13-4178 Amicus Brief of Duane Morley Cox

Case No.
13-4178,
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
On APPEAL FROM
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UNITED STATES DISTRICT COLTRT FOR THE DISTRICT OF UTAH
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CENTRAL DIVISION
Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood,
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I and Cody Partndge
Plaintiffs and Appellees
v.
$ary R. Herbert, John Swallow, and Sherrie Swensen
Defendants and Appellants
BRIEF OF AMIClTS CURIAE
IN SUPP9RT OF UTAH'S CONSTITUTIONAL AMENDMENT NO.3
Filed By
Duane Morley Cox, Pro Se
4056 West 3830 South
West Valley City, Utah 84120
Ph: 801-755-3578
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Appellate Case: 13-4178 Document: 01019201933 Date Filed: 02/12/2014 Page: 1
Docket Reference Number: [10149171]
Duane Morley Cox, Pro Se
4056 West 3830 South
West Valley City, Utah 84120
Ph: 801-755-3578
TENTH CIRCUIT COURT OF APPEALS
DEREK KITCHEN et. al.
Plaintiffs and Appellee's
V.
GARY R. HERBERT et. al.
Defendants and Appellants
BRIEF OF AMICUS CURIAE
IN SUPPORT OF UTAH'S
CONSTITUTIONAL
AMENDMENT NO. 3
Case: 13-4178 (UTAH)
COMES NOW: Duane Morley Cox, ProSe, pursuant to Fed. R. App. Rule 29, and files
this Brief Of Amicus Curiae in support of Utah's Constitutional Amendment No.3.
DISCLOSURE STATEMENT: Amicus is not a corporation. All research and all
arguments presented herein are exclusively those of Amicus. This Brief \Vas prepared
and typed by Amicus, and has not been reviewed or contributed to by any outside person
or entity. All funds expended to prepare and reproduce this Brief are exclusively funds of
Amicus. Although Amicus is a n1ember of the Church of Jesus Christ of Latter Day
Saints (LDS) which is headquartered in Utah, and holds the Melchizedek Priesthood
therein, Amicus does not speak for or represent the LDS Church. However, Amicus does
believe that the issues he addresses affect the LDS Church and all of the 6+ Million
members of the LDS Church living in every State of the Nation, including Utah, as well
as millions of other religious individuals of other faiths who believe that "Marriage" is
solely between a man and a woman, in the same manner as they affect him. And Amicus
draws from the teachings and scriptures of his LDS Faith as presented in the King James
Version of the Bible and the Book of Doctrine and Covenants published by the LDS
Church, as used by the leadership of the LDS Faith and its members in their study and
worship.
TABLE OF CONTENTS: Page
Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents ........................................................................................................ 11
Table of Authorities .................................................................................................... 11
Identity of Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Amicus Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
11
TABLE OF CONTENTS, CONT'D: Page
Statement of Preparation ............................................................................................... 4
Arguments ..................................................................................................................... 4
I. The Court below was not properly briefed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. Utah's Amendment No.3 Protects 1st Amendment Rights ..................... 6
III. The "Decision" of the Court below usurps Utah's and its
Citizens rights in violation of the 9th and 1Oth Amendments
To the Constitution .................................................................................. 9
IV. The "Decision" causes the Supreme Court to become a
''Superlegislature'' .................................................................................... 10
V. The "Decision" creates a "religious Test" violating Article VI
Of the U.S. Const ....................................................................................... 14
Conclusion ................................................................................................................... 15
TABLE OF AUTHORITIES:
Case Law: Page
Annotation, S. Ct's Construction Of Eleventh Amendment,
106 L.Ed2d. 660 (S. Ct. 1989) ........................................................................... 13
Barnette, 319 U.S. 624 (S.Ct. 1943) .................................................................. 11
111
Case Law Confd: Page
Church of The Lukumi Babalu Aye v. Hialeah, 113 S.Ct. 2217 (1993) .. 4, 5, 6, 7
Kitchen v. Herbert {"Decision"}, 2:13-cv-217 (Ut. Dist. 2103) ..................... 5, 6
Lander v. United States, 358 U.S. 169 (1958) .................................................... 6
Nat. Fed. Oflnd. Businesses v. Sebelius, 567 U.S. (2012)
