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Judicial Watch • Utah amicus 14 124

Utah amicus 14 124

Utah amicus 14 124

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Date Created:September 4, 2014

Date Uploaded to the Library:September 30, 2014

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No. 14-124 THE 

Supreme Court the United States 
GARY HERBERT, AL., 
Petitioners, 
DEREK KITCHEN, AL., 
Respondents. Petition for Writ Certiorari the United 
States Court Appeals for the Tenth Circuit  

BRIEF AMICUS CURIAE JUDICIAL 
WATCH, INC. SUPPORT PETITIONERS 

Paul Orfanedes 
Counsel Record 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street S.W., Ste. 800 Washington, D.C. 20024 
(202) 646-5172 porfanedes@judicialwatch.org
    Counsel for Amicus Curiae 
Dated: September 2014 
TABLE CONTENTS 

TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ...................................... 

INTERESTS THE AMICUS CURIAE .................1 

SUMMARY ARGUMENT ....................................2 

REASONS FOR GRANTING THE PETITION .........2	 
THE TENTH CIRCUIT UNLAWFULLY
 REDEFINES UTAH AMENDMENT 
ORDER APPLY STRICT SCRUTINY.......2 

II.	 
RATIONAL BASIS REVIEW APPLIES,  
AND AMENDMENT SATISFIES .............5
 
III.	 

DEMOCRATIC DECISION-MAKING MUST PROTECTED FROM JUDICIAL OVERREACH...................................................7
 
CONCLUSION............................................................9 

TABLE AUTHORITIES 
CASES 
Baker Nelson, 409 U.S. 810 (1972)  ........................ 
Baker Nelson, 191 N.W.2d 185 (Minn. 1971)  ........
 Dandridge Williams, 397 U.S. 471 (1970) .............. 
Department Agriculture Moreno, 

413 U.S. 528 (1973) .............................................. 
FCC Beach Comms, Inc., 508 U.S. 307 (1993)   
Hollingsworth Perry, 133 Ct. 2652 (2013) .........   
Heller Doe, 509 U.S. 312 (1993) .......................... 
Johnson Robison, 415 U.S. 361 (1974)  .................. 
Kitchen Herbert, Case No. 13-4178, 

10th Cir. Slip. Opinion June 25, 2014 ........... 

Schuette Coalition Defend Affirmative  
Action, 134 Ct. 1623 (2014) .............................
 
U.S. Windsor, 133 Ct. 2675 (2013) ................
 Washington Glucksberg, 521 U.S. 702 (1997) ....... 

OTHER AUTHORITIES 
William Blackstone, COMMENTARIES THE LAWS ENGLAND (Clarendon Press 1765-1769), available at:http://www.lonang.com/exlibris/blackstone/bla116.htm ....................................................................... 

INTERESTS THE AMICUS CURIAE 
Judicial Watch, Inc. (Judicial Watch) nonpartisan educational foundation that seeks promote transparency, integrity, and accountabilityin government and fidelity the rule law.Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
Judicial Watch believes that the decision the 
U.S. Court Appeals for the Tenth Circuit (Tenth Circuit) raises important issues constitutional law which should heard this Court. particular, this amicus concerned that the Tenth Circuits ruling imposes unconstitutional limits the right the people self-governance and harmsAmerican democracy. Among the harms are: adangerous distortion constitutional jurisprudence; unlawful expansion the powers the federal judiciary; and anti-democratic limitation the peoples right democratic self-governance through popular initiative and referendum. For these and other reasons, Judicial Watch urges the Court togrant the Petition for Writ Certiorari.  Pursuant Supreme Court Rule 37.6, amicus curiae Judicial Watch states that counsel for party authored this brief whole part; and that person entity, other than Judicial Watch and its counsel, made monetary contributionintended fund the preparation and submission this brief.All parties have consented the filing this brief; letters reflecting this blanket consent have been filed with the Clerk.  

SUMMARY ARGUMENT finding that rational policy reason couldsupport Amendment the Tenth Circuit redefined marriage way that subjects any denial marriage license Utah strict constitutional scrutiny. Utahs citizens have spoken loudly thatthey not view marriage granting social status (or government benefits) committed adults, but instead view marriage encouraging biologicalparents raise their own offspring together.  The Tenth Circuit should have respected this democratically-elected definition marriage, andAmendment should have been subject rationalbasis review, which easily passes. redefiningAmendment law that privileges opposite-sexcouples rather than encourages certain them more responsible parents, the Tenth Circuit hasdenied Utah citizens their fundamental right democratic self-governance. 

