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Supreme Court of the United States ———— GARY R No. 14-124 IN THE Supreme Court of the United States ———— GARY R. HERBERT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF UTAH, AND SEAN D. REYES, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF UTAH Petitioners, v. DEREK KITCHEN, MOUDI SBEITY, KAREN ARCHER, KATE CALL, LAURIE WOOD, AND KODY PARTRIDGE, INDIVIDUALLY, Respondents. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit ———— BRIEF OF AMICI CURIAE EIGHTY UTAH STATE LEGISLATORS IN SUPPORT OF PETITIONER ———— ROBERT T. SMITH* 1977 Regal Stream Cove Salt Lake City, UT 84121 801-949-5381 [email protected] *Counsel of Record Counsel for Amici Curiae WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 i! ! TABLE OF CONTENTS Page TABLE OF CONTENTS.......................................... i TABLE OF AUTHORITIES...................................... iii INTEREST OF AMICI CURIAE............................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT... 3 ARGUMENT......................................................... 5 I. AMICI AND THE PEOPLE OF UTAH HAVE PROPERLY FULFILLED THEIR RESPONSIBILITY IN OUR FEDERAL SYSTEM TO ADOPT DOMESTIC RELATIONS LAWS THAT WILL BENEFIT THE STATE’S CITIZENS, ESPECIALLY IT’S CHILDREN ……........................................................... 5 A. The State of Utah Has Plenary Responsibility for Its Domestic Relations Laws ...................................................... 6 B. Amici and the People of Utah have Spoken with Considered Judgment in Establishing its Sovereign State Definition of Marriage... 7 II. REDEFINING MARRIAGE WOULD UPEND UTAH’S DOMESTIC RELATIONS LAWS PRIORITIZING CHILDREN’S OPPORTUNITY TO BE RAISED BY A MOTHER AND FATHER................................ 9 A. Birth and Adoption. ........................... 10 B. Legal Parenthood................................ 12 C. Education. ........................................... 13 D. Premarital Counseling. ....................... 14 E. Utah Marriage Commission. ………… 14 ! ii! ! F. Utah Division of Child and Family Services………………………………….. 15 G. Utah Juvenile Court System………… 16 H. Divorce. ............................................... 17 I. Responses to the Tenth Circuit’s Asserted Inconsistencies in State Laws on Family Relations……………………………….. 18 III.THE TENTH CIRCUIT’S FUNDAMENTAL RIGHTS ANALYSIS WOULD IMPROPERLY LEAD TO POLYGAMOUS AND INCESTUOUS MARRIAGE…………………………………… 22 CONCLUSION......................................................... 27 APPENDIX.............................................................. 1 INDEX OF APPENDIX List of Amici Utah State Legislators………….... 1 ! iii! ! TABLE OF AUTHORITIES Cases Brown v. Herbert, 2014 WL 4249865 (D.Utah Aug. 27, 2014) ………………….….………………………5, 25 Cleveland v. U.S., 329 U.S. 14 (1946)…...…….........23 Ghassemi v. Ghassemi, 998 S.2d 731 (2008)….……24 Hernandez v. Robles, 7 N.Y.3d 338 (2006).................9 Jones v. Barlow, 154 P.3d 808 (Utah 2007)………..16 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)………………………………………..………….…26 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)..…………………….………3, 5, 18, 20, 22, 25, 26 Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004)…………………9 Loving v. Virginia, 388 U.S. 1 (1967)…………………6 Maynard v. Hill, 125 U.S. 190 (1888)..………4, 26, 27 Pearson v. Pearson, 2008 UT 24, ¶11, (2008)….12, 13 Reynolds v. U.S., 98 U.S. 145 (1878)……………………………….…….….................23 Schuette v. BAMN, 134 S. Ct. 1623 (2014)…………..3 ! iv! ! Turner v. Safley, 482 U.S. 78 (1987)………………….6 Washington v. Glucksberg, 521 U.S. 702, 720 (1997)………………………………………………………8 Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001)…..4 Windsor v. United States, 133 S.Ct. 2675 (2013)………………………………………………...4, 6, 8 Zablocki v. Redhail, 434 U.S. 374 (1978)………...6, 26 Constitution Utah Const. art. I, §29…………………………………..4 Statutes Act of July 16, 1894, ch. 138 §3, 28 Stat. 107, 108 (Utah Enabling Act)………………………………...….24 Utah Code §26-2-10……………...…………………….10 Utah Code §26-6-3……………………………………...13 Utah Code §30-1-1(2)……………………….………….19 Utah Code §30-1-2(1)………………………...……..…23 Utah Code §30-1-4(2) .…………….…………………..23 Utah Code §30-1-30…………………………………….14 Utah Code §30-1-4.1…………………………..……...4, 7 ! v! ! Utah Code §30-3-1-3(h)………………………………..20 Utah Code §30-3-10……….……………………………18 Utah Code §30-3-10.2………………………………….18 Utah Code §30-3-11.2……………………………….…17 Utah Code §30-3-18…….………………………….17, 20 Utah Code §30-3-32……………………………….……17 Utah Code §30-8-4………………………………….…..10 Utah Code §53A-13-101…..