No.

13-4178
_________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
__________________________________________
DEREK KITCHEN, et al.,

PLAINTIFFS-APPELLEES,
v.
GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D.
REYES, in his official capacity as Attorney General of Utah,

DEFENDANTS-APPELLANTS,
and
SHERRIE SWENSON, as Salt Lake County Clerk,
DEFENDANT.
____________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH, CASE NO. 2:13-CV-00217 RJS
(HONORABLE ROBERT J. SHELBY)
___________________________________________

BRIEF OF AMICUS CURIAE DAVID BOYLE SUPPORTING
APPELLANTS AND SUPPORTING REVERSAL
___________________________________________

David Boyle
P.O. Box 15143
Long Beach, CA 90815
(734) 904-6132
dbo@boyleslaw.org
Pro se Counsel for Amicus Curiae David Boyle

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Docket Reference Number: [10148593]


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TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………...iii
PRIOR OR RELATED APPEALS………………………………………………..ix
STATEMENT OF INTEREST OF AMICUS CURIAE…….………………..........1
SUMMARY OF ARGUMENT…………………………………………………….2
ARGUMENT………………………………. ………….…………………….…….4
I. UTAH: AN AMAZING VOYAGE FROM POLYGAMY TO GAY
MARRIAGE....................................................................................................4
II. DIVERSE MARRIAGE: THE GOOD OF HETEROSEXUAL,
DIFFERENT-SEX MARRIAGE PARTNERS, IN LIGHT OF
GRUTTER ….……….………………………………………………………5
A. Arguments for Diverse Marriage Only………………………………...5
B. Counterarguments Refuted…………………………………………...11
III. THE FEDERAL GOVERNMENT PRESENTLY ENDORSES GENDER-
DIVERSE MARRIAGE AS OPTIMAL.……… …………………………15
IV. THE COURAGE OF RONALD REAGAN IN OPPOSING THE BRIGGS
INITIATIVE; AND HIS SAGACITY IN RECOGNIZING THE STATE
NEED NOT LAUD ALL GAY LIFE CHOICES………………………...19
V. GAY MARRIAGE AND THE PUBLIC FISC…………….......................20
VI. NONREPRODUCTIVE SEX AS CANCER, AIDS, AND INJURY
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VECTOR……….........................................................................................21
VII. “LAWRENCE AND NO FURTHER”; OR, NEGATIVE LIBERTY,
POSITIVE LIBERTY, AND “STATE-SUBSIDIZED SODOMY”……..24
VIII. MANY ARGUMENTS FOR MANDATORY GAY MARRIAGE
WOULD ALSO APPLY TO POLYGAMY, FORBIDDEN IN
UTAH……………………………………………………………………25
IX. RATIONAL BASIS SANS ANIMUS IS THE RIGHT LEVEL OF
SCRUTINY, THOUGH AMENDMENT 3 MAY PASS HIGHER
LEVELS AS WELL; AND THE REASONS ADDUCED HERE
COMPRISE A VERY COMPELLING STATE INTEREST…………...28
X. GENEROUS ALTERNATIVES TO COURT-ORDERED LEGAL GAY
MARRIAGE……………………………………………………………..30
(ANTECONCLUSION)………………………………………………………..31
CONCLUSION……………………………….…………………………………..32
CERTIFICATE OF COMPLIANCE AND WORD COUNT…………………….33
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY
REDACTIONS……………………………………………………………………33
CERTIFICATE OF SERVICE……………………………………………………34



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TABLE OF AUTHORITIES
CASES
Ballard v. United States, 329 U.S. 187 (1946)…………………………………6, 10
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)………………………………22
Grutter v. Bollinger, 539 U.S. 306 (2003)…………………………..……….passim
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)……………………………………7
Kitchen et al. v. Herbert et al., No. 13-4178 (No. 2:13-cv-217, 2013 WL 6697874
(D. Utah Dec. 20, 2013))………………………………………………...passim
Lawrence v. Texas, 539 U.S. 558 (2003)……….…………………..3, 24, 25, 28, 29
Lochner v. New York, 198 U.S. 45 (1905)………………………………. ………...9
Meyer v. Nebraska, 262 U.S. 390 (1923)……………………………………….9-10
Olmstead v. United States, 277 U.S. 438 (1928)……………………………….....19
Parents Involved in Cmty. Schs. v. Seattle, 127 U.S. 2738 (2007)…………………8
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)…………………………………….9
Roe v. Wade, 410 U.S. 113 (1973)……………...………………………………….9
Romer v. Evans, 517 U.S. 620 (1996)…………………………………………….28
Schuette v. Coal. to Defend Aff. Action, et al., 701 F.3d 466 (6th Cir. 2012) (en
banc) (cert. granted, 81 U.S.L.W. 3539) (No. 12-682)………………………..2
Sproles v. Binford, 286 U.S. 374 (1932)………………………………………….32

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Tigner v. Texas, 310 U. S. 141 (1940)…………………………………………….14
United States v. Windsor, 133 S. Ct. 2675 (2013)……………………….4, 6, 24-25

CONSTITUTION
U.S. Const. as a whole………………………………………………………….1, 27
U.S. Const. art. VI, cl. 2 (Supremacy Cl.)………….……...……………….15 & n.7
U.S. Const. amend. XIV (Equal Prot. Cl.)………...……………………………2, 26
Cal. Const. as a whole……………………………………………………………...1

STATUTES OR BALLOT PROPOSITIONS
Cal. Proposition 6 (“Briggs Initiative”) (1978)…………………..……………….19
Cal. Proposition 8 (2008)……………………...........................................................1
Utah Amend. 3 (2004)………….………………………………………......4, 28, 32