as given on Pg 11 of Slip Opinion (See Exhibit A) ............................................. 5
McDaniel v. Paty, 435 U.S. 618 ........................................................................ 15
Other Authorities: Page
The Book of Doctrine and Covenants Of The Church Of Jesus Christ of Latter
Day Saints, Containing Revelations Given To Joseph Smith, The Prophet, With
Some Additions By His Successors In The Presidency Of The Church, Published
By the Church of Jesus Christ Of Latter Day Saints, Salt Lake City, Utah, USA
1981
D&C 42:22 ......................................................................................................... 1
D&C 76:81-113 .................................................................................................. 3
D&C 88:20-24 .................................................................................................... 2
D&C 98:18 ......................................................................................................... 2
D&C 131:1-4 ...................................................................................................... 2
lV
Other Authorities: Page
The Holy Bible, containing The Old and New Testaments, Authorized King James
Version, Published By the Church Of Jesus Christ Of Latter Day Saints, Salt Lake City,
Utah, U.S.A. 1979
1st Corinthians 15 :40-41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Genesis 1 :24-28 .................................................................................................. 1
Genesis 2:24 ....................................................................................................... 1
John 14:2 ............................................................................................................ 2
Leviticus 20: 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Leviticus20:15 ................................................................................................... 1
Mark 10:7 ............................................................................................................ 1
Matthew 18:18 ..................................................................................................... 2
Matthew 19:5 ...................................................................................................... 1
U.S. Constitution, Article VI .......................................................................... 4, 5, 14, 15
Exhibits Cited On: Page
Exhibit A, Pg 11, Extracted from Slip Opinion for Nat. Fed.
Of Ind. Businesses v. Sebelius, 567 U.S._, (2012) ....................... 5
v
Exhibit B, Group Loses Tax Break Over Gay Union Issue
By Jill Capuzzo, 18 September 2007 ............................................. 8, 9
Exhibit C, New York Marriage Equality Act ..................................................... 9
Exhibit D, When Conscience and the New Marriage Collide, by
Clyde Haberman, July 2011 ............................................................ 14
Exhibit E, Town Clerk, I do not do 'I do', by Lauren Stanforth,
Staff Writer, 6 December 2011 ........................................................ 14
Exhibit F, Rights Collide as Town Clerk Sidesteps Role in
Gay Marriages, 27 September 2011 ................................................. 14
Exhibit G, History of the Church OF Jesus Christ of Latter Cay Saints,
By: B. H. Roberts, Published by the Church, Second Ed.
Revised, Printed by The Deseret Book Company, Salt
Lake City, Utah 1974 (Extracted Page 394, See Footnote) ............ 15
Exhibit H, Extermination Order, by Dale A. Whitman, BYU Harold B.
Lee Library, Extracted and Printed 11/28/2014 ................................ 15
Exhibit I, The Church: A Brief History, Extracted and Printed 2/4/2014 ......... 15
Exhibit J, Primary Source Reading: Patrick Henry's Speech to the Virginia
Convention ........................................................................................ 15
Exhibit K, Mormon Church Backs Gay Rights Bill, by CBSNews AP, 11
November 2009 ............................................................................... 12
Vl
Exhibit L, Catholic Charities Ceases Adoption, 17 March 2006 Edition of The
Pilot ................................................................................................ 11
Vll
IDENTITY OF AMICUS: Duane Morley Cox, a 54 year resident of Utah, holds BS &
MS Degree in Mechanical Engineering, and is a devout Christian member of the Church
of Jesus Christ of Latter Day Saints (LDS) who holds the Priesthood and can perform
rites that clergy in other Christian Faiths perform. He has twice sought election to the
Utah House, desires to seek election to office in the future, and voted in favor of Utah's
Amendment No.3. His Faith teaches, and he believes, that "Marriage" is between a man
and woman, and that God does not approve of same sex unions.
