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13-4178 - State's Notice Supplemental Authority

13-4178 - State's Notice Supplemental Authority

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Published by Equality Case Files
[10171036] State's Notice of supplemental authority: Schuette v.
Coalition to Defend Affirmative Action
[10171036] State's Notice of supplemental authority: Schuette v.
Coalition to Defend Affirmative Action

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Published by: Equality Case Files on Apr 29, 2014
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04/29/2014

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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
 April 29, 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 Rule 28(j) citation of supplemental authority,
Schuette v. Coalition to Defend Affirmative Action,
No. 12-682 (U.S.  April 22, 2014), slip opinion attached hereto. Dear Ms. Shumaker, In
Grutter v. Bollinger
, 539 U.S. 306 (2003), the Supreme Court upheld the limited use of racial preferences in university admissions while making clear that its holding did
not
 apply to states that banned preferences: “[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.”
Id.
 at 342 (quoting
United States v. Lopez
, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)). The Court elaborated on that principle in
Schuette
, which squarely held that a state’s voters
can
ban preferences, and in so doing reinforced Utah’s points about the importance of letting the people make difficult policy choices through democratic means. OB35-36,98-101; RB1-7,98-103. Specifically, while acknowledging an individual’s right “not to be injured by the unlawful exercise of governmental power,” Justice Kennedy’s plurality opinion emphasized that “[o]ur constitutional system embraces ... the right of citizens to debate so they can learn and
Appellate Case: 13-4178 Document: 01019241470 Date Filed: 04/29/2014 Page: 1
1 of 111
Docket Reference Number: [10171036]
 
 Elisabeth A. Shumaker April 29, 2014
 __________________________________________________________________________________________
160 East 300 South • P.O. Box 140856 • Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101
decide and then, through the political process, act in concert to try to shape the course of their own times....”
Schuette,
slip op. at 15-16. “Were the Court to rule that the question addressed by Michigan voters is … too delicate to be resolved [by the people] … , that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then … to act through a lawful electoral process.”
Id.
at 16;
accord
concurrence of Breyer, J.,
 
at 6. So too here. In
Windsor
, the Court held that the federal govern-ment lacked authority to override state laws redefining marriage in genderless terms. But the last sentence of Justice Kennedy’s majority opinion clarified that it did
not
 apply to states retaining the one-man, one-woman marriage definition: “This opinion and its holding are confined to . . . lawful [same-sex] marriages.” Like
Schuette
 (and consistent with
 Baker
), this Court should hold that Utah’s voters appropriately exercised their “fundamental right” to collective democratic action when they decided to preserve the man-woman definition that pre-dates government itself. Respectfully submitted, /s/ Gene Schaerr
Appellate Case: 13-4178 Document: 01019241470 Date Filed: 04/29/2014 Page: 2
2 of 111
 
 Elisabeth A. Shumaker April 29, 2014
 __________________________________________________________________________________________
160 East 300 South • P.O. Box 140856 • Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101
ECF CERTIFICATIONS
Pursuant to Section II(I) of the Court’s CM/ECF User’s 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 clerk’s 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
Appellate Case: 13-4178 Document: 01019241470 Date Filed: 04/29/2014 Page: 3
3 of 111

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