Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 1

No. 13-4178 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DEREK KITCHEN, individually, et al., Plaintiffs-Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et al., Defendants-Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant. __________________________________________ BRIEF OF AMICI CURIAE DOUG MAINWARING, ALANA NEWMAN, AND PROFESSOR ROBERT OSCAR LOPEZ IN SUPPORT OF DEFENDANTS-APPELLANTS __________________________________________ Dani Hartvigsen 1163 East 1220 North Orem, UT 84097 801-691-3466 danihartivgsen@hotmail.com Attorney for Amici Curiae (Appeal from the United States District Court for the District of Utah, Civil Case No. 2:13-CV-00217-RJS)

Docket Reference Number: [10148434]

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 2

CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, the undersigned states that the amici are not a corporation that issues stock or has a parent corporation that issues stock.

i

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 3

CONTENTS Corporate Disclosure Statement ................................................................................ i TABLE OF AUTHORITIES ................................................................................... iii Interest of Amici Curiae.............................................................................................1 Argument....................................................................................................................1 I. Children Need a Mom and a Dad--Individuals with Same-Gender Preference Can Forego a “Gay Lifestyle”, Choose to Participate in Traditional Marriage, and Thereby Provide Children With a Mother and a Father (Doug Mainwaring’s Story) ..............................................................2 Allowing Same-Sex Marriage Would Increase the Number of Children Deprived of Either a Mother or a Father .......................................................10 A. Children are Harmed through the Loss of a Mother or Father: A Plea From a Donor-Conceived Woman (Alana Newman’s Story) .............................................................................................................10 If Utah’s Marriage Amendment is Overturned to Allow SameGender Couples to “Marry,” Children’s Best Interests Will Be Lost: The Perspective of Professor Robert Oscar Lopez ....................13

II.

B.

Conclusion ...............................................................................................................18 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................20 CERTIFICATE OF SERVICE ................................................................................21 CERTIFICATE OF DIGITAL SUBMISSION .......................................................23

ii

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 4

TABLE OF AUTHORITIES
Statutes

Utah Code § 62A-4a-201 .........................................................................................18 Utah Code 62A-4a-201(c)..........................................................................................1
Other Authorities

Club Unicorn: In Which I Come Out of the Closet on Our Ten Year Anniversary THE WEED (June 7, 2012) at http://www.joshweed.com/2012/06/club-unicorn-inwhich-i-come-out-of.html?m=1 .............................................................................4 ELIZABETH MARQUARDT, ET AL., MY DADDY’S NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION (Institute for American Values 2010) ........................................................................................................12 Frank Ligtvoet, The Misnomer of ‘Motherless’ Parenting N.Y. TIMES (June 22, 2013) at http://www.nytimes.com/2013/06/23/opinion/sunday/the-misnomer-ofmotherless-parenting.html?_r=1& .........................................................................8 Mark Regnerus, A Married Mom and Dad Really Do Matter PUBLIC DISCOURSE (October 8, 2013) at http://www.thepublicdiscourse.com/2013/10/10996/ ........12 Statistics THE FATHERLESS GENERATION (no date) at

http://thefatherlessgeneration.wordpress.com/statistics/ .....................................12 Ty Mansfield, Voice(s) of Hope Project FACEBOOK (October 11, 2013) at https://www.facebook.com/pages/Ty-Mansfield/262688917181999 ...................7

iii

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 5

iv

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 6

INTEREST OF AMICI CURIAE 1 Amici are three persons who have become advocates of marriage as being between one man and one woman, as a result of their own life experience and study. Mr. Doug Mainwaring, who self-identifies as gay, was married, adopted children with his wife, divorced, and then remarried the mother of his children. Ms. Alana Newman was conceived by a sperm-donor-father. Mr. Robert Oscar Lopez who self-identifies as bisexual was raised by a same-gendered couple. Each of the amici desires to protect children from the pain and suffering which would be promoted by upholding the ruling of the district court. ARGUMENT The phrase, “in the best interests of the child,” (or similar phrases), appears numerous times throughout Utah Code sections dealing with children. Indeed, seeking the “best interests” of children is at the heart of Utah family law. One example: “It is in the best interest and welfare of a child to be raised under the care and supervision of the child's natural parents. A child's need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child's natural parents.” (Utah Code 62A-4a-201(c))

