Utah Legislature Amicus

8/13/2019 Utah Legislature Amicus

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No. 13-4178

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DEREK KITCHEN, individually, et al.,

Plaintiffs-Appellees,

v.

GARY R. HERBERT, in his officialcapacity as Governor of Utah, et al.,

Defendants-Appellants,

and

SHERRIE SWENSEN, in her officialcapacity as Clerk of Salt Lake County,

Defendant.

(Appeal from the United States DistrictCourt for the District of Utah,

Civil Case No. 2:13-CV-00217-RJS)

__________________________________________

BRIEF OF AMICI CURIAE EIGHTY ONE UTAH STATE LEGISLATORS IN SUPPORT

OF DEFENDANTS-APPELLANTS AND REVERSAL

__________________________________________

Robert T. Smith

Counsel of Record*

1977 Regal Stream CoveSalt Lake City, UT 84121

[email protected]

*Admission pending

Attorney for Amici Curiae

Appellate Case: 13-4178 Document: 01019200467 Date Filed: 02/10/2014 Page: 1


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, the undersigned states that the amiciare not

a corporation that issues stock or has a parent corporation that issues stock.

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TABLE OF CONTENTS

Corporate Disclosure Statement ................................................................................ iTable of Authorities ................................................................................................. ivInterest of AmicI Curiae ............................................................................................1Argument....................................................................................................................2I. Amici Feel Keenly Their Responsibility in Our Federal System to

Adopt Domestic Relations Laws That Will Benefit the States Citizens,

Especially Its Children .....................................................................................2A. States Have Responsibility for Domestic Relations Laws .................... 2B. State Legislators Represent the Voice of the People in Enacting

Domestic Relations Laws ......................................................................3C. The Broader Implications of Changing Utahs Definition of

Marriage Warrant Deference ................................................................. 5II. Utah Law Prioritizes Childrens Opportunity to be Raised by a Married

Mother and Father ............................................................................................6A. Birth and Adoption ................................................................................8B. Legal Parenthood .................................................................................11C. Education .............................................................................................12D. Premarital Counseling .........................................................................13E. Utah Marriage Commission ................................................................14F. Preserving Ties to Natural Parents ......................................................15G. Divorce ................................................................................................16

Conclusion ...............................................................................................................18CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................19CERTIFICATE OF SERVICE ................................................................................21

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CERTIFICATE OF DIGITAL SUBMISSION .......................................................23APPENDIX 1 ...........................................................................................................24

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TABLE OF AUTHORITIES

CasesBond v. United States, 131 S.Ct. 2355, 2359 (2011) .................................................4

Hernandez v. Robles, 7 N.Y.3d 338, 361 (2006) .......................................................7

In re J.W.F., 799 P.2d 710, 713 (Utah 1990) ...........................................................11

Lofton v. Secretary of Department of Children and Family Services, 358 F.3d

804,819 (11thCir. 2004), affd 377 F.3d 1275 (11thCir. 2004) (en banc) .......4, 16

Loving v. Virginia, 388 U.S. 1 (1967) .......................................................................3

National Federation of Independent Businesses v. Sebelius, 132 S.Ct. 2566, 2578

(2012) .................................................................................................................3, 4

Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383384 (1930) ................................3

Pearson v. Pearson, 2008 UT 24, 11, (2008) ........................................................11

Turner v. Safley, 482 U.S. 78 (1987) .........................................................................3

Williams v. Pryor, 240 F.3d 944,949 (11thCir. 2001) ...............................................4

Windsor v. United States, 133 S.Ct. 2675, 2689-2690 (2013) ..................................2

Zablocki v. Redhail, 434 U.S. 374 (1978) ................................................................. 3

StatutesUtah Code 26-2-10 ...................................................................................................9

Utah Code 26-6-3 ...................................................................................................13

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Utah Code 30-1-2 .....................................................................................................7

Utah Code 30-1-30 .................................................................................................13

Utah Code 30-1-4.1 ..............................................................................................7, 8

Utah Code 30-3-10 .................................................................................................17

Utah Code 30-3-10.2 ..............................................................................................17

Utah Code 30-3-11.2 ..............................................................................................16

Utah Code 30-3-32 .................................................................................................17

Utah Code 30-8-4 ...................................................................................................14

Utah Code 53A-13-101 ..........................................................................................13