…………………………...13 Utah Code §62A-1-120…….………………………14, 15 Utah Code §62A-4a-103……………………………….15 Utah Code §62A-4a-107……………………………….15 Utah Code §62A-4a-201……………………………….16 Utah Code §62A-4a-203……………………………….16 Utah Code §62A-4a-607……………………………….11 Utah Code §76-7-101.…….…………………………...23 Utah Code §76-7-102………….………....…………....23 Utah Code §78A-6-102…………………………………16 Utah Code §78A-6-503…………………………………16 ! vi! ! Utah Code §78B-15-204……………………………….12 Utah Code §78B-15-703……………………………….13 Utah Code §78B-15-705……………………………….13 Utah Code §78B-15-801……………………………….13 Utah Code §78B-16-607……………………………….12 Utah Code §78B-6-117(2)………..……………………10 Utah Code §78B-6-132……………………………...…11 Utah Code §78B-6-102…….…………………..……....10 Miscellaneous Governor’s Commission on Marriage, Marriage in Utah: 2003 Baseline Statewide Survey on Marriage and Divorce (2003), available at http://strongermarriage.org/files/uploads/Divorce/Uta hMarriage2.pdf……………………………………........21 Jo Adetunji, First Cousin Marriage Doubles Risk of Birth Defects in Children, The Conversation, July 4, 2013, available at http://theconversation.com/first- cousin-marriage-doubles-risk-of-birth-defects-in- children- 15779……………………………………………………..19 Nicholas Confessore and Michael Barbaro, New York Allows Same-Sex Marriage, Becoming Largest State ! vii! ! to Pass Law, NYTimes (June 24, 2011), available at http://www.nytimes.com/2011/06/25/nyregion/gay- marriage-approved-by-new-york- senate.html?pagewanted=all&_r=0..……….………...8 Pew Research Foundation, Marriage and Divorce: A 50-State Tour, (Oct. 15, 2009), available at http://www.pewsocialtrends.org/2009/10/15/marriage s-and-divorce-a-50-state-tour/………………………..21 Tamara A. Fackrell, et al., How Effective are Court Affiliated Divorcing Parents Education Programs? A Meta-Analytic Study, 49 Family Court Review 107, 116 (2011)……………………………………………….17 Utah’s Division of Child and Family Services, Annual Report 2013, available at http://dcfs.utah.gov/pdf/reports/annual%20report%20 2013.pdf………………………………………………….11 ! 1! ! INTEREST OF AMICI CURIAE This Brief of Amici Curiae in support of the petitioners is respectfully submitted pursuant to Supreme Court Rule 37.1 Amici are eighty members of the Utah Legislature, constituting nearly 80% of that body.2 In 2004, the constitutionally required two-thirds majority of this body adopted the state constitutional marriage amendment ratified by approximately 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 that 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 child’s bond with his or her biological parents bound together as a married mother and father. When this is not possible, the State definition of marriage maximizes the likelihood that a child will be raised by a married mother and father. The laws of the State of Utah are consistently designed to further this compelling interest. That these laws benefit Utah’s children is no mere conjecture. Utah has the “lowest percentage of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Pursuant to Supreme Court Rule 37(3)(a), all parties have consented to the filing of this brief. Pursuant to Rule 37(6), Amici affirm that no counsel for a party authored the brief in whole or in part and no person other than the Amici or its counsel made a monetary contribution to this brief. 2 Amici Utah Legislators are listed in the Appendix. ! 2! ! 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 70-71, Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) No. 13-4178. Because the Tenth Circuit’s decision would seriously jeopardize the positive outcomes flowing from the State’s endorsement of the male-female definition of marriage Amici respectfully request that the Court grant Utah’s petition for certiorari and reverse the decision of the Circuit Court of Appeals for the Tenth Circuit. ! 3! ! INTRODUCTION AND SUMMARY OF ARGUMENT The question presented in this case, while deeply personal and at the heart of public debate, is at its most basic level a question about who decides what marriage is and what marriage policy will be. Since our Nation’s founding the States have retained plenary authority over marriage policy. The Tenth Circuit rules otherwise. In its decision below, the Tenth Circuit held that the Federal Constitution now requires States to recognize a new concept of same-sex marriage as a fundamental right. Kitchen v. Herbert, 755 F.3d 1193, 1208-1218 (10th Cir. 2014). Accordingly, the court struck down Utah’s constitutional and statutory definitions of marriage as the union
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