RULES
Fed. R. App. P. 29……………………………………………………………...1 n.1

OTHER AUTHORITIES
Br. of Amicus Curiae David Boyle in Supp. of Pet’r (July 1, 2013) in Schuette v.
Coal. to Defend Aff. Action, et al., 701 F.3d 466 (6th Cir. 2012) (en banc)
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(cert. granted, 81 U.S.L.W. 3539) (No. 12-682)…………………...………….2
Br. of Amicus Curiae David Boyle in Supp. of Pet’rs, on the Non-
Jurisdictional Issues (Jan. 29, 2013) in Hollingsworth v. Perry, 133 S. Ct. 2652
(2013) …………………….................................................................................7
Br. of Amicus Curiae David Boyle in Supp. of Resp’t BLAG of the U.S. House of
Reps., on the Non-Jurisdictional Issues (Jan. 29, 2013) in United States v.
Windsor, 133 S. Ct. 2675 (2013)…..……………………………...…………6-7
Dan Chmielewski, Ronald Reagan on Gay Rights, Liberal OC, June 9, 2008,
http://www.theliberaloc.com/2008/06/09/ronald-reagan-on-gay-rights/
(last visited February 8, 2014, as with all other Internet links
herein)…...............................................................................................19 & n.13
CNN, McCain: Same-sex marriage ban is un-Republican , July 14, 2004, 4:29
p.m., http://www.cnn.com/2004/ALLPOLITICS/07/14/mccain.
marriage/………………...……………………………………...……….1 & n.2
E pluribus unum (prominent American national slogan)…………………………..8
Richard A. Epstein, Judicial Offensive Against Defense Of Marriage Act, The
Libertarian, Forbes.com, July 12, 2010, 1:28 p.m., http://www.forbes.com/
2010/07/12/gay-marriage-massachusetts-supreme-court-opinions-columnists-
richard-a-epstein.html.………………………………………………..27 & n.21
Gay Men’s Health Crisis (“GMHC”), Internet homepage and logo, “GMHC—
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FIGHT AIDS. LOVE LIFE”, http://www.gmhc.org/...........................23 & n.18
GMHC, The Bottom Line on Rectal Microbicide Research (undated, but
concerning a Jan. 23, 2013 presentation), http://www.gmhc.org/news-and-
events/events-calendar/the-bottom-line-on-rectal-microbicide-
research………………………………………………………......23 & n.19
Holly, How dare you mistrust our rich white gay men? Feministe, Jan. 4, 2008,
http://www.feministe.us/blog/archives/2008/01/ 04/telling-it-like-it-
is/……………………………………………………………………..20 & n.14
Nat’l Ctr. for Biotech. Info., U.S. Nat’l Libr. of Med., Nat’l Insts. of Health,
Vaginal “fisting” as a cause of death., PubMed.gov (undated), http://www.
ncbi.nlm.nih.gov/pubmed/2929548......................................................22 & n.17
Passage about affirmative action and gay marriage, found on the Internet but no
longer locatable and without address……………………………................7 n.4
Patricia, Our America with Lisa Ling – “Modern Polygamy” a New Perspective on
an Old Taboo, The Daily OWN, Oct. 24, 2011, http://www.thedailyown.com/
our-america-with-lisa-ling-modern-polygamy-a-new-perspective-on-an-old-
taboo.....................................................................................................26 & n.20
Matt Sloane, Fewer teens having oral sex, CDC says, CNN, KSBW.com, Aug. 17,
2012, updated 8:34 a.m., http://www.ksbw.com/news/health/Fewer-teens-
having-oral-sex-CDC-says/-/2024/16166548/-/38nxasz/-/index.
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html.................................................................................................22 & n.16, 24
St. of Utah (Herbert et al.), Reply In Supp. of Application to Stay J. Pending
Appeal (Jan. 6, 2014), in the S. Ct. of the United States (No. 13A687, re
Kitchen et al. v. Herbert et al., No. 13-4178)……… ………………….……...6
Charles Tiebout, ideas on “voting with your feet”…………………………………5
U.S. Dep’t of Health and Hum. Servs. (“HHS”), Promoting Responsible
Fatherhood—Promoting Responsible Fatherhood Home Page, http://www.
fatherhood.hhs.gov/ (last revised July 21, 2011)............................17 & n.12, 18
HHS, Promoting Responsible Fatherhood—Effective Parenting, http://
fatherhood.hhs.gov/Parenting/index.shtml (last revised July 25,
2011)……………………………………………………….….15 & n.8, 18
HHS, Promoting Responsible Fatherhood—Healthy Marriage, http://
fatherhood.hhs.gov/Marriage/index.shtml (last revised July 25,
2011)..............................................................................................16 & n.10
HHS, Nat’l Responsible Fatherhood Clearinghouse, Strong Families/ Healthy
Relationships (undated), http://www.fatherhood.gov/for-programs/for-your-
fathers/strong-families-healthy-relationships.......................................17 & n.11
HHS, Nat’l Responsible Fatherhood Clearinghouse, The President’s Fatherhood
Pledge (undated), http://www.fatherhood.gov/pledge...........................16 & n.9
Hilary White, Group marriage is next, admits Dutch ‘father’ of gay ‘marriage’,
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LifeSiteNews, Mar. 12, 2013, 4:58 p.m., http://www.lifesitenews.com/news/
group-marriage-is-next-admits-dutch-father-of-gay-marriage.......27-28 & n.22
Wikipedia, Anal sex, http://en.wikipedia.org/wiki/Anal_sex (as of Feb. 7, 2014, at
16:41 GMT)……………………………..………………………..21-22 & n.15
















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PRIOR OR RELATED APPEALS

Bishop v. Smith, No. 14-5003, pending in this Court, involves a constitutional
challenge to the State of Oklahoma’s definition of marriage as comprising only the
union between one man and one woman.
Also, in the United States Court of Appeals for the Ninth Circuit, there is a
pending appeal, Sevcik v. Sandoval, No. 12-17668, addressing the constitutionality
of the State of Nevada’s definition of marriage.




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STATEMENT OF INTEREST OF AMICUS CURIAE
The present amicus curiae, David Boyle (hereinafter, “Amicus”),
1
is
respectfully filing this Brief Supporting Appellants (Gary Herbert et al.) and
Supporting Reversal in Kitchen et al. v. Herbert et al., No. 13-4178 (No. 2:13-cv-
217, 2013 WL 6697874 (D. Utah Dec. 20, 2013)). Amicus has multiple interests in
this case. Over the years, he has promoted same-sex (“gay”) rights by, e.g.,
contacting the Ugandan government on various occasions to express distaste with
their proposals to jail gays. (Although gay marriage is a mere government-granted
privilege, not a fundamental right like life or liberty.)
Also, he lives in California, and in 2008, voted “no” on Proposition 8, which
put a ban on gay marriage into that State’s Constitution. His vote was not to
morally endorse gay marriage, but somewhat in the moderate spirit of John
McCain, see, e.g., CNN, McCain: Same-sex marriage ban is un-Republican , July
14, 2004, 4:29 p.m.
2
(Senator opposes federal constitutional ban on gay marriage).
However, after “Prop. 8” passed, Amicus did not think, “That violates the U.S.
Constitution—it’s illegal”; he simply noted that the law had changed, fair play was
had in a democratic election, and the People decided not to support gay marriage.