No party’s counsel authored the brief in whole or in part, and no one other than the amici curiae, its members, or its counsel contributed money that was intended to fund preparing or submitting the brief. This brief is filed with consent of all parties; thus no motion for leave to file is required. See Fed. R. App. P. 29(a). 1

1

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 7

Legalizing same-gender marriage would undermine the foundation of Utah family law intended to protect the best interests of a child. Utah’s laws regarding family and children are based upon the foundation of marriage being between a man and a woman. This brief proffers the experiences of three amici who have had real life experiences with the kinds of parental arrangements that would be promoted by the redefinition of marriage ordered by the district court. Their perspectives and experiences illustrate how that redefinition would contravene Utah’s “best interests of the child” policies, to the detriment of Utah children.

I.

Children Need a Mom and a Dad--Individuals with Same-Gender Preference Can Forego a “Gay Lifestyle”, Choose to Participate in Traditional Marriage, and Thereby Provide Children With a Mother and a Father (Doug Mainwaring’s Story) Doug Mainwaring, a father who self-identifies as “gay,” who married a

woman, bore children, divorced, then lived a gay lifestyle, and then remarried his former wife and is helping raise their children, tells his story in his own words:

As a young man, I wasn’t strongly inclined toward marriage or fatherhood, because I knew only homosexual desire. I first recognized my strong yearning for men at age eight. …That proclivity [same-gender attraction], once awakened, never faded. During college and throughout my twenties, I had many close friends [with whom] I longed to have an intimate relationship. However, I enjoyed something far greater, something which surpassed carnality in every way: philia (the love between true friends)—a love
2

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 8

unappreciated by so many because eros [erotic love or desire] is promoted in its stead. I wouldn’t have traded the quality of my relationships with any of these guys for an opportunity to engage in sex. No regrets. In fact, I always felt like the luckiest man on the planet. Denial didn’t diminish or impoverish my life. It made my life experience richer. When all my friends began to marry, I began to seriously consider marriage for the first time. The motive of avoiding social isolation may not have been the best, but it was the catalyst that changed the trajectory of my life. Even though I had to repress certain sexual desires, I found marriage to be extremely rewarding. My future bride and I first met while singing in a youth choir. By the time I popped the question, we had become the very best of friends. “Soul mates” is the term we used to describe each other. After a couple of years of diligently trying to conceive, doctors informed us we were infertile, so we sought to adopt. … [A] couple of years [later]… we were given the opportunity to adopt. A great shock came the day after we brought our son home from the adoption agency. While driving home for lunch, I was suddenly overcome with such emotion that I had to pull the car off to the side of the road. Never in my life had I experienced such pure, distilled joy and sense of purpose. I kept repeating, “I’m a dad,” over and over again. Nothing else mattered. I knew exactly where I fit in within this huge universe. When we brought home his brother nearly two years later, I was prepared: I could not wait to take him up in my arms and declare our kinship and my unconditional love and irrevocable responsibility for him. Unfortunately, a few years later my marriage ended…. At this point, the divorce allowed me to explore my homosexuality for the first time in my life. At first, I felt liberated. I enjoyed finally dating guys, and was happy to find myself in a couple of long-term relationships.