REASONS FOR GRANTING THE PETITION	 THE TENTH CIRCUIT UNLAWFULLY REDEFINES UTAH AMENDMENT ORDER APPLY STRICT SCRUTINY 
The Tenth Circuit erred finding that same-sex marriage fundamental right. Kitchen Herbert, Case No. 13-4178, 10th Cir. Slip. Opinion June 25, 2014 (Slip Op.) 22-42.  Fundamental rights(such the right travel) are not necessarilyenumerated the Bill Rights, but nonetheless aredeeply rooted this Nations history and tradition and implicit the concept ordered liberty. Washington Glucksberg, 521 U.S. 702, 721 (1997). The only way the Tenth Circuit was able reach itsdecision overturning Amendment was tell Utah citizens that marriage has only one lawful purpose the happiness and dignity committed adult couples.  Slip Op. 33. Utahs citizens had voted for this definition marriage, the Tenth Circuits ruling may have been correct.  But others have noted and discussed length, there are two modelsof marriage and those models are fundamentally different.  Windsor, 133 Ct. 2675, 2718 (2013)(Alito, J., dissenting). 
The Tenth Circuit justified its decision imposing its own policy preference  the adulthappiness and dignity model marriage  onUtahs citizens. contrast, Utahs citizens voted favor the responsible procreation model ofmarriage. They chose define marriage institution that encourages adults who conceive orintend conceive children together raise theirchildren together and remain committed eachother and their children.   
Based this rational policy preference, iswholly irrelevant whether same-sex couples are equally equipped skilled opposite-sex couples the tasks raising children. Amendment treats marriage not mere bestowal social recognitionor government benefits committed couples. that were the case, there would particular reason limit marriage consanguinity number. Rather, Amendment places children and child rearing the center the institution ofmarriage. encourages adults who conceive intend conceive children together raise the nextgeneration citizens committed couples, even (and especially) when one the adults might prefer abandon both the child and the mate. eminently rational limit such policychoice the class people most need encouragement: malefemale couples. other pairing can biologically reproduce, even when notintending so. The responsible procreationmodel marriage seeks bind mother and fathertogether and their offspring, thus encouraging parents use their own resources raise their ownoffspring according their own wishes and values.2 This encouragement particularly necessary whenchildren are conceived unintentionally. givesunwilling parents nudge towards prosocial, cooperative behavior. 
Our Constitution does not mandate the selection one marriage model over another, Utahscitizens were free choose the child-centered, responsible procreation model. The Tenth Circuit was wrong elevate the adult happiness and dignity model marriage the status aconstitutional mandate treating marriage fundamental right every couple regardless  William Blackstone, COMMENTARIES THE LAWS ENGLAND (Clarendon Press 1765-1769), available at: http://www.lonang.com/exlibris/blackstone/bla-116.htm ([T]he establishment marriage all civilized states built thisnatural obligation the father provide for his children ). 
biology. The Tenth Circuits decision conflicts with this Courts ruling Windsor, which held that laws which reserve marriage opposite-sex couples are subject rational basis review. U.S. Windsor, 133 Ct. 2693 citing Department Agriculture Moreno, 413 U.S. 528 (1973); see also Windsor, 133 Ct. 2706 (Scalia, dissenting). 
II. RATIONAL BASIS REVIEW APPLIES, AND UTAH AMENDMENT SATISFIES 
There marked difference between encouragement and recognition, and this difference highlights the rational basis behind Utah citizens preferred definition marriage. The responsibleprocreation model least rational, and thechoice must, therefore, left the people Utah. FCC Beach Comms, Inc., 508 U.S. 307, 313 (1993). 
Same-sex marriage advocates might point outthat many opposite-sex couples marry without any intention conceiving raising children. However, the fact that opposite-sex couples sometimes marrywithout the intention have children does not undermine the rational basis for differentiatingbetween opposite-sex and same-sex couples.  A classification does not fail rational-basis review because not made with mathematical nicety orbecause practice results some inequality. Heller Doe, 509 U.S. 312, 321 (1993) (internalcitation omitted). Limiting marriage opposite-sex couples promotes the governmental purpose encouraging the two natural parents childrenwhose conception was unplanned enter into stable relationship that would best for thosechildrens upbringing. The inclusion same-sex relationships would not promote such purpose.When, this case, the inclusion one group promotes legitimate governmental purpose, and the addition other groups would not, cannotsay that the statutes classification beneficiaries and nonbeneficiaries invidiously discriminatory. Johnson Robison, 415 U.S. 361, 383 (1974). 
Laws reviewed for rational bases are not required achieve their goals with precision.  [T]helegislature must allowed leeway approach aperceived problem incrementally. FCC, 508 U.S. 316; see also Heller Doe, 509 U.S. 312, 321 (1993). Accordingly, Utahs citizens may opt for practical,bright-line distinction between couples who can procreate and couples who cannot order toincrease the chances responsible procreation, even their legislative goal could achieved other ways. The problems government are practicalones and may justify, they not require, roughaccommodations  illogical, may be, and unscientific. Heller Doe, 509 U.S. 312, 321 (1993)(internal citation omitted). this Court has explained: 
But the Equal Protection Clause does notrequire that State must choose between attacking every aspect problem notattacking the problem all. enoughthat the States action rationally basedand free from invidious discrimination Conflicting claims morality and intelligence are raised opponents andproponents almost every measure. 
Dandridge Williams, 397 U.S. 471, 486-487 (1970)(internal citation omitted).    
While the detractors Utahs Amendment might argue that the purpose responsibleprocreation might better achieved increasingthe child support obligations parents who conceivewithout marrying, restricting the availability divorce, such arguments are irrelevant theamendments constitutionality.  The people Utahhave the right decide for themselves whether restrict liberalize their marriage laws  not.   