1
No party or its counsel wrote or helped write this brief, or gave money to its
writing or submission, see Fed. R. App. P. 29. All parties have filed blanket
permission with the Court for amici to write briefs.
2
http://www.cnn.com/2004/ALLPOLITICS/07/14/mccain.marriage/ (last visited
February 8, 2014, as with all other Internet links herein).
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Amicus has also submitted briefs to the U.S. Supreme Court concerning
constitutional matters, e.g., his Schuette v. Coalition to Defend Affirmative Action,
et al.
3
amicus brief (7/1/2013) opposing mandatory affirmative action, see id.; in
that case, because the idea that the Equal Protection Clause of the Constitution’s
Fourteenth Amendment mandates legalized affirmative action—even after the
People of a State voted to end affirmative action—is absurd. Similarly, in the
instant case, the idea that the Equal Protection Clause, or anything else besides the
People’s vote, mandates legalized gay marriage in a State, is unsupportable.
SUMMARY OF ARGUMENT
The people of Utah should be able to decline official State endorsement of
gay marriage, just as they rightfully decline to endorse polygamy (i.e., bigamy).
There are many rational, substantial, or compelling reasons to deny governmental
support for gay marriage, though some have received little publicity.
For example, the compelling state interest of diversity, noted in Grutter v.
Bollinger (539 U.S. 306 (2003)), is served by traditional marriage, since a man-
woman couple is gender-diverse as no same-sex couple can ever be. One cannot
credibly say that diversity is compelling for a mere few years at the college level,

3
701 F.3d 466 (6th Cir. 2012) (en banc) (cert. granted, 81 U.S.L.W. 3539) (No.
12-682).
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see id., and then about-face and claim that it cannot be even a rational interest
during a full 18 years of pre-adult family nurturing.
Even the federal Government openly admits, at present, the need for both a
mother and a father. Amicus shall cite multiple sources.
Governmental leader Ronald Reagan courageously opposed an initiative that
banned gay public-school teachers, at the same time he opposed “teaching a gay
lifestyle”. On that note, parents may legitimately question and oppose State
measures, such as marriage, which lionize, role-norm, or subsidize, relationships
based on gay sex (“sodomy” or “nonreproductive sex”), especially considering
fertility, disease, or other issues.
Reagan’s balanced attitude is a positive role model which avoids animus
towards gays; and opposition to gay marriage shows no such animus.
Moreover: the public fisc is affected and drained by gay marriage benefits.
Additionally: sodomy (not gay people themselves) is a comparative vector of
injury and disease, as even AIDS-related organizations admit; so that the State,
while not criminalizing sodomy, may not want to endorse and subsidize relations
based on it, either.
Lawrence v. Texas (539 U.S. 558 (2003)), a charter of freedom, offers
American gays the “negative liberty” of not being arrested; but this does not imply
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the “positive liberty” of receiving the State’s approbation and financial aid, even
after United States v. Windsor (133 S. Ct. 2675 (2013)).
The reasons used to justify mandatory legalized gay marriage are difficult to
distinguish from those used to justify legalizing polygamy. In fact, some
polygamists are seeking help from gay-marriage activists. The Court should
beware the slippery slope that overturning Amendment 3 (2004) would create.
Especially considering all these reasons, Amendment 3 not only passes the
proper standard of review, i.e., rational basis sans animus, but also passes
intermediate or even strict scrutiny. The reasons adduced against mandatory gay
marriage constitute a very compelling state interest, either from any particular
reason, or from all of them agglomerated together.
Therefore, as America’s democratic debate about gay marriage continues, the
Court can trust the People, including Utahns, to make their own decisive,
respectworthy votes on gay marriage.
ARGUMENT
I. UTAH: AN AMAZING VOYAGE FROM POLYGAMY TO GAY
MARRIAGE
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Amicus was somewhat surprised to see that in Utah, of all places, the will of the
People was not respected by the lower court which made mandatory the legality of
gay marriage in that State. Utah is famous as a state that had to give up polygamy;
so it must be galling to many Utahns that now they are forced to honor and
subsidize another untraditional marriage arrangement, gay marriage.
Just because it may be largely conservative, moderate, or religious folk who
comprise Utahns or their supporters, does not mean they cannot draw from the
“toolbox” of cases or ideas that liberals or the nonreligious frequently use. Indeed,
case law has no political party, so Amicus shall try to offer original arguments and
evidence, against mandatory legalized gay marriage in Utah, or in any State.
II. DIVERSE MARRIAGE: THE GOOD OF HETEROSEXUAL,
DIFFERENT-SEX MARRIAGE PARTNERS, IN LIGHT OF GRUTTER
A. Arguments for Diverse Marriage Only
A compelling basis for a State denying endorsement of same-sex marriage is the
importance of diversity. This is true politically in that if every State decides about
gay marriage separately, then likely some States will approve it, and others
disapprove: a diverse array of decisions. Then gay couples can take their pick and
move to a State offering gay marriage, if they wish. See, e.g., the ideas of Charles
Tiebout on “voting with your feet”.
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However, another level of diversity exists re gay marriage. —It is curious that
some advocates who constantly extol the value of racial and gender diversity and
affirmative action, tend to suddenly forget the value of diversity when it comes to
having two parents of different (“diverse”) sex, instead of both of the same sex.
See, e.g., Ballard v. United States, 329 U.S. 187, 193 (1946): “The truth is that the
two sexes are not fungible; a community made up exclusively of one is different
from a community composed of both[.]” Id. (Douglas, J.)
(Amicus has seen the term “gender incest” used about non-diverse, same-sex-
segregated relationships; without endorsing that term, he still recognizes that one
gender can learn a great deal from the other one.)
Without citing from the copious literature showing the benefits of having a
mother and father: common sense tells us that more diversity exists, per se, when a
child can learn from a female parent and a male parent. With two fathers, which
one can breast-feed the child? And with two mothers, a child may have no close
male role model.
On that note, Amicus is pleased that Utah has used, in its January 6, 2014,
Reply In Support of Application to Stay Judgment Pending Appeal, in the Supreme
Court (No. 13A687, re Kitchen v. Herbert), see id. at 15, a “Grutter and diversity”
argument he may have previously invented: see his January 29, 2013 Windsor
amicus brief, “[T]he compelling interest of diversity is served by traditional
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marriage, since a man-woman couple is diverse as no same-sex couple can be[; see
l]andmark affirmative-action case Grutter v. Bollinger, 539 U.S. 306 (2003) [.]” Id.
at 3, 20; and his Hollingsworth v. Perry (133 S. Ct. 2652 (2013)) amicus brief
(1/29/2013), noting “the strong possibility that having diverse, opposite-sex parents
is at least as important as diversity at college.” Id. at 4. In those cases, Amicus did
not overly elaborate on the diversity rationale; but now Utah has adopted it, and he
shall elaborate further.
I.e., Grutter, supra at 2, tells us of the compelling state interest of diversity
served by affirmative action at universities, see id. at, e.g., 325. But that is maybe
only for four years, at a college. By contrast, for the eighteen years of pre-adult
growing up (including the vital, formative first few years of life), for a child to
have diverse, different-sex parenting, could a fortiori be considered a far more
compelling interest. Unless one wishes not to be consistent; and logical
inconsistency, like hypocrisy, tends to cause problems.
4


