Professional Documents
Culture Documents
PHILIP S. LOTT (5750) STANFORD E. PURSER (13440) Assistant Utah Attorneys General JOHN E. SWALLOW (5802) Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101 Email: phillott@utah.gov Email: spurser@utah.gov Attorneys for Defendants Gary R. Herbert and John E. Swallow IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, vs.
Civil Case No. 2:13-cv-00217-RJS GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. Judge Robert J. Shelby
81
ii
31.
413
32.
457
33.
529
34.
35.
36. 37.
38.
39.
Margaret Somerville, What About the Children, in DIVORCING MARRIAGE: UNVEILING THE DANGERS OF CANADAS NEW SOCIAL EXPERIMENT 63-78 (Daniel Cere & Douglas Farrows eds., 2004). Margaret Somerville, Childrens human rights and unlinking child-parent biological bonds with adoption, same-sex marriage and new reproductive technologies, 13 J. FAM. STUD. 179-201 (2007). Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure, 1 INTL J. JURISPRUDENCE FAM. 35 (2010). Don Browning & Elizabeth Marquardt, What About the Children? Liberal Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 173-192 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P. George & Jean Bethke Elshtain, eds., 2006). THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed., 1950). CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 39-42 (Joachim Neugroschel & Phoebe Hoss trans. 1985) G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988). EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994). CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 7-8 (Kingsley Davis, ed., 1985). JAMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002). BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962). DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate Stanley ed., 2005). DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF CHILDREN AND SOCIETY 139-63 (1996). William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM. 277-292 (1998). KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILDS PERSPECIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO ABOUT IT?, a Child Trends Research Brief (2002). Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011). iv
669
687
710 732
752
770
49. 50.
852 868
51.
876
52.
53.
54.
55.
56.
57.
58.
59.
60.
66. 67.
ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE: ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research Brief (2011). SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report (November 2008). U.S. Dept. of Health and Human Servs., Administration for Children & Families, Office of Planning, Research & Evaluation, Distribution of Abuse and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (NIS-4) Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF CHILDREN 75-96 (2005). Douglas W. Allen, High school graduation rates among children of same-sex households, 11 Rev. of Econ. Of the Household (published on-line September 26, 2013). Mark Regnerus, How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study, 41 SOCIAL SCIENCE RESEARCH 752-70 (2012). Mark Regnerus, Parental same-sex relationships, family instability, and subsequent life outcomes for adult children: Answering critics of the new family structures study with additional analyses, 41 SOCIAL SCIENCE RESEARCH 1367-77 (2012). Loren Marks, Same-sex parenting and childrens outcomes: A closer examination of the American psychological associations brief on lesbian and gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012). WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and Public Policy Research Brief (2012). JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37, 55-57, 59-60, 76-104, 117-120, 227-28 (1995). JOHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010). Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, Jan.Feb. 2012 Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES, June 11, 2002. INSTITUTE FOR AMERICAN VALUES (BENJAMIN SCAFIDI, PRINCIPAL INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY STATES (2008). BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR FAMILIES & RELATIONSHIPS (July 26, 2006). SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012). v
884
890
892
936
959
983
1002
1013
1030
1175 1202
DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106, 120-25, 171-75, 179-201 (2007). [Reserved] [Reserved]
1227
Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3500 Salt Lake City, Utah 84190-1210
rchamness@slco.org dgoddard@slco.org
vii
or goals-based. Ibid. 171-77. [FN264J. Ibid. [FN265J. Ibid. at 180. [FN266J. Ibid. The broad range of arguable derivative rights and goals identified by Dworkin himself foreshadows later concerns with the indeterminacy of the right of equal concern and respect. [FN267J. Ibid. at 182. [FN268l. Ibid. at 273. [FN269J. Ibid. at 273-74. [FN2701. Ibid. at 275-76. [FN271J. Ibid. at 277. [FN2721. Ibid. at 275-76. [FN2731. Ibid. at 273. [FN2741. Ibid. [FN275J. Ibid. [FN276J. J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980). [FN2771. See e.g. Dworkin, supra note 260 at 91, 191,269. [FN2781. Finnis, supra note 276 at 218. [emphasis in original] [FN279J. Ibid. at 222. [FN280l. Ibid. [FN28ll. J. Ely, "Professor Dworkin's External/Personal Preference Distinction" (1983) Duke L.J. 959 (providing some criticisms and referencing others by Hart, Sager, and Regan). [FN282]. R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000). [FN2831. Ibid. at 481, n. 9. It is a commonplace that Dworkin is a moving target. What is important for purposes of Canadian equality jurisprudence is the content of Dworkin's right to equal concern and respect as the SCC adopted it in 1989, with its reiterations since. [FN2841. Mv. H supra note 24.
001459
[FN285J. Ibid. at para. 124, Iacobucci J, Ibid. at paras. 316, 321, Bastarche J, u.
