Appellate Case: 13-4178

Document: Date S T A01019239973 TE OF UTA H Filed: 04/25/2014

OFFICE OF THE ATTORNEY GENERAL

Page: 1

SEAN D. REYES
ATTORNEY GENERAL

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SPENCER E. AUSTIN
Chief Criminal Deputy

PARKER DOUGLAS
General Counsel & Chief of Staff

BRIDGET K. ROMANO
Solicitor General

BRIAN L. TARBET
Chief Civil Deputy

April 25, 2014 Via electronic filing Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, Colorado 80257 Re: Kitchen v. Herbert, No. 13-4178 Response to Plaintiffs Rule 28(j) letter re: Baskin v. Bogan, No. 1:14-cv-00355 (S.D. Ind. April 18, 2014)

Dear Ms. Shumaker, Although each of the statements Plaintiffs recite from Baskin is incorrect,1 we respond here to that courts core holding (at 7-8) that the State there (Indiana) will likely be unable to prove a legitimate state interest underlying its man-woman definition of marriage, including the States desire to maintain social norms that promote the well-being of children. Like the analysis of the district court in this case, the Baskin courts rejection of the States concern about the dilution of child-friendly social norms ignores the laws important and well-recognized role as a teacher of the public. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring). For example, a law protecting citizens with physical disabilities from discrimination helps create or reinforce a social norm that people should generally accept[] persons with impairments or disabilities into the larger society. Id. Conversely, repealing or substantially weakening such a law would weaken the norm of accepting
Baskin is also distinguishable because it was decided on a standard of review for preliminary relief which, unlike this circuits standard, requires simply that success on the merits be more than negligible.
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Docket Reference Number: [10170311]

Appellate Case: 13-4178 Elisabeth A. Shumaker April 24, 2014 Page 2

Document: 01019239973

Date Filed: 04/25/2014

Page: 2

the physically disabled, with the result that many (though not all) citizens would likely act differently toward those persons. So too here: The man-woman definition of marriage teaches social norms speaking primarily to heterosexual parents and potential parentsfor example, that gender diversity and biological connectedness matter, and that procreation should ideally be reserved for marriage. As analysts on all sides acknowledge, over time removing the man-woman requirement will weaken these and other norms currently associated with marriage, with the result that some (though not all) heterosexual parents and potential parents ultimately will cease to act in accordance with them. Over time, that in turn will likely increase the number of children of heterosexual parents who grow up without their fathers, and who (according to unrefuted social science) will thereby face greater risks of abuse, crime, teen pregnancy, poverty, school failure, psychological problems, poor health and substance abuse. See OB7280; RB12-27. These are matters of substantial State concern. Respectfully submitted, /s/ Gene Schaerr ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing letter required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the letter filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses.

/s/ Gene Schaerr

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