4
On that note: the following passage, Amicus found on the Internet, and saved the
text, but cannot find it on the Internet any more. However, the passage describes
his own thoughts fairly well, so:
It seems a simple logical inconsistency to claim, on the one hand,
that a gender-diverse environment in an educational setting is so likely
to be beneficial to youth that a state has a compelling or even an
important interest in its existence, and then turn around and claim that
a gender-diverse environment in a home setting has so little relevance
to youth’s well-being that the very idea that it might be beneficial is
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Amicus is obviously not asserting that the Grutter opinion was written in order
to endorse a diversity interest vis-à-vis marriage. As well, Parents Involved in
Community Schools v. Seattle, 127 U.S. 2738 (2007), declined to apply that
particular diversity rationale outside of higher education, see id. at 2754. However,
that does not mean that Utah cannot sensibly argue for that interest. As noted
supra, to play “Emperor’s New Clothes” and pretend that diversity can matter only
when one is attending college for a few years, and at no other time, would risk
being ludicrous, or even bigoted. Cf., e.g., the Nation’s epochal slogan E pluribus
unum (“One out of many”), showing that diversity is a State-endorsed value for all
Americans.
5

As well, even if diversity of marriage partners is somehow not the compelling
interest that it is in Grutter re affirmative action, it is still a substantial state
interest, passing intermediate scrutiny, or at the absolute minimum, a rational state
interest, which would pass the rational basis test.

inherently irrational. One argument or the the [sic] other - the pro-
affirmative action and the gay-rights one -- must be wrong.
Id. So, see id., each State should have at least as great latitude in offering, or
denying, gay marriage, as with affirmative action.
5
Though not to the extent that we have to accept polygamists’ or bigamists’
“diversity”, of course, or the ““diversity”” of old men wanting to marry little girls.
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Of course, some left-of-center readers may be aghast: “You can’t use diversity
and Grutter to oppose mandatory gay marriage!” But why not? By way of
comparison: substantive due process was used in the “conservative victory”
Lochner v. New York (198 U.S. 45 (1905)); but then used after Lochner in order to
support Roe v. Wade (410 U.S. 113 (1973)): a “liberal victory”. So, then, why
should the diversity rationale from Grutter, often considered a “leftward” victory
(affirmative action), not be used to support a more “rightward” cause like
preventing mandatory gay marriage? America has a right of reliance on the
diversity rationale, regardless of what Democrats, or Republicans, think.
In fact, it is a far smaller leap to use Grutter’s diversity rationale to preclude
mandatory gay marriage, than the lower court’s huge and unjustified leap in
claiming that marriage is a fundamental right even for gay marriages. The
Founding Fathers would have been astounded, if someone told them that the right
to marry also extended to same-sex partners. By contrast, Grutter deals with
education, and parents have long been considered über-educators of a sort under
our case law. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925), noting “the
liberty of parents and guardians to direct the upbringing and education of children
under their control”, id. at 534-35, and noting that parents of a child are “those who
nurture him and direct his destiny”, id. at 535 (McReynolds, J.); Meyer v.
Nebraska, 262 U.S. 390 (1923), mentioning “the power of parents to control the
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education of their own”, id. at 401 (McReynolds, J.). Thus, it is not a great leap to
apply the Grutter diversity rationale to parentage and marriage as well.
(Amicus is tempted to quip that he may accept the lower court’s assertion that
gays have a fundamental right to marriage, as long as that court accepts that
diverse-gender-only marriage is a narrowly-tailored, least-restrictive-means,
compelling state interest, so that Utah may refuse recognition of gay marriage.)
Amicus is not asserting that it is per se “harmful” for children to have gay
parents. Some gay parents may do a fine job—a better job even than some abusive
heterosexual parents might do—, just as some parents in polygamous relationships
may do a fine job. However, a State should be allowed to find that diverse-gender
parents have an extra something, a plus factor, that allows diverse-gender parents
the right to marriage (or rather, the continuance of that very ancient right), whereas
others are not entitled to demand a new right, gay marriage, out of nowhere. See
once more Ballard, supra: “[T]he two sexes are not fungible: a community made
up exclusively of one is different from a community composed of both[.]” 329
U.S. 193.
Part of the diversity rationale that States may adopt per Grutter, after all, is, see
id. passim,
1) a bonus for diversity
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2) that allows exclusion of others.
Thus, a State is permitted to use diversity to give a bonus in university
admissions to members of some groups (e.g., racial minorities), even if that bonus
lets certain others be excluded (e.g., white males who do not get into college
because they don’t get affirmative-action bonus points). Thus, similarly, a diversity
interest in marriage should allow a “bonus” for diverse-gender people, even if
same-sex people are excluded from the marriage.
B. Counterarguments Refuted
Amicus anticipates strident counterarguments, so here are some sample (and
bad) counterarguments against using Grutter and diversity versus mandatory gay
marriage; plus refutations:
a. “Then why couldn’t Utah make it a compelling state interest for whites to marry
blacks? or some other interracial marriage? to promote diversity??” First, that
would be unadministrable; there are so many different races and interracial
mixtures, that it would be impossible to assign people. (E.g., should a white person
have to marry a black one…or instead, a Malaysian…or an Arab…etc.?) By
contrast, vis-à-vis gender, there are only two sexes; and the “administrability” of
the arrangement, a female/male marriage, is shown by its having been the standard
arrangement worldwide for thousands of years. Finally, assigning marriage by race
would cause unconquerable public outcry, for good reason.
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b. “But having only heterosexual, two-person marriages prevents a more diverse
array of marriages.” That is technically true; just as not having polygamy,
underage marriages, parent-child marriage, etc., removes a certain degree of
“diversity” in marriage choices. But that is not sufficient reason to allow polygamy
or other strange arrangements. And again, every same-sex marriage denies children
the benefits of gender-diverse parenting. The proper focus of diversity here is
within each marriage. (Not on maximizing the possible kinds of marriage.)
(If it were argued, “Gays are a minority, so diversity should be used to give that
minority bonus points, i.e., gay marriage”: the problem is that others could make
the same argument. Polygamists, for example, are a sexual ““minority”” too.)
c. “The affirmative action permitted in Grutter is supposed to last only a few
decades; whereas same-sex marriage in Utah may be banned forever.” But
affirmative action is an extraordinary response to our present-day problems, a
response that uses the traditionally-odious method of race preferences as an
allowed temporary violation, until c. 2028, of the American default rule of no such
preferences.
6
By contrast, the “default rule” for marriages has always been
heterosexual marriage; it is gay marriage that refuses to follow that rule.