"And God said, Let the earth bring forth the living creature after his kind, cattle,
and creeping thing, and beast of the earth after his kind: and so it was 00. And god
said, Let me make man in our own image after our likeness: and let them have
dominion 00. So God created man in his own image, in the image of God created he
them; male and female created he them. And god blessed them, and God said unto
them, Be Fruitful, and multiply, and replenish the earth and subdue it, ... "Genesis
1:24-28 Therefore shall a man leave his father and his mother, and shall cleave
unto his wife: and they shall be one flesh." Genesis 2:24 (See also Matt 19:5 and
Mark 10:7 "Thou shalt love thy wife with all thy heart, and shalt cleave unto her
and none else." D&C 42:22, Given 9 Feb 1831
"If a man lieth with mankind, as he lieth with a woman, both of them have
committed an abomination; they shall surely be put to death ... " Leviticus 20:13
"And if a man lieth with a beast he shall surely be put to death ... " Leviticus 20:15
His Faith teaches, and he believes, that God has created many "Mansions"
dispersed across three degrees of Glory known as the celestial, terrestrial, and telestial
kingdoms as revealed in ancient and modem scripture. The celestial being the highest
Pg 1
kingdom, which requires that men and women be married together under a "new and
everlasting covenant of marriage" in order to have an "increase" in the afterlife.
Christ said, "In my Father's house are many mansions: if it were not so, I would
have told you. I go to prepare a place for you." John 14:2 "Let not thy hearts be
troubled; for in my Father's house are many mansions, and I have prepared a place
for you; ... " D&C 98:18 "There are also celestial bodies, and bodies terrestrial:
but the glory of the celestial is one, and the glory of the terrestrial is another.
There is one glory of the sun, and another glory of the moon, and another glory of
the stars: for one star differeth from another star in glory." 1st Corinthians 15:40-
41 "That bodies who are of the celestial kingdom may possess it forever and ever,
for, for this intent was it made and created, and for this intent they are sanctified.
And they who are not sanctified through the law which I have given unto you,
even the law of Christ must inherit another kingdom, even that of a terrestrial
kingdom, or that of a telestial kingdom. For he who is not able to abide the law of
a celestial kingdom cannot abide a celestial glory. And he who cannot abide the
law of the terrestrial kingdom cannot abide a terrestrial glory. And he who cannot
abide the law of a telestial kingdom cannot abide a telestial glory; therefore he is
not meet for a kingdom of glory and must abide a kingdom which is not a kingdom
of glory." D&C 88:20-24 "In the celestial glory, there are three heavens or
degrees; And in order to obtain the highest, a man must enter into this order of the
priesthood [meaning the new and everlasting covenant of marriage]; And if he
does not, he cannot obtain it. He may enter into another, but that is the end of his
kingdom; he cannot have an increase". D&C 131:1-4 [Insert in Original]
This new and everlasting covenant of "Marriage" is based upon ancient scripture.
"Verily I say unto you, Whatsoever ye shall bind on earth shall be bound in
heaven: and whatsoever ye shall loose on earth, shall be loosed in heaven." Matt.
18:18
This makes it clear that in order to qualify for the highest level of the celestial
kingdom a man and a woman must be "'Married" under Priesthood authority for "Time
and Eternity" instead of until "Death Do Y e Part", as is the custom of civil ceremonies
Pg.2
and virtually all other religions. These "Marriages" for "Time and Eternity" are sacred
ceremonies where faithful members ofthe LDS Faith are "Married" in one ofthe 141
operating Temples of the LDS Faith, 79 ofwhich Temples are located in 37 States.
And so, Amicus, on 5 August 1960, was "Married" to his First wife for "Time and
Eternity" in the Logan, Utah, LDS Temple, and as part of this ceremony, he made a
sacred Covenant with his God to support God's Plan, even at the peril of his life. God's
Plan is for man to marry a woman to create offspring (which same sex couples can not
do), and to be "Married" for "Time and Eternity" so that they can inherit a "Mansion" in
the celestial kingdom where they can dwell with God and have eternal "increase".
But God loves all of his children, and has prepared a place, the telestial kingdom,
a place for those who practice sodomy in violation of God's command.
"And again we saw the glory of the telestial, which glory is that of the lesser ...
these are those that are thrust down to hell .... who shall not be redeemed from the
devil until the last resurrection ... these are they ... who receive ... of the Holy spirit
... these are they who are ... whoremongers ... for they shall be judged according to
their works, and every man shall receive according to his own works, his own
dominion, in mansions which are prepares; And they shall be servants of the most
High, but where God and Christ dwell they cannot come ... " D&C 76:81-113,
Amicus's religious beliefs and their free exercise deserves to be protected.