3

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 9

My wife and I [had] married in 1985, separated in 1998, [and] divorced in 2001…. I returned to my wife not because of a dramatic change in my sexual orientation, but because of a dramatic change in perception of what is best for our children and for our two lives as well. It took some doing, but after ten years of divorce, we began to pull our family back together…. We have been under one roof for over three years now. Our kids are happier and better off in so many ways. So are my wife and I. Because of my predilections, I deny my own sexual impulses. Has this led to depressing, claustrophobic repression? No. I enjoy my wife’s company immensely. It has actually led to psychological health and a flourishing for both me and our family. We [reunited] because reason led us to resist selfish impulses and to seek the best for our children. And wonderfully, she and I continue to regard each other as “soul mates” now, more than ever. 2 Neither religion nor tradition turned me into a dedicated father. It was something wonderful from within—a great strength that has only grown with time--a complete surprise of the human spirit. In this way and many others, marriage—my bond with the mother of my children—has made me a much better person, a person I had no idea I had the capacity to become. Until a few years ago, I used to support same sex marriage. But over the course of time I found myself unable to defend that position. I arrived at a few surprising conclusions: 1. “Same-sex marriage” is an implausible notion. Two men or two women together may have strong, loving, committed relationships,
2

Another example of a man who self-identifies as “gay,” yet is protecting his children’s welfare by aligning himself in a marriage that provides them with a mother and father, is Josh Weed. See Club Unicorn: In Which I Come Out of the Closet on Our Ten Year Anniversary THE WEED (June 7, 2012) at http://www.joshweed.com/2012/06/club-unicorn-in-which-i-come-outof.html?m=1). 4

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 10

but these are not exactly the same as a relationship between a man and a woman. 2. Two men or two women creating or engineering a family with children is not exactly the same as a family headed by a man and a woman. 3. Kids need and yearn for both a mother and a father, and should not be deprived of either a mom or a dad through same-gender marriages… I know most gay dads think that they have enough love to compensate for their child’s missing parent of the opposite gender. I get that. I used to think that. It’s a very natural conclusion for a parent who loves their child with their whole heart. But even if a gay male couple exists who are ranked the #1 Best and #2 Best Dads in the world, all their love, good intentions, parenting skills and capabilities still cannot adequately compensate for the Mom of whom they have deprived their children. The State’s assertion of liberty for gays and lesbians is neither an illusion, nor “meaningless.”
The disrict court’s decision makes the following statement: “The State asserts that Amendment 3 does not abridge the Plaintiff’s fundamental right to marry because the Plaintiffs are still at liberty to marry a person of the opposite sex. But this purported liberty is an illusion. . . . Plaintiffs’ asserted right to marry someone of the opposite sex is meaningless.” (Kitchen v. Herbert, Slip Op. 23-24)

As a gay man, I wholeheartedly disagree. My family is not an illusion, nor are the many marriages and families testified to in “Voice(s) of Hope,” a website created by same-sex attracted men and women. LGBT activists often present the following “Hobson’s Choice” to those who have experienced same-sex attraction, especially young people: “Either jump out of the closet, join the celebration, make being gay or lesbian the dominant characteristic of your life and the
5

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 11

sole foundation of your identity, and join the same-sex marriage lobby—or remain ‘closeted,’ deny yourself, choose a false identity, become depressed, and risk suicide.” This tactic purposefully suppresses the truth that there are many other options available to those who are attracted to persons of the same sex. As someone who experiences same-sex attraction, I should know. Many of us who are same-sex attracted know intuitively, in the very core of our beings, that this “Hobson’s Choice” can’t possibly be all that the world has to offer. It is a false meme, another cornerstone of political correctness. Many gays and lesbians reject this narrative, not because of self-loathing, as name-calling activists blithely assert, but because they are able to make an adult judgment based on reason and nature. Since I’ve entered the national debate on same-sex marriage, many men and women have come forward to tell me that they, too, have chosen a path that is anathema to LGBT activists. Many find great joy and fulfillment in heterosexual marriage. Many also find joy in close same-sex relationships that do not become sexual and are never meant to be carnal. Whereas LGBT activists seek to limit the options of the same-sex attracted, new voices are now appearing on the scene to open wide the door to diverse choices. “Voice(s) of Hope” is one such effort. In short videos, often seated next to their (opposite-sex) spouses, samesex-attracted men and women testify to the choices—choices that go against the script the LGBT lobby promotes— that have given them profound joy: accepting themselves, but directing their love toward different ends.3 “Voice(s) of Hope” delivers a self-affirming message that many hunger to hear. According to Google Analytics, during the first six months of its presence on the internet, the site’s estimated reach was
3