Utah Code 62A-1-120 ............................................................................................14

Utah Code 62A-4a-103 ..........................................................................................15

Utah Code 62A-4a-107 ..........................................................................................15

Utah Code 62A-4a-201 ..........................................................................................15

Utah Code 62A-4a-203 ..........................................................................................15

Utah Code 62A-4a-607 ..........................................................................................10

Utah Code 78A-6-102 ............................................................................................16

Utah Code 78A-6-503 ............................................................................................16

Utah Code 78B-15-204 ..........................................................................................11

Utah Code 78B-15-703 ..........................................................................................12

Utah Code 78B-15-801 ..........................................................................................12

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Utah Code 78B-16-607 ..........................................................................................11

Utah Code 78B-6-114 ..............................................................................................9

Utah Code 78B-6-117 ........................................................................................9, 10

Utah Code 78B-6-132 ............................................................................................10

Utah Code 78B-6-102 ................................................................................................9

Constitutional ProvisionsUtah Const., art. I, sec 29 ...........................................................................................7

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INTEREST OF AMICI CURIAE1

Amici are eighty-one members of the Utah Legislature.2 In 2004, the

constitutionally required 2/3 majority of this body adopted the state constitutional

marriage amendment ratified by 66% of voters later that same year. We are sincerely

dedicated to representing and protecting the interests of all Utah citizens. We

especially feel a profound duty to the children of the State, derived from deep

historical roots and experience that confirm children are substantially benefited and

best served by public endorsement and recognition of marriage as the legal union

between a man and a woman as husband and wife. This promotes and protects a

childs bond with their biological parents bound together as a married mother and

father. This is no mere conjecture. Utah has the lowest percentage of unwed births

in the nation, is highest among states in the percentage of children being raised by

both parents from birth until age 17, and Utah children, even in the lowest-income

households, have one of the highest rates of upward mobility. Brief of Appellants

at 70. Amici firmly believe that the States endorsement of the male-female

definition of marriage has helped to produce these positive outcomes.

1No partys counsel authored the brief in whole or in part, and no one other than the

amici curiae, its members, or its counsel contributed money that was intended to

fund preparing or submitting the brief. This brief is filed with consent of all parties;thus no motion for leave to file is required. SeeFed. R. App. P. 29(a).2Names are included in Appendix 1.

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ARGUMENT

I. Amici Feel Keenly Their Responsibility in Our Federal System to AdoptDomestic Relations Laws That Will Benefit the States Citizens,

Especially Its Children

In our constitutional system, amiciacting as state legislators have sovereign

responsibility for matters of domestic relations. With that responsibility, amicifeel

a strong obligation to pass laws that will benefit and protect the States children.

A. States Have Responsibility for Domestic Relations Laws[O]ur Constitution establishes a system of dual sovereignty between the

States and the Federal Government. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

As the Supreme Court explained last term: By history and tradition the definition

and regulation of marriage . . . has been treated as being within the authority and

realm of the separate States. Windsor v. United States, 133 S.Ct. 2675, 2689-2690

(2013). The Court noted [t]he recognition of civil marriages is central to state

domestic relations law applicable to its residents and citizens. Windsor, 133 S.Ct.

at 2691. Further, [t]he definition of marriage is the foundation of the States broader

authority to regulate the subject of domestic relations with respect to the

[p]rotection of offspring, property interests, and the enforcement of marital

responsibilities. Windsor, 133 S.Ct. at 2691.As a result, it is a long established

precept that the incidents, benefits, and obligations of marriage . . . may vary, subject

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to constitutional guarantees3, from one State to the next. Windsor, 133 S.Ct. at

2692. This is true from the beginning of the nations history: [W]hen the

Constitution was adopted the common understanding was that the domestic relations

of husband and wife and parent and child were matters reserved to the States.Ohio

ex rel. Popovici v. Agler, 280 U. S. 379, 383384 (1930). As the Supreme Court has

stated: the facets of governing that touch on citizens daily lives are normally

administered by smaller governments closer to the governed.National Federation

of Independent Businesses v. Sebelius, 132 S.Ct. 2566, 2578 (2012).

Implicit in the States virtually plenary power is the States principal

responsibility for ensuring the welfare of the children in the State. This is a

responsibility the legislature feels profoundly acting in its sovereign responsibility

for all of its citizens.