"religious beliefs need not be acceptable, logical, consistent, or comprehensible to
Pg3
others in order to merit first Amendtnent protection [Citations Omitted]" Church
of The Lukumi Babalu Aye v. Hialeah, 113 S.Ct. 2217, Pg. 2225 (1993)
AMICUS INTEREST: His interest is in not having his Faith brought into conflict with
the same sex 14th Amendment rights declared in the "Decision" of the Court below. He
maintains that Utah's Constitutional m e n ~ m e n t No.3, in its "Operation", protects his
1st Amendment rights from discrimination lawsuits by same sex couples, without
establishing a "religious Test" that precludes his ability to seek elected office or
positions of Public Trust. He maintains that the "Decision" defeats and voids all
protections, whether Constitutional or statutory in every state, including Utah, because the
declaration of a 14th Amendment protection for same sex "Marriage" becomes the "Law
of the Land" which State enacted statutes cannot nullify, and further that the "Decision"
establishes a "religious Test" in violation of Article VI @ 3 which precludes him from
seeking office or positions of Public trust.
AUTHORITY TO FILE: Amicus voted for Utah's Amendment No.3 in order to protect
his Religious rights, which Amendment No.3 was passed by the people under procedures
enacted by the Utah Legislature, and it "'Operates" to protect his 1st Amendment rights,
Pg4
which "Operation" demonstrates the object or intent of Utah's Amendment No.3.
"Apart from the text, the effect of a law in its real operation is strong evidence of
its object." Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct.
2217, Pg. 2228 (1993)
The U.S. Constitution reserves to the State of Utah and/or the people the power to
regulate "Marriage" because it is not one of the enumerated powers granted to Congress
or the Courts, and the 14th Amendtnent rnandates that Utah protect 1st Amendment rights.
"The Free Exercise Clause of the First An1endment, which has been applied to the
States through the Fourteenth Amendment, [Citations Omitted] provides that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof ... Church of The Babalu Aye v.
City of Hialeah, 113 S.Ct. 2217, 2225, (1993)
Amicus has authority to file this Brief because the "Decision" violates the gth and
lOth Amendments to the U.S. Constitution and usurps his rights guaranteed thereunder to
help determine how his 1st Amendtnent rights should be protected, which "Decision" also
turns the Courts into a prohibited while also establishing a prohibited
"religious Test" in violation of Article VI of the U.S. Constitution.
STATEMENT OF PREPARATION: Atnicus is ProSe and is unrepresented. All
research, preparation filing efforts and expenses are solely the work of Amicus.
ARGUMENTS:
Pg 5
I. The Court below was not properly briefed: Because the Court below was not
adequately briefed on the issue of religious freedom, the findings of the "Decision" are
not accurate as regards to its impact upon religious institutions or their membership.
"Although the State did not directly present an argument based upon religious
freedom, the court notes that its decision does not mandate any change for
religious institutions, which may continue to express their own moral viewpoints
and define their own traditions about marriage." Decision, Pg 49
The Court below then proceeded to make a sua sponte analysis, but the Supreme
Court has held that a "vigorous prosecution and a vigorous defense" are essential.
"Sound judicial decision making requires 'both a vigorous prosecution and a
vigorous defense' and a constitutional rule announced sua sponte is entitled to less
deference than one addressed on full briefing and argument." Cf. Lander v.
United States, 358 U.S. 169, 173 (1958) (declining to address 'an important and
complex' issue ... and the court thought it 'should have a full argument before it
dealing with the question.')" Church of The Lukumi Babalu Aye v. City of
Hialeah, 113 S.Ct. 2217, Pg. 2247 (1993)
And the Supreme Court has shown how to correct such deficiencies.
"We appoint H. Bartow Farr III to brief and argue in support of the Eleventh
circuit's judgement with respect to severability, and Robert A Long to brief and
argue the proposition that the Anti-Injunction Act bars the current challenges to the
individual mandate." Footnote in Nat. Fed. Of Ind. Businesses v. Sebelius, 567
U.S._, (2012) as given on Pg 11 of Slip Opinion (See Exhibit A)
Without adequate briefing, the 1oth Circuit must reverse the "Decision" below.
II. Utah's Amendment No. 3 Protects 1st Amendment Ri&:hts: The Court below held:
Pg6
"The court agrees with Utah that regulation of marriage has traditionally been the
province of the states, and remains so today. The issue the court must address in
this case is not who should define marriage, but the narrow question of whether
Utah's current definition of marriage is permissible under the Constitution."