See http://www.ldsvoicesofhope.org/. 6

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 12

forty-three million (43,000,000) and climbing.4 Same-sex attracted men and women around the world are starving for the very message that many LGBT activists seek to suppress. Not long ago, a gay friend called and asked me if I were “still available,” meaning, was I interested in dating another guy who had expressed an interest in me? My answer was “No.” My puzzled friend asked, “Why not?” He knew that I hadn’t been in a relationship with another man for quite some time. I did not hesitate to answer: “Because I love my wife.” Selfishness of adults trumping the rights of children. … No same-sex couple can reproduce without extraordinary medical and scientific interventions. Male, mono-gendered couples can’t get around the fact that they need to obtain eggs and employ a female surrogate. Female, mono-gendered couples can’t escape the fact that they need to obtain sperm, either through friendly donation or by visiting a sperm bank. [And] children produced for same-sex marriages are being [commodified]. Obtained only through extraordinary means, [including] … the buying and selling of genetic material and the renting of a womb for nine months, children become chattel. We now see adults asserting their right to obtain a child for their own personal satisfaction through any means possible. If producing life and having a baby is important to same-sex-attracted men and women, each needs to confront him/herself with a simple decision: “Is my desire to have a child more important to me, or is my desire to seek complete sexual satisfaction more important?” These are mutually exclusive commitments.

4

See Ty Mansfield, Voice(s) of Hope Project FACEBOOK (October 11, 2013) at https://www.facebook.com/pages/Ty-Mansfield/262688917181999. (“Based on the landmark book by the same name, since its launch in March 2013, the estimated reach of the Voices of Hope project has exceeded 43 million people.”).

7

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 13

If a same-sex-attracted man desires to have a child, he needs to marry a woman and remain married to her and faithful to her for the entire life of the child, or until he dies, whichever comes first. If a woman who is same-sex-attracted wants to bear a child, she needs to find a husband and remain married and faithful to him for the entire life of her child, or her death, whichever comes first. Only one arrangement – [bi-]gendered marriage -- serves the needs of the child first and foremost. All other arrangements place the needs of gay or lesbian prospective parent(s) first. Biological families are best for children, yet families produced or engineered for same-sex marriages are never 100% biologically intact, depriving children of something which by birthright should naturally be theirs. Motherless parenting is not a misnomer. Same-sex marriage, while un-defining marriage, will also un-define children. The New York Times ran an article in June, 2013 by a gay dad entitled “The Misnomer of ‘Motherless’ Parenting. 5” The author’s conclusion — “so, motherless parenting is a misnomer” — doesn’t make sense. It’s an example of a non-sequitur. This whole piece can be summed up as an adult justifying himself rather than empathetically taking up his children’s needs and desires. His final two lines: “Still, the overarching idea behind parenting by gay men should be that it is great for a child to have one or two dads, and that not having a mom in your daily life can be hard. And that it is O.K. to long for a soft cheek instead of a stubbly one.” He’s wrong, it’s not okay to long for a soft cheek and find instead only a stubbly one. That child’s longing deserves to be addressed and satisfied. ...When a second dad is present, it seems to me like an enormous act of hubris, declaring that the parent’s sexual needs and need for a
5

Frank Ligtvoet, The Misnomer of ‘Motherless’ Parenting N.Y. TIMES (June 22, 2013) at http://www.nytimes.com/2013/06/23/opinion/sunday/the-misnomer-ofmotherless-parenting.html?_r=1&. 8