B. State Legislators Represent the Voice of the People in EnactingDomestic Relations Laws

The responsibility of state legislators is particularly weighty since, in a

representative government, they must reflect the considered judgment of the people

3The constitutional guarantees referenced are met here since all of the cases thathave constrained the states regulation of marriage have involved laws that

prevented individuals otherwise qualified for marriage from marrying, and have notgone to the essentials of what marriage means as the claim in this case does. See

Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978);Turner v. Safley, 482 U.S. 78 (1987). Utah does not prevent plaintiffs, or any other

person, from forming private intimate relations.

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of the State. See Lofton v. Secretary of Department of Children and Family Services,

358 F.3d 804, 818-19 (11thCir. 2004), affd 377 F.3d 1275 (11thCir. 2004) (en banc);

certiorari denied, 543 U.S. 1081, 125 S.Ct. 869 (2005); Williams v. Pryor, 240 F.3d

944, 949 (11thCir. 2001). The Supreme Court has noted the expertise [and] the

prerogative to make policy judgments. . . . are entrusted to our Nations elected

leaders.National Federation of Independent Businesses v. Sebelius, 132 S.Ct. 2566,2578 (2012).

As state legislators, we perform this responsibility with due regard to the

interests of our citizens and particularly children. In Windsor, the U.S. Supreme

Court spoke of the New York legislatures decision as a statewide deliberative

process that enabled its citizens to discuss and weigh arguments for and against

same-sex marriage, Windsor, 133 S.Ct. at 2689, that reflect[ed] . . . the

communitys considered perspective, 133 S.Ct.at 2692-2693, and respond[ed] to

the initiative of those who [sought] a voice in shaping the destiny of their own

times. 133 S.Ct. at 2692 (quoting Bond v. United States, 131 S.Ct. 2355, 2359

(2011)). The majority in Windsor could not have been clearer when it said: The

dynamics of state government in the federal system are to allow the formation of

consensus respecting the way the members of a discrete community treat each other

in their daily contact and constant interaction with each other. Windsor, 133 S.Ct.

at 2692.

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This principle of state sovereignty and consensus applies with as much force

to the legislature and people of Utah as it does to those of New York.4It is also an

accurate description of what the Utah legislature did when it established the current

family laws of this State and, in the case of Utahs marriage amendment, with the

direct participation and voice of Utahs citizens.

C. The Broader Implications of Changing Utahs Definition ofMarriage Warrant Deference

Utahs marriage law reflects the people of the States sincere respect and

empathy for all citizens while also affirming that such genuine devotion to the

interests and welfare of all does not require the redefinition of marriage and

severance of the peoples deep roots and traditions. In fact, it is the judgment of

amici, as Utah legislators, that the proposed mandate from the court below to change

and redefine marriage would put the integrity of Utahs child-oriented constitutional

and statutory structure for the protection of domestic relationships, with its long-

established benefits, at substantial risk. The U.S. Supreme Court in Windsor

correctly recognized that [t]he definition of marriage is the foundation of the States

broader authority to regulate the subject of domestic relations with respect to the

4The consensus of the people of Utah is not only reflected by the 66% majorityof voters who supported the constitutional amendment, but the 2/3 majority of both

the Utah Senate and House of Representatives that supported the constitutionalamendment in 2004, and a like number in these bodies as constituted 10 years later,

who have joined together now as amici curiaein submitting this brief.

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[p]rotection of offspring, property interests, and the enforcement of marital

responsibilities. Windsor, 133 S.Ct. at 2691 (quoting Williams v. North Carolina,

317 U.S. 287, 298 (1942)). If the definition of marriage is foundational to a States

regulation of domestic relationships, then by implication a redefinition of marriage

potentially upends state regulation of all other domestic relationships at their core.

Numerous statutory provisions could be impacted by a redefinition of marriage.5We

do not believe that a court, considering only the interests of plaintiffs in the case

before it, should intrude into the States domestic relations authority by attempting

a redefinition of marriage that would entail such profound, far-reaching and

unconsidered consequences. Rather, it should defer, as the U.S. Supreme Court in

Windsorhas counseled, to the sovereign authority belonging to the State and its

citizens to regulate domestic relationships.