III. DEMOCRATIC DECISION-MAKING MUST PROTECTED FROM JUDICIAL OVERREACH 
Finally, the Court should accept review ensurethat the peoples right make laws and engage direct democracy protected from those who wouldseek reserve lawmaking the judiciary.  The right Utahs citizens make the laws thatgoverning them paramount: the end, what the Court fails grasp accept the basic premise the initiative process. And this. The essence democracy that the right make law restsin the people and flows the government, not the other way around. 
Hollingsworth Perry, 133 Ct. 2652, 2675 (2013)(Kennedy, dissenting).   
Finding new, fundamental right same-sexmarriage conflicts with this longstanding and undeniably important, fundamental right  the peoples right self-governance.  Utahs citizens voted for Amendment nearly two-thirdsmajority. Slip Op. 6-7.  The sponsors the ballot initiative that led Amendment 3s adoption arguedthat the amendment was necessary protect Utahs interests perpetuat[ing] the human race andthe importance raising children .... Id. the same time, Amendment 3s sponsors explicitlydisavowed intolerance, hatred, bigotry advocating for the amendments passage. Id. 
Particularly light the documented absence animus the part Utahs voters, the Tenth Circuits opinion robs these citizens their fundamental right self-governance the issue marriage, issue that being hotly debated across the country. the Tenth Circuits ruling notreversed this Court, the right citizens debateand define their democracy will greatlydiminished. this Court recently observed:   
The respondents this case insist that difficult question public policy must taken from the reach the voters, and thus removed from the realm public discussion, dialogue, and debate election campaign. demeaning the democratic process presume that the voters are not capable deciding issue this sensitivity decent and rational grounds.  The idea democracy that can, and must, mature. Freedom embraces the right, indeed the duty, engage arational, civic discourse order determine how best form consensus shape thedestiny the Nation and its people. 
Schuette Coalition Defend Affirmative Action, 134 Ct. 1623, 1637 (2014).    

CONCLUSION one has constitutional right obtain aUtah marriage license whatever terms they choose. Baker Nelson, 409 U.S. 810 (1972)(dismissing same-sex marriage appeal for want substantial federal question.); Baker Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (The due process clause the Fourteenth Amendment not charter for restructuring [state regulation marriage] judicial legislation.). Utahs voters chose rational model for their states marriage law and the TenthCircuits ruling overturning that choice was unlawful usurpation their legitimate policy choice. This Court should grant the Petition review the Tenth Circuits ruling. 
Respectfully submitted, 
Paul Orfanedes 
Counsel Record 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street S.W., Ste. 800 Washington, D.C. 20024 
(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amicus Curiae 
September 2014