6
Perhaps any gender preferences in higher education are also not supposed to be
used any more in a few decades; but, seeing that women may now be the majority
in colleges, gender preferences there may be basically inert anyway. By contrast,
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13

d. “Affirmative action does not ban all white males from college, but a ban on gay
marriage keeps out all same-sex partners.” Maybe so; but a marriage has only two
people, unlike college, which has many people. So, by the way marriage works, the
exclusion keeps out a same-sex partner, to make place for an opposite-sex partner,
giving any children the wonderful benefit of a gender-diverse parentage.
This also deals with any “quota” counterargument. Diverse marriage should not
be viewed as a “quota” of one of each sex; because only two people are in a
marriage, having a same-sex marriage would itself create a de facto “quota” or
rigid arrangement of two men or two women, with zero gender diversity, and sex-
segregated parentage for children.
e. “Diversity was meant to include underrepresented people.” In a two-person
marriage, if there are two same-sex partners, then, by definition, the opposite sex is
underrepresented. A diversity bonus for gender would preclude that.
f. “There’s not an individualized assessment of candidates as in Grutter; your
gender is the only factor considered.” No; even if having an opposite-sex marriage
is a requirement, there are many other requirements too, e.g., not being parent and
child, not having more than two people in the marriage, not being underage, etc. So

gender-diverse two-person marriage will always need a “preference” for one
female, one male, in the marriage, to exist as the official norm.
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having a certain gender is not sufficient to let you marry, and would-be marrieds
are individually assessed for other characteristics.
As well, an “individualized analysis” which let only some gay people marry, if
a state “marriage board” were scoring everyone on points à la university-
admissions procedures (!!!), and those gays’ exceptional qualities outweighed any
“bonus points” that heterosexuals get: would really anger people and risk violating
equal protection, in a way that a simple flat ban on same-sex marriage should not.
Finally, in college admissions, there is competition among a large pool of
candidates to be admitted to a large student body. By contrast, marriage is a
cooperative arrangement, with a mere two people. And as noted supra, biology’s
realities make gender an appropriate factor in marriage: can a gay male couple
breast-feed their child? Never: no more than one of those male partners can get the
other one pregnant. Physical realities, and impossibilities, cannot be ignored.
“The Constitution does not require things which are different in fact or opinion
to be treated in law as though they were the same.” Tigner v. Texas, 310 U. S. 141,
147 (1940) (Frankfurter, J.).
In all, despite any attempted counterarguments, the diversity rationale stands as
a huge barrier against those who might claim a preference for gender-diverse
marriage is irrational.
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If anyone is still not convinced that diversity of gender in marriage can be a
rational (substantial, compelling) interest: the problem is that the federal
Government is now endorsing that view itself, the need for gender diversity. We
view the evidence infra.
III. THE FEDERAL GOVERNMENT PRESENTLY ENDORSES GENDER-
DIVERSE MARRIAGE AS OPTIMAL
Although U.S. Attorney General Eric Holder has recently, and controversially,
recognized Utah gay marriages, official material currently promoted by the
Government contradicts Holder’s stance that a same-sex marriage is as good as any
other. This does not inspire confidence in the authenticity of the Government’s
stance, or in the credibility of those claiming there is no rational debate about
whether gay, gender-non-diverse married parents serve children as well as
heterosexual married parents.
After all, the Government is the top secular authority in the Nation. Cf., e.g., the
Supremacy Clause.
7
Its words may mean something.
Here are some claims the Government presently makes on the Internet: U.S.
Department of Health and Human Services (“HHS”), Promoting Responsible
Fatherhood—Effective Parenting (last revised July 25, 2011),
8


7
U.S. Const. art. VI, cl. 2.
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Committed and responsible fathering during infancy and early
childhood contributes emotional security, curiosity, and math and
verbal skills.
Positive Influence
Children who live with their biological fathers are, on average, at
least two to three times more likely not to be poor, less likely to use
drugs, less likely to experience educational, health, emotional and
behavioral problems, less likely to be victims of child abuse, and less
likely to engage in criminal behavior than their peers who live without
their married, biological (or adoptive) parents. . . .
Id.; HHS, National Responsible Fatherhood Clearinghouse, The President’s
Fatherhood Pledge (undated),
9

Fatherlessness is a growing crisis in America, one that undergirds
many of the challenges that families are facing. When dads aren’t
around, young people are more likely to drop out of school, use drugs,
be involved in the criminal justice system, and become young parents
themselves.
President Obama grew up without his dad, and has said that being
a father is the most important job he has. . . .
Id.; HHS, Promoting Responsible Fatherhood—Healthy Marriage (last revised
July 21, 2011),
10
featuring a photograph of a male/female couple and their two
children, id., and saying, “There are at least two characteristics that all healthy
marriages have in common. First, they are mutually enriching, and second, both
spouses have a deep respect for each other. It is a mutually satisfying relationship
that is beneficial to the husband, wife, and children (if present). . . .” Id. (emphasis

8
http://fatherhood.hhs.gov/Parenting/index.shtml.
9
http://www.fatherhood.gov/pledge.
10
http://fatherhood.hhs.gov/Marriage/index.shtml.
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added); HHS, National Responsible Fatherhood Clearinghouse, Strong Families/
Healthy Relationships (undated),
11

A healthy marriage is a mutually satisfying relationship that is
beneficial to the husband, wife and children (if present) and is a
relationship that is committed to ongoing growth, the use of effective
communication skills and the use of successful conflict management
skills. . . .
Id. (emphasis added); and HHS, Promoting Responsible Fatherhood—Promoting
Responsible Fatherhood Home Page (last revised July 21, 2011),
12

Effective Parenting
Involved fathers provide practical support in raising children and
serve as models for their development. Children with involved, loving
fathers are significantly more likely to do well in school, have healthy
self-esteem, exhibit empathy and pro-social behavior compared to
children who have uninvolved fathers. . . .
Id. (emphasis added).
Thus, the Government cedes, see sources supra, that fathers are needed; which
in turn cedes that at least half of same-sex marriages do not offer that necessary
role-modeling (and by extension, all same-sex marriages, unless we think mothers
are not needed), since same-sex marriages do not have a mother and a father. It
does not demean lesbians to say they cannot provide this fathering influence, any