II. Utah Law Prioritizes Childrens Opportunity to be Raised by a MarriedMother and Father

In pursuance of this constitutional responsibility to craft domestic relations

law in a way that benefits the people of the State, the Utah Legislature has properly

prioritized the opportunity of children to be raised, whenever possible, by a married

mother and father. This is a recurring and pervasive element of its laws.

5 It is noteworthy that a simple word search of the terms child, marriage,

parent, mother and father reveals that the separate sections of the Utah Codethat might warrant some degree of analysis and reconsideration number in the

hundreds if marriage is redefined.

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In this case, the plaintiffs and the court below have suggested that Utahs

marriage amendment (Utah Const., art. I, sec 29) and related statutory recognition

of marriage (Utah Code 30-1-2; Utah Code 30-1-4.1) are nothing more than a

statement of the inferiority of same-sex relations. In oral argument on the motions

for summary judgment, plaintiffs attorney asserted that the legislative debates over

the Amendment disclosed a purpose of exclusion that was based on animus, pure

and simple. Kitchen v Herbert, Transcript of Hearing on Motions for Summary

Judgment (Dec. 4, 2013) at 18. The court below appropriately refrained from making

any factual finding of animus but asserted that the goal of the marriage amendment

was the imposition of inequality. Kitchen v. Herbert, No.2:13-cv-00217 (2013),

slip op. at 39.

The error in these conjectural and intemperate assertions is demonstrated by

a simple observation: Utahs marriage amendment and related statutes are part of a

wide range of state laws rooted in history and experience and designed to endorse

and encourage each childs opportunity to be reared by a married mother and father.

This fact makes abundantly clear that preserving this rationalindeed compelling

policy is the proper explanation for the marriage amendment.6

6InHernandez v. Robles, 7 N.Y.3d 338, 360-61 (2006), the high court of New York

concluded:[T]here are rational grounds on which the Legislature could choose to restrict

marriage to couples of opposite sex. Plaintiffs have not persuaded us that this

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As the State noted in its opening brief, Utahs compelling interest in and

commitment to children being raised by a biological mother and father, or other man-

woman unions, is reflected throughout its domestic relations laws. Brief of

Appellants at 14. The States brief references more than a dozen instances in Utah

Code but the policy is woven into and repeatedly stated throughout the laws of the

State on a range of topics.7

A. Birth and AdoptionThe relevant statutes include legal matters connected to a childs birth. Utah

law provides that, in addition to adoption or parentage determinations, a child who

has been legitimized by the subsequent marriage of his natural parents can request

long-accepted restriction is a wholly irrational one, based solely on ignorance

and prejudice against homosexuals. . . .. . .. . . [T]he traditional definition of marriage is not merely a by-product of

historical injustice. Its history is of a different kind.The idea that same-sex marriage is even possible is a relatively new one.

Until a few decades ago, it was an accepted truth for almost everyone who hasever lived in any society, in which marriage existed, that there could bemarriages only between participants of different sex. A court should not

lightly conclude that everyone who held this belief was irrational, ignorant orbigoted. We do not so conclude.

Accordingly, the New York court held that whether marriages between members ofthe same sex should be recognized is a question to be addressed by the Legislature.

Hernandez v. Robles, 7 N.Y.3d at 356 (2006).7At the same time, Utah law as a whole is deeply and genuinely compassionate and

protective of any contract or other rights, benefits, or duties that are enforceableindependently of the legal effect of marriage. Utah Code 30-1-4.1(2) (adopted in

the same session as the legislature adopted the marriage amendment).

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a supplementary birth certificate (Utah Code 26-2-10), signaling the States

recognition of the importance of the childs bond to married parents.

One of the most difficult questions the State must face is what shall be done

when a child cannot be reared by his or her own mother and father. In making

provision for adoptions, the State consistently seeks to provide the child with the

opportunity to be reared by a married mother and father. The States intent is that

adoptions should be governed by the known and demonstrated best interest of the

child. Thus, in statute, it specifically finds that it is not in a childs best interest to

be adopted by a person or persons who are cohabiting in a relationship that is not a

legally valid and binding marriage under the laws of this state. Utah Code 78B-6-

102(1) & (4). If a married individual seeks to adopt, he or she must have the consent

of the spouse. Utah Code 78B-6-114. The statutory direction of who may adopt

provides affirmatively for adoption by married couples: A child may be adopted

by: (a) adults who are legally married to each other in accordance with the laws of

this state. Utah Code 78B-6-117(2). By contrast, it specifies: A child may not be

adopted by a person who is cohabiting in a relationship that is not a legally valid and

binding marriage under the laws of this state.Id. at (3).

