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Response filed by Mr. Gary R. Herbert and Sean Reyes to Plaintiffs' Rule 28(j) letter re Henry v. Himes.

Response filed by Mr. Gary R. Herbert and Sean Reyes to Plaintiffs' Rule 28(j) letter re Henry v. Himes.

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Published by Ben Winslow
Response filed by Mr. Gary R. Herbert and Sean Reyes to Plaintiffs' Rule 28(j) letter re Henry v. Himes. Filed with the 10th U.S. Circuit Court of Appeals as part of the Amendment 3 appeal of same-sex marriage ruling in Utah.
Response filed by Mr. Gary R. Herbert and Sean Reyes to Plaintiffs' Rule 28(j) letter re Henry v. Himes. Filed with the 10th U.S. Circuit Court of Appeals as part of the Amendment 3 appeal of same-sex marriage ruling in Utah.

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Published by: Ben Winslow on Apr 28, 2014
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08/09/2014

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 S
TATE
 
OF
 U
TAH
 
OFFICE OF THE ATTORNEY GENERAL
 
SEAN D. REYES
 
ATTORNEY GENERAL
 
 ________________________________________________________________________________________________________
S
PENCER
E.
 
 A
USTIN
 P
 ARKER
D
OUGLAS
 B
RIDGET
K.
 
R
OMANO
 B
RIAN
L.
 
T
 ARBET
 
Chief Criminal Deputy General Counsel & Chief of Staff Solicitor General Chief Civil Deputy
 __________________________________________________________________________________________
160 East 300 South • P.O. Box 140856 • Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101
 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:
Henry v. Himes,
No. 1:14-cv-129 (S.D. Ohio April 14, 2014)
 
Dear Ms. Shumaker, While each statement Plaintiffs glean from
Henry
is incorrect, Utah responds to
Henry’s
incorrect use of
Loving
to find sex discrimination, in a manner implied in questioning from this Court. First, as
Henry
 correctly recognizes in the race context, “the freedom to marry . . . resides with the individual” rather than the couple. A couple has no gender, which is by definition a characteristic of an individual. Here, there is no dispute that Utah’s marriage definition treats individuals the same with respect to sex: to marry, each must choose someone of the opposite sex, and consequently Utah’s law is neutral with respect to sex. Second, although
Loving
found a similar “equal application” argument insufficient to sustain an anti-miscegenation law, that was because the law had a clear racially discriminatory purpose and disparate impact: the Court found the law was designed to “maintain White supremacy.” Here, none could contend that Utah’s marriage definition is designed to have or actually has a disparate impact on men or women as a class.
Appellate Case: 13-4178 Document: 01019239979 Date Filed: 04/25/2014 Page: 1

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