Decision, Pg 1
But where the States are mandated through the 14
1
h Amendment to protect 1st
Amendment rights, the question that the Court below should have focused upon was
whether Utah's Amendment No.3 "Operated" to protect the 1st Amendment rights of
Religious entities. clergy. employees. property of religious entities. or even individuals.
The court below further error's when it states:
"Since 2003, every other state has legalized same-sex marriage or, like Utah,
passes a constitutional amendment or other legislation to prohibit same-sex
unions." Decision, Pg. 9
The error being that Utah's Amendment does not even use the words "same-sex"
anywhere therein. Rather, it protects the 1st Amendment rights and the free exercise
thereof by adopting the traditional definition of "Marriage" as being between a man and a
woman that has existed for thousands of years, which precludes any claims or causes of
action because of alleged discrimination. Such stratifications in our society are common,
for instance, we have car drivers licenses, motorcycle licenses, boat licenses, pilots
licenses etc, so what's wrong with "Marriages between a man and a woman" and some
Pg7
other designation for same sex relationships? An1endment No.3 works because there is
no government mandated equivalency between same sex and opposite sex "Marriage".
To see this more clearly, we need only to understand what happened in New Jersey
when that State changed the definition of "Marriage'' to include the non-traditional union
of same sex couples. Two lesbian couples, after being denied the use of the Methodist
owned Ocean Grove Camp Meeting Association property for their civil union
ceremonies, filed complaints with the State Division of Civil Rights, and as a result, the
state commissioner of environmental protection "declined to recertify" the tax exemption
on a part of the Association property under the States Green Acres Program (Exhibit B)
After which, New Jersey adopted statutory protections to protect 1st Amendment rights:
"No member of the clergy of any religion authorized to solemnize marriage and no
religious society, institution or organization in this State shall be required to
solemnize any marriage in violation of the free exercise of religion guaranteed by
the First Amendment to the United States Constitution or by Article 1, paragraph 4
of the New Jersey Constitution. No religious society, institution or organization in
this State serving a particular faith or denomination shall be compelled to provide
space, services, advantages, goods, or privileges related to the solemnization,
celebration or promotion of marriage if such solemnization, celebration or
promotion of marriage is in violation of the beliefs of such religious society,
institution or organization. No civil claim or cause of action against any society,
institution or organization, or any employee thereof, shall arise out of any refusal
to provide space, services, advantages, goods, or privileges pursuant to this
section. No state action to penalize or withhold benefits from any such religious
society, institution or organization, or any employee thereof, shall result from any
refusal to provide space, services, advantages, goods, or privileges pursuant to this
Pg 8
section. Id. Exhibit B, Pg 3
Later, New York enacted their Marriage Equality Act, declaring that "Marriage"
was to be ''valid ... regardless of whether the parties to the marriage are of the same or
different sex" (Exhibit C, Pg 2), and statutory 1st Amendment protections were included:
"Notwithstanding any other provisions of the law ... a corporation ... shall be
deemed to be in its nature distinctly private and therefore, shall not be required to
provide advantages, facilities or privileges related to the
solemnization or celebration of a marriage .... A refusal ... to provide
accommodations, advantages, facilities or privileges in connection with section
ten-a of this article shall not create a civil claim or cause of action .... Pursuant to
subdivision ... nothing in this article shall be deemed or construed to prohibit any
religious or denominational institution or organization, or any organization
operated for charitable or educational purposes, which is operated, supervised or
controlled in connection with a religious organization from limiting employment or
sales or rental of housing accommodations or admission to or giving preference to
persons of the same religion or denomination or from taking action calculated to
promote the religious principles for which it is established or maintained." I d., Pg.
3@ 6 thru Pg. 4@ 2 " ... no clergyman or minister ... shall be required to
solemnize any marriage when acting in his or her capacity under this subdivision ...
A refusal by a clergyman or minister ... to solemnize any marriage under this
subdivision shall not create a civil claim or cause of action." Id., Pg 5@ 10-16
Thus it is obvious that Utah's simple Constitutional definitional approach and New
York and New Jersey's more complex statutory schemes both provide 1st Amendment
protections for religions. But the "Decision" makes no findings of fact that Utah's
Constitutional amendment provides such protections because religious issues were not
properly briefed or analyzed, which creates grounds for reversal by the 1oth Circuit.