In the case of a child for whom the State has custodial responsibility, [i]n

order to provide a child who is in the custody of the division with the most beneficial

family structure, when a child in the custody of the division is placed for adoption,

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the division or child-placing agency shall place the child with a man and a woman

who are married to each other unless there are no qualified married couples; the

child is placed with a relative, someone who has already developed a substantial

relationship with the child or someone chosen by a parent; or the best interests of

the child require placement with a single person.Id. at (4). The State will also

not place a child for adoption, either temporarily or permanently, with any

individual or individuals who do not qualify for adoptive placement pursuant to

these provisions. Utah Code 62A-4a-607(1)(b).

When a child is in state protective custody and foster parents or other

applications for adoption are under consideration, Utah law provides that it is the

public policy of the State to [place] an adoptable child with a married couple

whenever possible. Utah Code 78B-6-132. The most recent annual report of the

Division of Child and Family Services indicates 87.3% of children placed for

adoption from foster care were placed with married couples. Utahs Division of

Child and Family Services, Annual Report 2013 26 (2014) at

http://dcfs.utah.gov/pdf/reports/annual%20report%202013.pdf.

The States adoption law thus clearly favors providing children who will be

placed for adoption in a home with a married mother and father except when some

compelling interest counsels otherwise.

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B. Legal ParenthoodThe status of legal parent is statutorily linked to marriage in order to favor

childrearing by a married mother and father. Utahs Uniform Parentage Act

provides: A man is presumed to be the father of a child if: he and the mother of the

child are married to each other and the child is born during the marriage or within

300 days of the end of the marriage. Utah Code 78B-15-204(1). The importance of

this policy is underscored by the fact that this result will obtain even if he and the

mother of the child married each other in apparent compliance with law, even if the

attempted marriage is or could be declared invalid.Id. at (1)(c). This presumption

can only be challenged by the mother or presumed father and in the former

circumstance, she has the burden of proving that it would be in the best interests of

the child to disestablish the parent-child relationship. Utah Code 78B-16-607.

In the circumstances where a child is conceived as the result of an extramarital

sexual relationship, the legal policies in Utah law that govern whether an individual

has standing to challenge a presumption of paternity include preserving the

stability of the marriage. Pearson v. Pearson, 2008 UT 24, 11, 182 P.3d 353, 355

(Utah 2008) (quoting In re J.W.F., 799 P.2d 710, 713 (Utah 1990)). This policy

extends not only to the preservation of spousal unity, but also to the preservation of

parent-child relationships created by the marriage. Pearson, 2008 UT 24, at 11,

182 P.3d at 355-56. Further:

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[T]he policy of encouraging the marital father to stay married to the

childs mother and to assume parental responsibility for the child is notrendered irrelevant by the fact that this particular marriage ended in

divorce. The parent-child relationships created by marriage last beyond

the dissolution of the individual marriage. Recognition and protectionof these relationships encourages the acceptance of parental

responsibility and the formation of relationships between maritalfathers and children who are born into their marriage. We have

previously emphasized the importance of preserving family harmonybetween spouses as a policy consideration for favoring

legitimacy. Favoring legitimacy also promotes family harmonybetween parents and children by protecting and preserving these crucial

relationships.

Pearson, 2008 UT 24 at17, 182 P.3d at 356-57.

Similarly, the husband of the mother of a child born as the result of assisted

reproduction is the father of the child unless he does not consent and contests

paternity within two years. Utah Code 78B-15-703 & 705. The husband of a

gestational mother, in addition to the mother herself, must relinquish parental rights

and the intended parents shall be married, and both spouses must be parties to the

gestational agreement. Utah Code 78B-15-801.

These laws ensure children whose paternity might be challenged will have the

stability of a married mother-father relationship in all but the most unusual

circumstances.

C. EducationAs the State has noted, its commitment to children being reared by a married

husband and wife begins even before a couple is married and any children are

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born. Brief of Appellants at 15. Curriculum in the public schools that touches on

human sexuality stresses the importance of abstinence from all sexual activity

before marriage and fidelity after marriage and may not include the advocacy of

sexual activity outside of marriage. Utah Code 53A-13-101. This same emphasis

is required in educational programs related to control of communicable diseases.