11
http://www.fatherhood.gov/for-programs/for-your-fathers/strong-families-
healthy-relationships.
12
http://www.fatherhood.hhs.gov/.
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more than it demeans white males to say that the diversity needs of affirmative
action may exclude some of them from college.
One wonders whether, now that these words are written, some of those
webpages may be “updated” by the Government in short order. (One has paper
printouts or computer “screen shots” of them, though.) But any “updates” cannot
hide that during this litigation, the Government itself has in multiple places
declared that one sex, male, is needed as a parent. (And “needed” may be
synonymous with “compelling”, as in “compelling state interest”.) Thus, the
Government, and to an extent anyone in this country, is effectively estopped from
maintaining that there is no legitimate debate about the positive value of opposite-
sex parenting for children, versus same-sex parenting.
There may be other federal publications or positions at present, which praise (or
dispraise) gay marriage. However, that does not let us blindly ignore all the
Government publications supra which praise gender-diverse, traditional marriage.
(Once more, e.g., “Involved fathers provide practical support in raising children
and serve as models for their development.” Promoting Responsible Fatherhood
Home Page, supra (emphasis added); “Children who live with their biological
fathers are, on average, at least two to three times more likely not to be poor,
[etc.]”, Effective Parenting, supra.) Those federal publications chime with the will
of Utah voters, which this Court should uphold.
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IV. THE COURAGE OF RONALD REAGAN IN OPPOSING THE BRIGGS
INITIATIVE; AND HIS SAGACITY IN RECOGNIZING THE STATE
NEED NOT LAUD ALL GAY LIFE CHOICES
Speaking of the Government: one former head of it, Ronald Reagan, showed
courage and decency in opposing the Briggs Initiative, a 1978 California ballot
measure banning gay teachers from teaching at public schools, see id. This
noisome measure was defeated, partly because of Reagan; see, e.g., Dan
Chmielewski, Ronald Reagan on Gay Rights, Liberal OC, June 9, 2008,
13

Reagan met with initiative opponents, studied their material and,
ultimately, at the risk of offending his anti-gay supporters in the
coming presidential election, wrote in his newspaper column: “I don’t
approve of teaching a so-called gay life style in our schools, but there
is already adequate legal machinery to deal with such problems if and
when they arise.”
Id.
However, Reagan was not thereby endorsing homosexuality. In fact, he said
explicitly, “I don’t approve of teaching a so-called gay life style[.]” Id. And when a
State declares that a union of gay couples deserves the honor of marriage, that
teaches, inter alia, that the sexual lifestyle which is the physical base of gay
marriage is just as good as a heterosexual lifestyle. See Olmstead v. United States,
277 U.S. 438, 485 (1928): “Our government is the potent, the omnipresent
teacher.” (Brandeis, J., dissenting from the judgment)

13
http://www.theliberaloc.com/2008/06/09/ronald-reagan-on-gay-rights/.
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Thus, just because parents wonder if a gay lifestyle is best for their child, in
terms of fertility, disease, or other factors, that does not make them “bigots” or
“warped by animus”. Parents may legitimately refuse to support State measures
which seem to lionize nonreproductive-sex-based relationships as socially honored,
and which financially subsidize such relationships.
So Reagan, a governor of the Golden State, found a golden mean which can
guide courts still today. Tolerance is one thing, endorsement another.
If any court wants to de facto call Reagan, and concerned parents, ignorant
bigots, by mandating gay marriage—Amicus must respectfully disagree.
V. GAY MARRIAGE AND THE PUBLIC FISC
Another reason not to endorse mandatory gay marriage is that gay marriage
may notably impact the fisc. If something is honored as a “marriage” but can never
produce posterity, that “marriage” may be spending public goodwill and resources
on a non-productive relationship. If the People consider it wasteful, they are not
obliged to adopt it.
If it allegedly hurts a gay couple not to receive tax or other benefits from
marriage, then how would it not hurt a heterosexual couple to be deprived of those
same benefits, or a portion of them, since the gay couple is partially draining the
public fisc? a fisc with finite resources.
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How could it be irrational for, say, a poor, minority, heterosexual mother of five
to decide that giving gay couples, many of whom may be white and wealthy, an
additional tax break, is not right? Is she a bigot just because she doesn’t think the
public fisc should be used that way? See, e.g., Holly, How dare you mistrust our
rich white gay men? Feministe, Jan. 4, 2008:
14
“Everyone KNOWS the HRC
[Human Rights Campaign] is beholden to affluent, mostly-white gay folks; they
provide the money, they influence the agenda.” Id.
Thus, fiscal impact provides a rational, or even substantial, basis not to extend
marriage to gay couples.
VI. NONREPRODUCTIVE SEX AS CANCER, AIDS, AND INJURY
VECTOR
Another reason to disallow gay marriage, though an unpleasant one that
demands detached consideration, is that to subsidize relations based on sodomy
may increase their number, or at least show de facto government endorsement of
such practices, although they are a risk factor for disease, injury, or death. E.g.,
[A]nal sex is considered a high-risk sexual practice because of the
vulnerability of the anus and rectum. The anal and rectal tissues are
delicate and do not provide natural lubrication, so they can easily tear
and permit disease transmission[;] and the risk of transmission of HIV
is higher for anal intercourse than for vaginal intercourse.

14
http://www.feministe.us/blog/archives/2008/01/04/telling-it-like-it-is/.
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22

Wikipedia, Anal sex
15
(citations, including internal, omitted).
There are other deadly problems with sodomy besides HIV/AIDS, such as
cancer. See, e.g., Matt Sloane, Fewer teens having oral sex, CDC says, CNN,
KSBW.com, Aug. 17, 2012, updated 8:34 a.m.,
16
“It’s widely accepted that there is
an increased number of head and neck cancers today due to changes in sexual
practices in the ‘60s, ‘70s and ‘80s,” -- specifically, an increase in oral sex, said
Dr. Otis Brawley, the chief medical officer of the American Cancer Society.” Id.
Disease-transmission aside, sodomy can also cause physical injury, since it
includes practices like “fisting”, i.e., putting a fist—or two—, into the birth canal
(or elsewhere), since women lack certain anatomy males have that could substitute
for a fist. See, e.g., Nat’l Ctr. for Biotech. Info., U.S. Nat’l Libr. of Med., Nat’l
Insts. of Health, Vaginal “fisting” as a cause of death., PubMed.gov (undated)
17

(young woman dies from vaginal fisting) (citation omitted).
Amicus is not claiming gays themselves are a disease vector (though he was
once falsely accused of that), although an AIDS group like Gay Men’s Health
Crisis (“GMHC”), by its very name, risks associating AIDS with gays far beyond