Pg9
III. The "Decision" of the Court below usurps Utah's and its citizens ri&hts in
violation of the gth and lOth Amendments to the Constitution.
Now, some may believe and say that all Utah has to now do is pass protective
statutes like in New York and New Jersey to protect 1st Amendment religious freedoms.
But that's utter nonsense because such statutes would be unconstitutional on their face or
as applied because the Court below has declared to exist a 14th Amendment right for same
sex couples to be "Married". Article VI of the Constitution declares the Constitution
is the "Law of the Land", and" ... the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding". I d. Thus
Utah can no longer use any State action to protect 1st Amendment religious rights as
reserved to the States and people by the 9th and lOth Amendments through the 14th Am.
But Utah will be in great company because all other States, including New Jersey
and New York, will have their statutory or Constitutional protections voided because they
cannot nullify the newly created 14th amendment right of same sex couples to "Marry".
Therefore, the "Operation" of the "Decision" makes clear its true intent. It is to
burden only religion, churches, clergy, employees and even God loving members thereof
with discrimination lawsuits which the States and Congress will be powerless to stop
Pg 10
(Exhibit A). Religious entities will be compelled to discontinue services (Exhibit L) and
"Marriages" by their own faithful members on their properties and in their Churches,
Meeting Houses and Temples in order to avoid the burden and cost of litigation and/or to
avoid being required to "Marry" or celebrate same sex "Marriages" against their beliefs.
And all clergy will be subject to lawsuit for refusal to perform same sex "Marriages".
Therefore it must be concluded that the "Decision" holding Utah's Amendment
No.3 is Unconstitutional on grounds that the newly created 14th Amendment right of
same sex couples to "Marriage" actually "Operates" to usurp the powers reserved to the
States and the people in violation of the gth and 1Oth Amendments to the Constitution.
The 1oth Circuit must reverse the "Decision" of the Court below.
IV. The "Decision" the Supreme Court to become a "Superlea:islature"
Mr. Justice Frankfurter has warned of the very narrow role and duty of the Courts
in cases involving the nullification of legislative actions.
"In neither situation is our function comparable to that of a legislature or are we
free to act as though we were a superlegislature. Judicial self-restraint is equally
necessary whenever an exercise of political or legislative power is challenged."
Barnette, 319 U.S. 624, 648 (S. Ct. 1943) Justice Frankfurter dissenting
" ... responsibility for legislation lies with the legislatures, answerable as they are
Pg 11
directly to the people, and this Court's only and very narrow function is to
determine whether within the broad grant of authority vested in legislatures they
have exercised a judgement which for reasonable justification can be offered."
Barnette, 319 U.S. 624, 649 (S. Ct. 1943) Justice Frankfurter dissenting
Amicus argues that although the Court below failed to adequately brief, argue
and analyze religious issues, it is clear that Utah had a reasonable justification for taking a
definitional approach to protecting 1st Amendment religious rights be defining "Marriage"
as being solely between a man and a woman. It was simple, narrow, and did not mention
same sex rights, in fact its narrow tailoring makes it possible for same sex couples to
perfect peripheral rights by other legislative enactments as later happened (Exhibit K).
In contrast, the "Decision" of the Court below voids all existing and future State
Constitutional and statutory protections of 1st Amendment rights associated with the
regulation of "Marriage". Thus the "Decision" is argued to target only religion and the
free exercise thereof, leaving only the Supreme Court as the final arbitrator of when and
if same sex couples can or can't sue to gain access to religious facilities to perform or
celebrate their "Marriages", and can or can't sue clergy, ministers, bishops etc who refuse
on religious grounds to participate or perform such "Marriages". Such a circumstance is
similar to 200 year effort by the U.S. Supreme Court to harmonize the conflicting rights
Pg 12
of the immunity of States from suit under the 11th Amendment and the rights of
individuals to sue under the 14th Amendment (See Annotation- Supreme Court's
Construction Of Eleventh Amendment ... 106 L. Ed2. 660). The framers of the
Constitution knowingly created this controversy while the instant controversy is the result
of over-reach by the Court below. Compelling the question: Which is the most or least
protective of 1st Amendment Rights, Utah's Amendment No.3 or the "Decision"?