[FN286J. Supra note 17 at, ss. 7, 10, 36(1), 39(1). [FN28 71. Law v. Canada, supra note 85 at para. 51. [FN288J. Lawrence v. Texas, supra note 42 [FN289]. Dworkin, supra note 260 at 275-77. [FN290J. Ibid. at 273. [FN291J. EGALE, supra note 2 at para. 130; Halpern, supra note 3 at paras. 100-107. [FN292J. Dworkin, supra note 260 at 273 (the right to equal treatment is "perhaps" properly applicable in the reapportionment cases). [FN293l. Ibid. [FN294J. See e.g. Kotch v. Board o[River Port Pilot Comrs. 330 U.S. 552. 67 S.Ct. 910 (1947). [FN295]. Nixon v. Administrator of General Sen 1ices. 433 U.S. 425 at 506. 97 S.Ct. 2777 (1977). [FN296J. Ibid. ("[T]his Court has held that the presumption of constitutionality does not apply with equal force where the very legitimacy of the composition of representative institutions is at stake.") (citing Revnolds v. Sims. 377 U.S. 533. 84 S.Ct. 1362 (1964)). [FN297J. Ibid. Of course, a court that has adopted Dworkin's right to equal concern and respect into its equality jurisprudence may assert that its adoption was of some "core concept" and not of all the elements of the theory as promulgated; in other words, that the court is not necessarily bound by the theory's self-limitations. In such a case, however, it would seem that the court would be under a duty to publicly demonstrate the severability of the limitation. That would be especially so where, as here, the theory is a carefully integrated and unitary piece of legal craftsmanship that does not suggest any rational or logical basis for severance of the limitation. To jettison a part of the theory that stands in the way of a particular end (genderless marriage) on unpersuasive grounds may fairly open such a court to serious charges against its institutional integrity. [FN298]. Romer v. Evans. 517 U.S. 620. 116 S.Ct. 1620 (1996) at 633. [FN299J. Sunstein, "Foreword", supra note 58 at 53. For a penetrating analysis of the United States Supreme Court's use of "animus", see Steven D. Smith, "Conciliating Hatred" First Things 144 (June/July 2004): 17, online: < www.flrstthings.com/ftissues/ft0406/articles/smith.htm.> [FN300]. Goodridge, supra note 4 at 341-42, quoting Palmore v. Sidoti. 466 U.S. 429. 104 S.Ct. 1879 (1984). Almost immediately (in its n. 33), however, the plurality opinion acknowledges that there is no need to address intent; discriminatory effect is enough. [FN301l. See e.g. M. Bonauto, "The Freedom to Marry for Same-Sex Couples in the United States of America" in Win-
001460
temute & Andenaes, supra note 6, 177 at 205. [FN302J. Law v. Canada, supra note 85 at para. 51 [FN303]. Ibid. at para. 88 [FN304J. Halpern, supra note 3 at paras. 84-87,94, 107. [FN305J. Even the impulse to magnanimity would come to condemn the judicial action if, in time, the societal costs incurred (and judicially denied at the outset) mount and mount. [FN306J. Romer v. Evans, supra note 298 [FN307J. Bowers v. Hardwick. 478 U.S. 186. 106 S.Ct. 2841 (1986), overruled by Lawrence v. Texas, supra note 42. [FN308]. Romer v. Evans, supra note 298 at 641. [FN309]. Sunstein, "Foreword", supra note 58 at 64-69. [FN310l. Ibid. at 67-69. [FN311l. Griswold v. Connecticut, supra note 138. [FN312J. Ibid. at 486; 1682. Tradition, as Sunstein notes, plays no comparable limiting role in equality jurisprudence. Sunstein, supra note 58 at 69. The most famous American equal protection case, Brown v. Board of Education (together with its progeny), demonstrates this difference; the long and wide-spread American tradition of race-segregated schools (de jure and de facto) was not a constraint on the court's power but rather the very target of that power. The limitations on a court's power under an equality guarantee reside not in tradition but in the polity's equality jurisprudence. [FN313J. Constitution of the Republic of South Africa, Act 108 of 1996, s. 10. [FN314l. See e.g. Roe v. Wade. 410 U.S. 113. 93 S.Ct. 705 0973). [FN315l. See e.g. Baehr v. Lewin, supra note 33 at 551-57. [FN316J. A good beginning point might be Kant; his treatment of dignity is discussed in Finnis, supra note 136 at 441-42 and in T. Hill, "Humanity as an End in Itself' (1980) 91 Ethics 84 at 91-92; also see J. Rabkin, "What We Can Learn About Human Dignity from International Law" (2003) 27 Harv. J.L. & Pub. Pol'y 145. [FN317J. Supra note 4. [FN318]. Supra note 46 .. [FN319J. Dworkin, supra note 260. [FN320]. Rawls, supra note 261. [FN321J. Dworkin, supra note 260 at 160.
001461
[FN322J. Ibid. at 155-56. [FN323J. Ibid. at 156. [FN324J. Ibid. at 160. [FN325J. Ibid. [FN326l. Ibid. [FN327J. Ibid. [FN328J. Ibid. [FN329l. Ibid. at 161. [FN330J. Ibid. at 160. [FN331l. Ibid. at 162. [FN332J. Ibid. at 163. [FN333J. Ibid. at 163-68. [FN334J. Ibid. at 166. [FN335J. Ibid. [FN336J. Ibid. at 168. [FN337J. Ibid. [FN338J. Ibid. [FN339l. Goodridge, supra note 4 at 344-51. [FN340J. See e.g./bid. at 351-53, Spina J. dissenting; ibid. at 365-66, 368-75, Cordy J. dissenting. [FN341l. Ibid. at 375-79, Cordy J. dissenting. [FN342J. Ibid. at 350, n. 6. [FN343J. Ibid. [FN344J. Ibid.
001462
[FN345J. Ibid. at 349-50. To the extent this was an invitation to the dissenters to abandon the constructive model and convert to the "right thing", the invitation was rejected: "However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to arrogate that power to ourselves merely because we are confident that 'it is the right thing to do."' ibid. at 362, Sosman J dissenting. [FN346J. Re Opinions of the Justices, supra note 46. [FN34 71. Ibid. at 570. [FN348J. Ibid. [FN349l. Dworkin, supra note 260 at 161. [FN350J. Ibid. [FN351J. Ibid. at 163. [FN352J. Ibid. at 167. [FN353l. Ibid. at 168. [FN354J. Ibid. [FN355J. Ibid. at 166. 21 Can. J. Fam. L. 11 END OF DOCUMENT
001463