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 14

particular type of companionship overwhelmingly trump the kids’ deep need and desire for a mom. The presence of the second dad is almost a defiant rebuke against the children’s yearning for a mom. The author writes that “we have to help our kids find a narrative that is honest about the circumstances,” but the reality is that the children are being asked to live their lives pretending that the absence of a mom makes no difference. Most kids end up playing along, but these men ask way too much of their children. It would be better for these guys to be honest and say to their kids, “We don’t actually care that you don’t have a mom. Just deal with it.” Motherless parenting is not a “misnomer.” It remains the heart of the issue…. Children [need] both a mother and a father. Not two parents of any gender, but one mother and one father...intact, for life. Intellectual honesty and surprise conclusions. Over the last couple of years, I’ve found our decision to rebuild our family ratified time after time. One day as I turned to climb the stairs I saw my then sixteen-year-old son walk past his mom as she sat reading in the living room. As he did, he paused and stooped down to kiss her and give her a hug, and then continued on. With two dads in the house, this little moment of warmth and tenderness would never have occurred. My varsity-track-and-football-playing son and I can give each other a bear hug or a pat on the back, but the kiss thing is never going to happen. To be fully formed, children need to be free to generously receive from and express affection to parents of both genders. [Same-gender] marriages deny this fullness. There are perhaps a hundred different things, small and large, that are negotiated between parents and kids every week. Moms and dads interact differently with their children. To give kids two moms or two dads is to withhold from them someone whom they desperately need and deserve in order to be whole and happy. It is to permanently etch “deprivation” on their hearts. What now?

9

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 15

We are in the middle of a fierce battle that is no longer about rights. It is about a single word, “marriage.” In our day, prejudice against gays is just a very faint shadow of what it once was. But the abolition of prejudice against gays does not necessarily mean that same-sex marriage is inevitable or optimal. There are other avenues available, none of which demands immediate, sweeping, transformational legislation or court judgments. Two men or two women together are, in truth, nothing like a man and a woman creating a life and a family together. Same-sex relationships are certainly very legitimate, rewarding pursuits, leading to happiness for many, but they are wholly different in experience and nature. “Marriage” is not an elastic term. It is immutable. It offers the very best for children and society. We should not adulterate nor mutilate its definition, thereby denying its riches to current and future generations.
II. Allowing Same-Sex Marriage Would Increase the Number of Children Deprived of Either a Mother or a Father A. Children are Harmed through the Loss of a Mother or Father: A Plea From a Donor-Conceived Woman (Alana Newman’s Story)

Children being raised without either their biological mother or biological father would result from Third Party Reproduction (“3PR”), as well as through other methods utilized by same-gender spouses to obtain children. Alana Newman has personally experienced what it was like to grow up as a donor-conceived child without ever knowing her biological father. Alana relates: I remember being told around age five that I was conceived by an anonymous sperm donor. …I have experienced disenfranchised grief over my conception for years and on many different occasions….

10

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 16

Children whose [present] biological parents die are given the tools, time, and permission to grieve. Children whose biological parents are missing via gamete donation are given none of these things, and in fact we’re expected to be grateful for our situation—grateful to be alive at all. I’ve spent nearly a decade searching for my father, as do so many others. I suffered all the same “daddy issues” that other girls with absent biological fathers endure—issues that have threatened my physical health, mental health and immediate safety. I developed a disturbing hatred of the opposite sex, major behavioral problems and a troubling confusion about the value of human life and the difference between sacred and commercial activities and areas of life. …I developed severe behavioral problems that I only recently realized were tied to being donor-conceived. … I was taught that donorconception was normal and urged to focus on how much my mother wanted me. But I struggled with so many questions, including: If it is okay to buy and sell sperm and eggs, why is it wrong for someone to sell human organs…or their born child? If it is okay to sell one’s reproductive capacities, why is it wrong to sell one’s sexual capacities? And if it is okay to force a child into existence because that child is “wanted,” then why is it wrong to force a child out of existence because it’s unwanted? I was passively taught that fathers are unimportant and men are disposable, [so] I believed it was reasonable for me to ask [a boyfriend from whom I had broken up] for his sperm for future use. [The legalization of same-gender marriage] would increase demand for 3PR. But surrogacy and the gamete trade…will only create more problems—expensive problems. … …[C]hildren conceived via 3PR face a real threat to their mental health and emotional well-being. The [2010] report titled, “My Daddy’s Name Is Donor: A New Study of Young Adults Conceived through Sperm Donation,”6 found that: ELIZABETH MARQUARDT, ET AL., MY DADDY’S NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION (Institute for 11
6

