especially in defiance of earlier Supreme Court and circuit court precedent that arguably suggested otherwise. Respectfully submitted, /s/ Gene Schaerr 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