"When the State enacts legislation [or a Court makes a decision] or unintentionally
places a burden upon religiously motivated practice, it must justify that burden by
'showing that it is the least restrictive means of achieving some compelling state
interest.' Thomas v. Review Board of Indiana employment Security Div., 450
U.S. 707, 718 (1981). See also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)."
Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct., 2217, Pgs.
2250 - 2251 (1993), Justice Blackmon, with whom Justice O'Connor joins,
concurring in judgment [Insert added to make the question]
Amicus argues that Utah's Amendment No.3 is a very simple. elegant approach to
protecting 1st Amendment rights while the "Decision" below destroys the ability of all of
the 50 States to protect 1st Amendment religious rights. And in the place of this
destruction (which burdens only religions, clergy, employees etc with lawsuits), the
Supreme Court is left to re-construct the same protections as they exist today through new
case precedents which will surely read suspiciously like the existing New York and New
Pg 13
Jersey statutory protections which the "Decision" below now destroys. If that doesn't
constitute an instance where the Court's establish themselves as a "superlegislature",
Amicus is without common sense. The "Decision" below must be reversed on grounds
that the "Decision" exemplifies a violation of the principle of Judicial Self-Restraint.
V. The "Decision" creates a Test", violatin& Article VI of the U.S. Const.
If the Decision of the Court below is upheld, Amicus can never in good conscience
seek or hold public office or a position of Public Trust because he has made sacred
covenants with his God to support only God's Plan, even at the expense of his life.
Under New York's Marriage Equality Act, three elected officials gave up their
positions or refused to give out marriage licenses on religious grounds (Exhibits D-F).
For them, the New York requirement that all "Marriages" were to be treated equally
violated their religious convictions, and Amicus is similarly affected by the "Decision".
Amicus could no longer swear to uphold the Constitution as is required by Article
VI of the Constitution, because to do so he must support and sustain "Marriage" as
including same sex couples which would be contrary to his covenant with God to sustain
God's Plan even at the peril of his own life. To do otherwise he would become an
Pg 14
Anti-Christ at the cost of his oppo11unity to achieve the highest level of the celestial
kingdom where God dwells, and his prornised future "increase". Amicus has no desire
to suffer God's displeasure. Some might question the sincerity of Amicus, but in his
Faith, persecution has been their shadow. In 1832, Issac Morley, an ancestor of Amicus,
offered his life to stop the violence of mobs against the early members of his Faith
(Exhibit G). In 183 8, Governor Boggs of Missouri signed an "Extermination Order''
designed to drive the LDS faithful from the State or "Exterminate" them (Exhibit H). In
1844, mobs killed Joseph Smith, the first Prophet of the LDS Church (Exhibit 1). But
our founding fathers likewise risked their lives for what they believed in including Patrick
Henry, who declared at the Virginia Convention: "I know not what course others may
take, but as for me, give me liberty or give me death" (Exhibit J).
The "Decision" creates a "religious Test" in violation of Amendment VI of the
Constitution, which is grounds for reversal (McDaniel v. Paty, 435 U.S. 618).
Conclusion: The "Decision" of the Court below seeks to fix something that isn't broke
but instead destroys Constitutional prerogatives and 1st Amendment religious protections.
The decision must be reversed without remand on the grounds presented herein.
Pg15 {}

...""
FOR THE TENTH CIRCUIT
Certificate of Service
DEREK KITCHEN, individually
MOUDI SBEITY, individually
KAREN ARCHER, individually
KATE CALL, individually
LAURIE WOOD, individually, and
KODY PARTRIDGE, individually,
Plaintiffs - Appellees
v.
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 SWENSEN, in her official
capacity as Clerk of Salt Lake County,
Defendant.
Case No. 13-4178
Certificate of Service for Brief of Amicus Curiae, Duane Morley Cox.
Pg 1
I ..