15
http://en.wikipedia.org/wiki/Anal_sex (as of Feb. 7, 2014, at 16:41 GMT).
16
http://www.ksbw.com/news/health/Fewer-teens-having-oral-sex-CDC-says/-
/2024/16166548/-/38nxasz/-/index.html.
17
http://www.ncbi.nlm.nih.gov/pubmed/2929548.
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anything Amicus has ever said. And their logo, “GMHC—FIGHT AIDS. LOVE
LIFE”,
18
id., explicitly references AIDS.
GMHC has done some good work in informing the public about issues related
to AIDS and nonreproductive sex. See, e.g., their colorfully-illustrated webpage,
The Bottom Line on Rectal Microbicide Research (undated, but concerning a Jan.
23, 2013 presentation),
19
“Unprotected anal intercourse is 10 to 20 times more
likely to result in HIV infection compared to unprotected vaginal intercourse.
Unprotected anal intercourse—a common human behavior—is a significant driver
in the global HIV epidemic among gay men and transgender women as well as
among heterosexuals.” Id. This proves exactly what Amicus said, supra at 3, that
“sodomy is a comparative vector of injury and disease”.
Thus, while under Lawrence, a State cannot outlaw consensual adult sodomy,
see id., it is not obliged to endorse or subsidize an activity, gay marriage, whose
physical base is nonreproductive sex. Unless the opposition can prove that the vast
majority of gay couples are going to live in total chastity, a State has a rational, or
even compelling, basis in not raising to the status of marriage a form of life based
in the inherently risky behaviors noted supra.

18
http://www.gmhc.org/.
19
http://www.gmhc.org/news-and-events/events-calendar/the-bottom-line-on-
rectal-microbicide-research.
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If some would ignore the statistics above, Amicus can do nothing; but justice
will suffer, and, frankly, those injured or killed by certain practices may suffer
even more. See, e.g., Fewer teens having oral sex, supra (experienced physician
establishes sodomy as cancer vector). Utahns’ health is a very compelling matter.
VII. “LAWRENCE AND NO FURTHER”; OR, NEGATIVE LIBERTY,
POSITIVE LIBERTY, AND “STATE-SUBSIDIZED SODOMY”
So, while Lawrence rightfully preserves for gays (or other practicers of
nonreproductive sex) the “negative” liberty, as Isaiah Berlin might put it, of
freedom from Nazi-style arrest and harassment; it is up to the People or their
representatives to grant, or not, the “positive liberty” of an entitlement or subsidy
for gay marriage. And seeing that some may feel gay marriage borders on being
state-subsidized sodomy, perhaps all the People aren’t really up for that at this
point. (The laws of dozens of States against gay marriage help confirm this.) Thus,
the States are obliged to go no, or little, further than Lawrence and its protections.
(Inter alia, please note that Amicus has given no moralistic or Biblical reasons
against mandatory gay marriage. A thinking atheist could endorse every reason
herein, e.g., a compelling diversity interest, desire to preserve the fisc, etc.)
And Windsor does not change this: “DOMA singles out a class of persons . . . .
by refusing to acknowledge a status the State finds to be dignified and proper.” Id.
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at 2695-96 (Kennedy, J.). Justice Anthony Kennedy essentially makes a
federalism-tinged reliance argument here, see id., saying that the federal
Government must follow what a sovereign State has already decided. But the lower
court’s decision in the instant case bootstraps that idea, and lets the judge himself
make the decision for the State, instead of the State deciding. This must not be.
Justice Antonin Scalia might disagree, seeing his dissent in Lawrence, saying
that according to the majority opinion, “[W]hat justification could there possibly
be for denying the benefits of marriage to homosexual couples exercising the
liberty protected by the Constitution[?]” 539 U.S. at 605 (some internal quotations
omitted; some brackets not in original). But Amicus has given plenty of
justifications herein, pace Scalia’s opinion supra.
VIII. MANY ARGUMENTS FOR MANDATORY GAY MARRIAGE
WOULD ALSO APPLY TO POLYGAMY, FORBIDDEN IN UTAH
And there are few arguments for gay marriage that could not be made for
polygamy. For example, some say that children may feel humiliated when their
gay parents are not allowed to marry. But why could polygamists’ children (and
polygamists may have many children) not make the same argument?
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See, e.g., Patricia, Our America with Lisa Ling – “Modern Polygamy” a New
Perspective on an Old Taboo, The Daily OWN, Oct. 24, 2011,
20
“Lisa [Ling] also
introduced a group of all women who were meeting with a gay activist for training.
They were determined to fight for their rights and lifestyle. . . . They claim to want
the ability to have their children not feel like second class citizens.” Id. So,
polygamists are actually training with gay-rights activists, see id., and using
“rights” or “protecting our children from animus” arguments to try to legalize
polygamy. Sauce for the goose may cover the gander too.
Too, polygamists have undoubtedly been “persecuted” (or least ostracized)
in America for their orientation; they may lack political power; they may be able to
do various jobs as well as anyone else; and they may, as a distinguishing
characteristic, feel an “immutable” desire for multiple partners, just as some gays
may claim to feel one for a same-sex partner. So why play favorites here and not
use a heightened-scrutiny standard to “liberate” polygamists, under the Equal
Protection Clause?
Some may claim that polygamy is inherently dangerous and unequal in a way
that a pair of married gay people is not. However, what if, say, there were an
isogamous multipair marriage (“IMM”), “isogamous” roughly from the Greek,

20
http://www.thedailyown.com/our-america-with-lisa-ling-modern-polygamy-a-
new-perspective-on-an-old-taboo.
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“iso” (“equal”) plus “gamous” (“marriage”), which had an even number of
partners, both in total and in balance of female and male? E.g., a tetrad of two men
marrying two women in group marriage: an “intimate quadrilateral”. There could
be an upper bound set by a State, e.g., ten people (five pairs) would be too many.
But “equality” would reign, and gender balance. What “open-minded” person,
then, could complain about an “IMM”?
Utah agreed to abandon polygamy in order to join the Union; but, in this day of
bizarre changes, maybe a federal court could find that agreement itself to violate
the Constitution. In fact, on the lower court’s rationale, perhaps it does violate the
Constitution and should be scrapped immediately.
See, e.g., Richard A. Epstein, Judicial Offensive Against Defense Of Marriage
Act, The Libertarian, Forbes.com, July 12, 2010, 1:28 p.m.
21
(saying marriage
licenses must be extended to both polygamists and gays); Hilary White, Group
marriage is next, admits Dutch ‘father’ of gay ‘marriage’, LifeSiteNews, Mar. 12,
2013, 4:58 p.m.: “Boris Dittrich, the homosexual activist called the ‘father’ of . . .