Utah Code 26-6-3. Thus, teaching that could be attributable to the State will

underscore the message that sexual relationships between men and women ought to

occur only within marriage. This ensures that children who might result from such

relationships will be more likely to be born into families with a married mother and

father.

D. Premarital CounselingThe State also has a statutory expression of its policy to enhance the

possibility of couples to achieve more stable, satisfying and enduring marital and

family relationships by providing opportunities for and encouraging the use of

premarital counseling prior to securing a marriage license by persons under 19 years

of age and by persons who have been previously divorced. Utah Code 30-1-30. At

the outset of these marriages, the State encourages strong marriage that will make

more likely that the children born to the couple will have the opportunity to spend

their minority in a home headed by stably married parents. The vital link between

marriage and children is underscored before marriage by a prohibition of provisions

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in premarital agreements that purport to affect the right of a child to support. Utah

Code 30-8-4. Couples are thus on notice that being married means taking

responsibility for the children that will result from the marriage.

E. Utah Marriage CommissionThe Legislature has also created the Utah Marriage Commission with a

mission to promote coalitions and collaborative efforts to uphold and encourage a

strong and healthy culture of strong and lasting marriages and stable families;

contribute to greater awareness of the importance of marriage and leading to reduced

divorce and unwed parenthood in the State; promote public policies that support

marriage; promote programs and activities that educate individuals and couples on

how to achieve strong, successful, and lasting marriages . . .; actively promote

measures designed to maintain and strengthen marriage, family, and the

relationships between husband and wife and parents and children. Utah Code 62A-

1-120.

The Commission has an online presence (http://strongermarriage.org/) with a

wide range of information for couples on topics such as relationships,

communication, children, aging, enhancing marriage, conflict management, etc.

addressed to those married, engaged and dating. It has published The Utah Marriage

Handbook and Should I Try to Work It Out? A Guidebook for Individuals and

Couples at the Crossroads of Divorce. The Commission sponsors and promotes a

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wide range of classes for couples all over the State (the current calendar for February

lists four classes in three counties).

F. Preserving Ties to Natural ParentsUtah law consistently promotes the preservation of ties between children and

natural parents. A statutory purpose of the States Division of Child and Family

Services is to when possible and appropriate, provide preventive services and

family preservation services in an effort to protect the child from the trauma of

separation from his family, protect the integrity of the family, and the constitutional

rights of parents. Utah Code 62A-4a-103. The law requires case workers of the

Division to be trained in the importance of maintaining the parent-child relationship

whenever possible. Utah Code 62A-4a-107. The States fundamental policy

includes this statement: It is in the best interest and welfare of a child to be raised

under the care and supervision of the childs natural parents. A childs need for a

normal family life in a permanent home, and for positive, nurturing family

relationships is usually best met by the childs natural parents. Utah Code 62A-

4a-201. When removal of a child from his or her home might be warranted, the

Division will when possible and appropriate, without danger to the childs welfare,

make reasonable efforts to prevent or eliminate the need for removal of a child from

the childs home prior to placement in substitute care. Utah Code 62A-4a-203.

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The state Juvenile Courts statutory purpose includes a mandate to consistent

with the ends of justice, act in the best interests of the minor in all cases and preserve

and strengthen family ties. Utah Code 78A-6-102. The Juvenile Court Act further

specifies that the termination of family ties by the state may only be done for

compelling reasons and recognizes the right of the child to be reared by the childs

natural parents. Utah Code 78A-6-503. The State also disfavors elimination of a

mother and father from a childs life or diluting a parents relationship with a child

through the misapplication of legal doctrines such as in loco parentis, or concepts

like de factoparent or psychological parent.Jones v. Barlow, 154 P.3d 808 (Utah

2007); cf.Lofton v. Secretary of Department of Children and Family Services,358

F.3d 804,819 (11th Cir. 2004), affd 377 F.3d 1275 (11th Cir. 2004) (en banc);

certiorari denied 543 U.S. 1081, 125 S.Ct. 869 (2005).

Under these statutory enactments, children in Utah will experience the

benefits of being raised by their own mother and father except in those rare cases

where a parents unfitness may pose danger to the child.