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 17

• Donor offspring are significantly more likely than those raised by their biological parents to struggle with serious, negative outcomes such as delinquency, substance abuse, and depression, even when controlling for socio-economic and other factors. • Donor offspring and those who were adopted are twice as likely as those raised by biological parents to report problems with the law before age 25. • Donor offspring are more than twice as likely as those raised by biological parents to report substance abuse problems…. Even children who are conceived in other ways than through 3PR for samegendered couples would be vulnerable to the losses and risks associated with being fatherless or motherless. Alana remarks: Much research has already been conducted on the negative effects of fatherlessness on children. We know that 80 percent of rapists come from fatherless homes and most likely act out of displaced anger. We know 75 percent of adolescents in chemical abuse centers come from fatherless homes. We know that girls who grow up without their father are 71 percent more likely to become teen moms and 92 percent more likely to divorce. And we know that 90 percent of all homeless and runaway youth are from fatherless homes. 7 There is no evidence that children conceived via sperm donation fare differently. In fact, a new study out of Canada shows that children raised by lesbian parents are 15 percent as likely to graduate high school as compared to their peers raised by opposite-sex parents. 8 We do not yet know the exact consequences of deliberate motherlessness. Let’s be clear. Fathers and mothers are both essential American Values 2010) at http://www.familyscholars.org/assets/Donor FINAL.pdf. 7 Statistics THE FATHERLESS GENERATION (no date) at http://thefatherlessgeneration.wordpress.com/statistics/. 8 Mark Regnerus, A Married Mom and Dad Really Do Matter PUBLIC DISCOURSE (October 8, 2013) at http://www.thepublicdiscourse.com/2013/10/10996/. 12

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 18

—as is the right to be born free, without a price tag and with full access to one’s heritage. I urge policy-makers to pause and think twice about the generational impact [that dictating same-gender marriage] will have. [G]enerations of individual children …[need the Court’s protection] from [such] pain, loneliness, guilt, and physical, psychological, and emotional struggle.
B.

If Utah’s Marriage Amendment is Overturned to Allow SameGender Couples to “Marry,” Children’s Best Interests Will Be Lost: The Perspective of Professor Robert Oscar Lopez

Professor Lopez also speaks in behalf of children’s needs and believes it is in the best interests of a child to have the care and nurture of both a father and mother. Neither his relationships with his “two mothers,” nor his eight years with a group of gay men that he considered “family,” could stem the longing he felt for a relationship with his father. He writes: I'm bisexual. …From the time I was a toddler until I was nineteen, my mother, who was lesbian, raised me with her life-long, female partner. My father was very tangential in the household when I was growing up. He wasn't around much. [As an adult] I went to the Bronx, to live with a group of gay men. I lived in that world for eight years. We really acted like a family. We took care of each other. I held many gay men who were sick because of HIV. In 1998 I found myself in the basement of Montefiore Hospital in the Bronx. I had just had emergency surgery…. And at age 27, as I contemplated that [my cancer] might be fatal, I called my father. I wanted to look him in the eye and say to him, "You're my father, and I'm your son." He flew down to New York City, and I said that to him. He took care of me, and now we're close.

13

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 19

Having missed out on having a close relationship with his father during his growing up years, Lopez took a position in favor of civil unions, but against same-sex marriage, which would deprive children of one of their parents. He writes: [Some of t]he motivations that lead gays and lesbians to fight for [samesex marriage] are motivations that I share as well. So, if we can identify what we have in common, perhaps it will make it easier to talk about where we disagree. [To] peel away all the politics of it: At the core… [y]ou want other people to take the time to understand who all the important people in your life are, to recognize and acknowledge those relationships with respect and dignity. I want those same things. …But something unfortunate happened in the late 1990's. A group of gay organizations took over and they chose to speak for the entire gay community. …[T]hey put out the idea that it had to be marriage, and that people …felt uncomfortable with marriage equality, suddenly became the enemy. I became the enemy. That was hurtful to me because my position grew out of decades of thinking about it, and decades of personal experience. …[I]t hurt a lot to be called a 'bigot," to be called a "hater," to be called all of these things because of the position I hold. It got worse in 2003. In that year, the high court of Massachusetts delivered the opinion (Goodridge v. Department of Public Health) that gave same-sex couples marriage rights. At that time I was an English professor at Rutgers University-Camden, immersed in a liberal and progay environment. Around me, there were many activists who celebrated the Massachusetts decision and then pushed it a step further, claiming that the legal right to marry also implied a constitutional right to be a parent, a constitutional right to have children.

