West Valley City, Utah 84120 Ph: 801-755-3578 UNITED STATES COURT OF APPEALS, TENTH CIRCUIT DEREK KITCHEN et. al. Plaintiffs and Appellee's v. GARY R. HERBERT et. al. Defendants and Appellants MOTION FOR LEAVE TO I PARTICIPATE IN ORAL ARGUMENTS I IN SUPPORT OF UTAH'S CONSTITUTIONAL AMENDMENT NO. 3 Case: 13-4178 (UTAH) NOW COMES: Duane Morley Cox, as Amicus Curiae, pursuant to Fed. R. App. P. Rule 29(g), asking permission of the Court to participate in Oral Arguments. PARTICIPATION OF AMICUS CURIAE IS DESIRABLE: The State of Utah is disadvantaged with respect to arguments pertaining to the religious impacts of the decision of the Court below on the Constitutionally Protected rights of religions and their membership. On the one hand, the States are mandated to protect 1st Amendment rights pursuant to the 14th Amendment whenever they pass Pg 1 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 1 Docket Reference Number: [10159478] legislation. "The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), provides that Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof ... " Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217, 2225 (1993) [internal quotations omitted] But cannot regulate conduct for religious reasons. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue ... regulates or prohibits conduct because it is undertaken for religious reasons. See. E.g. Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953)'' Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217,2226 (1993) This creates a "catch 22" for all legislative bodies when crafting legislation as well as when defending that which has been enacted. Which "Catch-22" operates to preclude any discussion of "Religious" burdens that same-sex marriages will place on religious institutions, a task made even more difficult because the State recognizes that there are over 25 different faith communities in Utah. Utah Reply Brief, Pg 10, Footnote 2 But same-sex Plaintiffs argue their quest has no impact on others: "Plaintiffs claim (at 69) that the state has offered no legal factual, or logical reason to believe that permitting same-sex couples to marry will affect attitudes, beliefs, or conduct of other couples, or of society at large toward marriage and parenting" Utah Reply Brief, Pg 14 Which the Court below echoed their sentiment in its sua sponte discussion of Pg2 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 2 religious impacts: "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 But these contentions are absolutely false to the point of being absurd, prompting Amicus to rebut on five grounds in his Amicus Brief in hopes of elevating the religious impacts upon himself and others of similar religious belief to the point that they were vigorously debated by Plaintiffs and the State of Utah. "Sound judicial decision making requires 'both a vigorous prosecution and a vigorous defense' ... (citations omitted), and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument (citations omitted)." Church of The Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217, 2247 (1993) Unfortunately, in the opinion of Amicus, that elevation did not occur although the State of Utah did recognize in their Reply Brief (RB) the decision of the Catholic Charities of Boston to terminate adoptions (RB, pgs 41 & 43) and the lawsuit against a wedding photographer by a same-sex couple for refusal to photograph their same sex ceremony (RB, Pg 42) which were also cited by Petitioner. And the State of Utah did touch on the 1 0 1 h Amendment issue raised by Amicus (RB, pg 99), but on other grounds. Pg 3 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 3 But no argument has been made regarding the undisputable fact that the Decision by the Court below will have the effect of creating a "Religious Test" in violation of Article VI of the Constitution which precludes Amicus (and perhaps millions of other citizens) from seeking or holding office. Cox Brief, Pgs 14-15 [with citation to three Clerks of deep religious conviction who resigned from elected/appointed positions or who were sued because they had religious objection to issuing marriage licenses or performing ceremonies for same-sex couples.] And no vigorous argument has been given to the consequence of the decision of the Court below to void all statutory protections which have been put in place by New York, New Jersey, Utah and other states to avoid the type of lawsuit filed by two lesbian couples in New Jersey to compel the Methodist based Ocean Grove Camp Meeting Association to allow them to have their same-sex services held Ocean Grove property against the religious beliefs of the Methodist Faith Cox Amicus Brief, Pg 8-9. Where the decision ofthe Court below will invalidate all of these protective statutes at the city, county and State level because a Constitutional privilege cannot be negated by any State legislative or constitutional action as clearly delineated by Article VI of the U.S. Pg4 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 4 Constitution. GROUNDS FOR HEARING ORAL ARGUMENTS ON RELIGIOUS ISSUES: Justice Sotomayor has issued her stay and forced this Court to hear arguments so that if and when this issue reaches the Supreme Court it will have been fully briefed and argued. Amicus Cox argues that the issue of Religious impacts has not yet been fully briefed and argued. While the lOth Cir. R. 34.l(F) declares "Oral argument on petitions or motions is not ordinarily permitted", an exception exists: "An amicus curiae may participate in oral argument only with the court's permission." Fed. R. App. Rule 29(g). "Moreover, appellate courts may address a waived issue when it promotes the public interest or is necessary to avoid manifest injustice. Bylin v. Billings, 568 F.3d 1224, 1231 (lOth Cir. 2009; Sussman v. Patterson, 108 F.3d 1206, 1210 (lOth Cir. 1997)" Utah Reply Brief, Pg 41, Footnote 19 Amicus argues that the issues in his Brief are properly before this Court but have not been "vigorously argued". They are clearly important to the public interest and the failure to have them adequately heard and "vigorously argued" by this Court would be a manifest injustice to millions of religious individuals in Utah and across America who will by the decision of the Court below.
Pg 5 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 5 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Certificate of Service DEREK KITCHEN, et. al. Plaintiffs - Appellees v. GARY R. HERBERT, et. al. Defendants - Appellants SHERRIE SWENSON, as Salt Lake Clerk Defendant Case No. 13-4178 Certificate of Service for Motion for Leave of Court To Participate in Oral Arguments By Duane Morley Cox, Pro Se, Amicus Curiae I hereby certify that on 17 March 2014, that I filed by First class Mail, Postage Prepaid, the foregoing Motion to the 1Oth Circuit Court, and also by First Class Mail, Postage Prepaid to the following: Pg 1 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 6 Gene C. Schaerr, Special Assistant Utah Attorney General Brian L. Tarbet, Chief Deputy Utah Attorney General Stanford E. Purser, Assistant Utah Attorney General Parker Douglas, Chief of Staff & General Counsel PhillipS. Lott, Assistant Utah Attorney General PO Bos 140856 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD., P.C. 170 south Main street, Suite 850 Salt Lake City, Utah 84101 Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, Suite 3700 Salt Lake City, Utah 84190 Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste 370 San Francisco, Ca 94102 Pg2 gschaerr@.utah. gov = tomsic@mgplaw .com magleby@mpglaw .com parrish@mglpaw .com rchamness@slco.org dgoddard(a>sl co. org kkendall@nclrights.org sminter@nclrights.org dcodell({:Vnclrights.org Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 7 .. Jennifer L. Bursch, Amici Curiae Institute for Marriage and Public Policy 24910 Las Brisas Road, Suite 100 Murrieta, California 92562 John Bursch Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste 900 Grand Rapids, MI 49503 616-752-2474 Monte N. Stewart 12550 W. Explorer Dr., Ste 100 Boise, Id 83 713 208-345-3333 Date: 17 March 2014 jbursch@faith-freedom.com .com stewart@stm-law .com Duane Morley Cox, Pro Se, A Pg 3 Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 8