G. DivorceGiven the importance of marriage to children, before a divorce is granted, the

couple must attend a mandatory course designed to educate and sensitize divorcing

parties to their childrens needs both during and after the divorce process. Utah

Code 30-3-11.2. As a group of scholars note, Utah is the only state in the United

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States that has mandated an additional divorce orientation education component,

which seriously raises the issue of reconciliation, to its mandated DPE [Divorcing

Parents Education] program. Tamara A. Fackrell, et al., How Effective are Court

Affiliated Divorcing Parents Education Programs? A Meta-Analytic Study 49

FAMILY COURT REVIEW107, 116 (2011).

When divorce occurs, Utah statutes provide that it is in the best interests of

the child to have both parents actively involved in parenting the child. Utah Code

30-3-32. In determining custody awards, the courts are directed to consider the

past conduct and demonstrated moral standards of each of the parties and which

parent is most likely to act in the best interest of the child, including allowing the

child frequent and continuing contact with the noncustodial parent and whether

each parent is capable of encouraging and accepting a positive relationship between

the child and the other parent, including the sharing of love, affection, and contact

between the child and the other parent. Utah Code 30-3-10 & Utah Code 30-3-

10.2. [J]oint legal custody is a rebuttable presumption. Utah Code 30-3-10.These

provisions are designed to ensure that children will benefit to the fullest extent

possible from continuing contact with both their mother and father even when those

individuals are no longer married to one another.

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CONCLUSION

When the Legislature adopted and the people of the State ratified Utahs

marriage amendment, they retained and secured in their state Constitution a legal

understanding that had already prevailed throughout the history of the State. This

understanding is consistently reflected throughout the statutes governing all

domestic relationships. This coordinated statutory scheme has worked well for

Utahs children. The purposes of Utahs marriage law are reasoned, principled, and

consistent. It is rationaleven compellingfor the laws of the State to reflect a

consistent recognition, endorsement and promotion of husband-wife marriage as the

proper and best institution for childbearing and childrearing and the perpetuation of

an ordered society.8We respectfully submit that the deference afforded the several

states by the highest court of the land in governing domestic relationships should be

applied in this case.

8We believe that Utahs male-female definition of marriage is not only related

to legitimate state interests, but also advances important and even compelling state

interests. SeeLofton v. Secretary of Department of Children and Family Services,358 F.3d 804, 818-19 (11thCir. 2004), affd 377 F.3d 1275 (11thCir. 2004) (en banc);

certiorari denied 543 U.S. 1081, 125 S.Ct. 869 (2005); Citizens for Equal Protectionv. Bruning, 455 F.3d 859 (8thCir. 2006). No state interest is more compelling than

that every child has the benefits that accrue from being raised on a daily basis by hisor her own mother and father. The States marriage and domestic relations laws

properly reflect these compelling and deeply rooted principles and public policiesfor the good of Utah and its citizens.

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For the foregoing reasons, amicirespectfully request this court to reverse the

decision of the court below.

Dated: February 10, 2014

Respectfully submitted,

s/Robert T. SmithRobert T. Smith

1977 Regal Stream Cove

Salt Lake City, UT 84121801-949-5381

[email protected]

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance with Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains ** words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Word for Mac

2011 in 14-point Times New Roman font.

Date: February 10, 2014 s/ Robert T. Smith

Robert T. Smith

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CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2014, I electronically filed the foregoing

using the courts CM/ECF system, which will send notification of such filing to the

following:

Peggy A. Tomsic [email protected]

James E. Magleby [email protected] Fraser [email protected]

MAGLEBY & GREENWOOD, P.C.170 South Main Street, Suite 850

Salt Lake City, UT 84101

Kathryn D. Kendell [email protected] P. Minter [email protected]

David C. Codell [email protected]

National Center for Lesbian Rights870 Market St., Ste. 370

San Francisco, CA 94102

Ralph Chamness [email protected]

Darcy M. Goddard [email protected] Lake County District Attorneys2001 South State, S3700

Salt Lake City, UT 84190

Gene C. Schaerr [email protected]

Brian L. [email protected] [email protected]

160 East 300 South

Salt Lake City, UT 84114-0856

John J. [email protected]

Warner Norcross & Judd LLP111 Lyon Street, NW. Ste. 900Grand Rapids, MI 49503

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Monte N. Stewart [email protected]

12550 W. Explorer Dr., Ste. 100Boise, ID 83713

Date: February 10, 2014 s/ Robert T. Smith

Robert T. Smith

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that:

(1) all required privacy redactions have been made per 10th Cir. R.