14

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 20

…The problem is that gays and lesbians would have a constitutional right to control someone else who is not their child. This is the juridical dilemma that has worried activists in France and which sparked that country's massive mobilizations against homosexual marriage: if there is a constitutional right to marry and if this includes a corollary right to "have children," then children are the object of rights and do not have rights themselves. There's no way around it: for a same-sex couple to have parental rights to a child, one partner or perhaps both have no biological connection to the child. Adoptions are sometimes necessary and often positive things, but they cannot be structured based on the right of adults to have a child under their custody; adoptions must be structured around society's obligation to provide a child with a home, and a child's right to a mother and father. Human trafficking will come swiftly on the heels of any society's belief that adults have a "right" to the body of a child under their possession. Hence, to say that the control of a child is protected by the Constitution because it is the right of the adult and not the best interest for the child, and to say that this is part of the fight for same-sex marriage equality, has given me great pause…. The link between same-sex marriage and same-sex parenting came without a lot of clarity or care for the impact on children. Virtually all the discussion about same-sex parenting has revolved around evaluating gay adults and their parenting skills… [N]owhere has there been a thorough discussion about whether it is fair to strip a child of his or her mother or father in a manner that would be lifelong and permanent, and when the child is too young to consent to a change in his or her identity, or even to understand what has happened. The dynamics inside the same-sex parenting home are troubling in this context, because the child is in the continual custody of two gay adults who have a vested interest and likely compulsion to "brainwash" the child into discounting the value of the missing biological parent(s). These are concerns that are not being addressed by the copious sociological studies into same-sex parenting. Such studies are overwhelmingly focused on external markers of success like graduation rates or metrics so basic, such as "being well-adjusted," as to be 15

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 21

effectively meaningless. The goal of such studies has been to defend or doubt the capability of the gay adults to parent, rather than on the fundamental question of the child's right to his or her identity, heritage, and origins. The impetus to link the two "rights" -- marriage and custody of children who aren't one's own -- seems to have come largely from gay-advocacy organizations. The gay advocates have chosen to base their legal arguments for same-sex marriage on a supposed "consensus" among social scientists that gay people can be good parents. By linking these two concepts, gay activists have made it impossible to reaffirm society's need to recognize and honor relationships with gay adults, without simultaneously destroying children's relationships with their own mothers and fathers. …[G]ay rights organizations push for arrangements that allow them to obtain children and exclude the opposite-sex parent whose genetic material makes the child who he or she is. The more confident that such gay-rights advocates become in their "right" to be a parent or "right" to adopt, the more willing they are to use the force of the state to compel children to remain in their homes. Adoption activist groups such as AmFOR, or Americans for Open Records (http://www.amfor.net/gay.html), have expressed displeasure at the mention of a "right to adopt," because it implies that orphaned or abandoned children are property. I don't like that, because our movement -- the gay movement -- began as an attempt to honor those relationships which count in a person's life. So when you make such an arrangement, buying out a father by going to a sperm bank, or buying out a mother by going to a surrogacy broker, or by pressuring an adoption agency to place a child in your home when there is another home available where there are both a mother and a father present; when you go to a divorce court with the explicit purpose of divorcing your spouse and running off with a new gay partner and getting custody and cutting out your previous spouse - the biological parent of your child -- all of these things indicate that you are not respecting the bonds that tie a child to his or her mother and father.