I .:..:
/
i
0
I
f',
u
CERTIFICATE OF SERVICE
I hereby certify that on 10 February 2014, that I filed by First Class Mail,
Postage Prepaid, the foregoing to the 1oth Circuit Court, and also by First Class
Mail, Postage Prepaid to the following:
Gene Schaerr, Special Assistant Utah Attorney General
Brian L. Target, Chief Deputy Utah Attorney General,
Stanford E. Purser, Assistant Attorney General
Parker Douglas, Chief Deputy Attorney General
PhillipS. Lott, Assistant Utah Attorney General
P.O. Box 140856
160 East 3 00 South
Salt Lake City, Utah 84114-0856
801-366-0100 spurser@utah.gov
Peggy A. Tomsic
James E. Magleby
Jennifer Fraser Parrish
MAGLEBY & GREENWOOD. P.C.
170 South Main Street, Suite 850
Salt Lake City, Utah 841 0 1
Ralph Chamness
Darcy M Goddard
Salt Lake County District Attorneys
2001 South State, S3 700
Salt Lake City, Utah 84190
Kathryn D. Kendell
Shannon P. Minter
David C. Cadell
National Center for Lesbian Rights
870 Market St., Ste. 370
San Francisco, CA 94102
Pg2
tomsic@rngplaw .corn
magleby@rnpglaw.corn
parrish@rngplaw. corn
rcharnness@slco.org
dgoddard@slco.org
kkendall@nclrights.org
srninter@nclrights.org
dcodell@nclrights.org
Jennifer L. Bursch, Amici Curiae
Institute for Marriage and Public Policy
Suite 100
2491 0 Las Brisas Road
Murrieta, Calif. 92562
John J. Bursch
Warner Norcross & Judd LLP
Ste. 900
111 Lyon Street, NW.
Grand Rapids, MI. 49503
Monte N. Stewart
Ste. 100
12550 W. Explorer Dr.
Boise, I d. 83 713
Date: 10 February 2014
Pg3
j bursch@faith-freedom.com
jbursch@wnj .com
Stewart@stm-law .com
FOR THE TENTH CIRCUIT
Certificate of Service
DEREK KITCHEN, individually
MOUDI SBEITY, individually
KAREN ARCHER, individually
KATE CALL, individually
LAURIE WOOD, individually, and
KODY PARTRIDGE, individually,
Plaintiffs - Appellees
v.
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 SWENSEN, in her official
capacity as Clerk of Salt Lake County,
Defendant.
Case No. 13-4178
Certificate of Service for Appendix for Brief of Amicus Curiae,
Duane Morley Cox.
Pg 1
.
; ;;:,: . '1 ("'
i j :: ll
""
CERTIFICATE OF SERVICE
I hereby certify that on 10 February 2014, that I filed by First Class Mail,
Postage Prepaid, the foregoing to the 1oth Circuit Court, and also by First Class
Mail, Postage Prepaid to the following:
Gene Schaerr, Special Assistant Utah Attorney General
Brian L. Target, Chief Deputy Utah Attorney General,
Stanford E. Purser, Assistant Attorney General
Parker Douglas, Chief Deputy Attorney General
Phillip S. Lott, Assistant Utah Attorney General
P.O. Box 140856
160 East 3 00 South
Salt Lake City, Utah 84114-0856
80 1-3 66-0 1 00 spurser@utah. gov
Peggy A. Tomsic
James E. Magleby
Jennifer Fraser Parrish
MAGLEBY & GREENWOOD. P.C.
170 South Main Street, Suite 850
Ralph Chamness
Darcy M Goddard
Salt Lake County District Attorneys
2001 South State, S3 700
Kathryn D. Kendell
Shannon P. Minter
David C. Codell
National Center for Lesbian Rights
870 Market St., Ste. 370
San Francisco, CA 94102
Pg2
tomsic@mgplaw .com
magleby@tnpglaw .com
parrish@mgplaw.com
rchamness@sl co.org
dgoddard@slco.org
kkendall@nclrights.org
sminter@nclrights.org
dcodell@nclrights.org
Jennifer L. Bursch, Amici Curiae
Institute for Marriage and Public Policy
Suite 100
24910 Las Brisas Road
Murrieta, Calif. 92562
John J. Bursch
Warner Norcross & Judd LLP
Ste. 900
111 Lyon Street, NW.
Grand Rapids, MI. 49503
Monte N. Stewart
Ste. 100
12550 W. Explorer Dr.
Boise, I d. 83 713
Date: 10 February 2014
Pg 3
jbursch@faith-freedom.com
jbursch@wnj.com
Stewart@stm-law.com
ici Curiae

13-4178 Amicus Brief of Duane Morley Cox

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