25.5;

(2) if required to file additional hard copies, the ECF submission is an

exact copy of those documents;

(3) the digital submissions have been scanned for viruses with the

most recent version of a commercial virus scanning program, Windows

Defender, updated February 9, 2014, and according to the program are

free of viruses.

s/ Robert T. Smith

Robert T. Smith

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APPENDIX 1

Utah State Senators

Stuart J. Adams (Dist. 22)Curtis S. Bramble (Dist. 16)

Allen M. Christensen (Dist. 19)

Margaret Dayton (Dist. 15)

Wayne A. Harper (Dist. 6)Deidre M. Henderson (Dist. 7)

Lyle W. Hillyard (Dist. 25)David P. Hinkins (Dist. 27)

Scott K. Jenkins (Dist. 20)

Peter C. Knudson (Dist. 17)

Mark B. Madsen (Dist. 13)Wayne L. Niederhauser (Senate President,

Dist. 9)

Ralph Okerlund (Dist. 24)Aaron Osmond (Dist. 10)

Stuart C. Reid (Dist. 18)

Brian E. Shiozawa (Dist. 8)

Howard A. Stephenson (Dist. 11)Jerry W. Stevenson (Dist. 21)

Daniel W. Thatcher (Dist. 12)John L. Valentine (Dist. 14)

Kevin T. Van Tassell (Dist. 26)

Evan J. Vickers (Dist. 28)Todd Weiler (Dist. 23)

(23 of 29 sitting Senators)

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APPENDIX 1 (CONT.)

Utah State Legislators

Jacob L. Anderegg (Dist. 6)

Jerry B. Anderson (Dist. 69)Stewart Barlow (Dist. 17)

Roger E. Barrus (Dist. 18)Jim Bird (Dist. 42)

Melvin R. Brown (Dist. 53)LaVar Christensen (Dist. 32)

Kay J. Christofferson (Dist. 56)Rich Cunningham (Dist. 50)

Brad L. Dee (Dist. 11)Jack R. Draxler (Dist. 3)

James A. Dunnigan (Dist. 39)

Rebecca P. Edwards (Dist. 20)

Steve Eliason (Dist. 45)Gage Froerer (Dist. 8)

Francis Gibson (Dist. 65)

Brian Greene (Dist. 57)

Richard A. Greenwood (Dist. 12)

Keith Grover (Dist. 61)Stephen G. Handy (Dist. 16)Gregory H. Hughes (Dist. 51)

Eric K. Hutchings (Dist. 38)

Don L. Ipson (Dist. 75)Ken Ivory (Dist. 47)

Michael S. Kennedy (Dist. 27)John Knotwell (Dist. 52)

Bradley G. Last (Dist. 71)Dana L. Layton (Dist. 60)

David E. Lifferth (Dist. 2)

Rebecca D. Lockhart(Speaker,Dist. 64)

John G. Mathis (Dist. 55)Daniel McCay (Dist. 41)

Kay L. McIff (Dist. 70)Mike K. McKell (Dist. 66)

Ronda Rudd Menlove (Dist. 1)Merrill F. Nelson (Dist. 68)

Jim Nielson (Dist. 19)Michael E. Noel (Dist. 73)

Curtis Oda (Dist. 14)Lee B. Perry (Dist. 29)

Jeremy A. Peterson (Dist. 9)

Val L. Peterson (Dist. 59)

Dixon M. Pitcher (Dist. 10)Kraig Powell (Dist. 54)

Paul Ray (Dist. 13)Edward H. Redd (Dist. 4)

Marc K. Roberts (Dist. 67)

Douglas V. Sagers (Dist. 21)

Dean Sanpei (Dist. 63)V. Lowry Snow (Dist. 74)

Robert M. Spendlove (Dist. 49)Jon E. Stanard (Dist. 62)

Keven J. Stratton (Dist. 48)

Earl D. Tanner (Dist. 43)R. Curt Webb (Dist. 5)

John R. Westwood (Dist. 72)Ryan D. Wilcox (Dist. 7)

Brad R. Wilson (Dist. 15)

(58 of 75 sitting Legislators)


Utah Legislature Amicus

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