16

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 22

Those are natural-born connections to other people. It's a natural-born right to have those connections and to have society respect them. Perhaps some children stripped of a mother or father might reach the age of majority and feel fine with missing the other parent; but adults do not have the right to alienate a child from a mother and father when the child is too young to consent to the loss. ..[W]hy ought we [to] accept a new legal system that will deprive a subset of children of such a fundamental relationship against their will…? When either a mother or a father is missing, even if there are two or three or four other adults taking care of you, there's still a profound absence. It's a loss which affects one profoundly. You can have social scientists issue declarations that they have done a study and found that children raised by same sex couples get OK grades and they don't become mentally insane or criminals, so it's OK, they experience no disadvantages. …[G]ay marriage law [could] … shatter the bonds between a child and both parents in order to validate the sexual and romantic relationship between adults. What I glean from this experience is that the children placed in samesex couple homes will be placed in a dangerous situation. Should things go wrong in the home, the instinct of the gay community will be to cover up the wrongs and silence the child. The child will have nobody to turn to. I cannot foresee, realistically, members of the gay community listening to children raised in gay homes when they express negative feedback. More ominously, I cannot foresee them reporting abuse or violations to authorities. ….

17

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 23

CONCLUSION Utah family law has long been based around seeking the “best interests” of children, which has been defined in the Utah Code as being raised by their two natural parents.9 The life experiences of the amici, as well as research provided, have validated such child-affirming, family law policy, through demonstrating the grief, confusion, emotional pain, statistical risks, and other detriments to children cut off from a mother or father. Only time will tell how well children intentionally deprived of the parenting from one gender or the other through same-gender marriages will be able to parent their own, future children. Redefining marriage in Utah would deprive many children—specifically those obtained by same-gender couples from either a mother or a father and would not be in their best interest, but would be to their detriment. Amici have also shown that it is rewarding for those with same-gender attraction who want to parent children to choose traditional marriages in behalf of providing a mother and a father to their children, per their children’s best interests, and live happy, fulfilling, satisfying lives. For the foregoing reasons, amici respectfully request this court to reverse the decision of the court below.

9

Utah Code § 62A-4a-201(c). 18

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 24

Dated: February 10, 2014 Respectfully submitted, s/Dani Hartvigsen Dani Hartvigsen 1163 East 1220 North Orem, UT 84097 801-691-3466 danihartivgsen@hotmail.com

19

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 25

CERTIFICATE OF COMPLIANCE WITH RULE 32(A) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 5,577 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2013 in 14point Times New Roman font.

Date: February 10, 2014

s/ Dani Hartvigsen Dani Hartvigsen

20

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 26

CERTIFICATE OF SERVICE I hereby certify that on February 10, 2014, I electronically filed the foregoing using the court’s CM/ECF system, which will send notification of such filing to the following: Peggy A. Tomsic tomsic@mgplaw.com James E. Magleby magleby@mgplaw.com Jennifer Fraser Parrish parrish@mgplaw.com Magleby & Greenwood, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell dcodell@nclrights.org National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness rchamness@slco.org Darcy M. Goddard dgoddard@slco.org Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 Gene C. Schaerr gschaerr@utah.gov Brian L. Tarbet btarbet@utah.gov Parker Douglas pdouglas@utah.gov 160 East 300 South Salt Lake City, UT 84114-0856 John J. Bursch jbursch@wnj.com Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste. 900 Grand Rapids, MI 49503

21

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 27

Monte N. Stewart Stewart@STM-Law.com 12550 W. Explorer Dr., Ste. 100 Boise, ID 83713

Date: February 10, 2014

s/Dani Hartvigsen Dani Hartvigsen

22

Appellate Case: 13-4178

Document: 01019200400 01019200147

Date Filed: 02/10/2014

Page: 28

CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that:

(1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program Windows Defender, last updated February 9, 2014, and according to the program are free of viruses. s/Dani Hartvigsen Dani Hartvigsen

23

Sign up to vote on this title
UsefulNot useful