21
http://www.forbes.com/2010/07/12/gay-marriage-massachusetts-supreme-court-
opinions-columnists-richard-a-epstein.html.
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Dutch gay ‘marriage’, has admitted that group marriages of three or more people,
is the next, inevitable logical step[.]”
22
Id.
IX. RATIONAL BASIS SANS ANIMUS IS THE RIGHT LEVEL OF
SCRUTINY, THOUGH AMENDMENT 3 MAY PASS HIGHER LEVELS AS
WELL; AND THE REASONS ADDUCED HERE COMPRISE A VERY
COMPELLING STATE INTEREST
Any rational basis should be enough to prevent legalized polygamy, or gay
marriage. As in Romer v. Evans, 517 U.S. 620 (1996), rational basis “with a bite”
(disallowing animus), see id. passim, is the correct level of scrutiny. Since gays are
not a “protected group”, i.e., a racial or religious group, rational basis sans animus
is appropriate.
This is especially so since gays are less “oppressed” than they used to be. Since
Romer, there has been Lawrence, most notably. Also, gays are now free to serve
openly in the armed forces. So, since gays are actually in better shape than
formerly, why should “rational basis” be dropped in favor of heightened scrutiny?
But even if heightened scrutiny were somehow necessary, the various bases
adduced supra, either singly or when added together, form a very compelling

22
http://www.lifesitenews.com/news/group-marriage-is-next-admits-dutch-father-
of-gay-marriage.
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government interest or interests, with the non-endorsement of gay marriage at least
substantially related to those interests. E.g., not giving tax or bankruptcy breaks to
gay couples is seriously related to the public fisc.
In fact, even strict scrutiny is met. E.g., the interest in gender diversity of
parents seems at least compelling as racial or gender diversity at colleges; and this
compelling interest is met in practically as narrowly tailored a manner as can be.
People are not arrested for not entering opposite-sex marriages, or harassed by
State billboards or mandatory “get married” classes into entering them; rather,
people are just not actively subsidized and lionized by government for entering
another type of marriage, same-sex marriage.
The reasonably least restrictive means are used as well. For example, re the
diverse-gender role models in heterosexual marriage, would it really be less
restrictive to have the Government provide gay male married couples a visiting
female breast-feeder and role model for children? or give lesbian couples a “rent-a-
man” as a male role model for children? Probably not.
Similarly, with the disease- and injury-risking practice of nonreproductive
sex—and reduction of AIDS and cancer seems a compelling national interest—,
Lawrence prohibits punishing sodomy, so how can sodomy be not encouraged?
By…being not encouraged, which is what the non-availability of official gay
marriage does: since no State “merit badge” or financial benefit, no reward, is
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30

given to gay marriage, which is a marriage physically centered on nonreproductive
sex, since it is biologically impossible for the spouses to have other kinds of sex.
(People are legally free to engage in nonreproductive sex in private all they want,
or marry at any church or synagogue which marries gays.)
This is arguably even more narrowly tailored than government-funded “safe
sex” classes which actively mention the danger of practices like anal intercourse.
Also, a law mandating that gay couples use rubber prophylactics might seem
intrusive and insulting. By contrast, the lack of gay marriage doesn’t even mention
anything, or do anything; it is just a gap, a lack of State approval and reward.
X. GENEROUS ALTERNATIVES TO COURT-ORDERED LEGAL GAY
MARRIAGE
While the Court is not obliged to force Utah to grant any benefits to gay couples
whatsoever, the Court may, for all one knows, feel obliged to grant something.
Then, here, in ascending order of desirability, are alternatives to gay marriage:
1. Mandatory legality of civil unions, with much or all of the benefits of marriage,
but sans the name “marriage”.
2. The same as in 1, supra, but as “domestic partnerships” instead.
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3. Mandatory bundle of rights or entitlements, e.g., hospital visitation, funding,
etc., but sans the name “marriage”, “civil union”, or “domestic partnership”, and
comprising no official union/partnership recognized by the State. It could be called
a “Reciprocal Benefits Contract” or such.
4. Mandatory à la carte rights or entitlements, e.g., hospital visitation, or any other
particular measure, which might be considered putatively inhumane to deny.
The least undesirable level would be level 4, supra, since it is the least intrusive
on Utahns’ will. But Amicus is not recommending the Court impose any of the
levels above upon Utah. Utah’s people have already decided.
* * *
Amicus has always opposed the proposed federal marriage amendment that
would prevent states from deciding about gay marriage. A few years ago, this
might have made him a “heroic defender of gay rights”, to some. Nowadays, for
having the exact same stance, that each State can decide about gay marriage on its
own, he and most Utahns might be called “homophobic bigots disrespecting gays’
fundamental right to marry”. This does not seem fair.
As noted here passim, there is a gray area of ongoing debate and respectful (one
hopes) disagreement about same-sex marriage. Even the Government cannot
decide completely, saying at present that a mother and father are needed, at the
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same time other Government organs claim otherwise. If even the Government is
confused and divided on this, how can it be unconstitutional to let a State’s People
vote on how to treat this gray area of gay marriage? “When the subject lies within
the police power of the state, debatable questions as to reasonableness are not for
the courts, but for the legislature[.]” Sproles v. Binford, 286 U.S. 374, 388 (1932)
(Hughes, C.J.).
Finally: Utah is not Uganda. Amendment 3 does not criminalize gay behavior, it
just follows the lead of most States, by not extending the time-honored status of
marriage to same-sex, gender-non-diverse couples. To demean Utahns’
fundamental right to vote, by taking gay marriage off the table as something they
can effectively weigh in on, is far more violative, of both precedent and justice,
than not allowing gay marriage.
CONCLUSION
Amicus respectfully asks the Court to reverse the judgment of the court below;
and humbly thanks the Court for its time and consideration.
February 10, 2014 Respectfully submitted,
s/David Boyle
P.O. Box 15143
Long Beach, CA 90815
(734) 904-6132
dbo@boyleslaw.org
Pro se Counsel for Amicus Curiae David Boyle

Appellate Case: 13-4178 Document: 01019200470 Date Filed: 02/10/2014 Page: 42

33

CERTIFICATE OF COMPLIANCE AND WORD COUNT
The undersigned certifies that the accompanying Brief of Amicus Curiae David
Boyle Supporting Appellants and Supporting Reversal, in 13-4178, is in 14-point,
proportionately-spaced Times New Roman font; and that its length, exclusive of
“exempt” sections including the table of contents and table of authorities/citations,
etc., is 7000 words, since his Microsoft Word 2010 word-processing program
states the word count is 7000 words.
s/David Boyle

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY
REDACTIONS
The undersigned certifies that
1. all required privacy redactions have been made, if any were in fact required;
2. hard copies of the Brief of Amicus Curiae David Boyle Supporting Appellants
and Supporting Reversal, in 13-4178, are exact copies of the brief as submitted
electronically; and
3. the electronic submission was scanned by a McAfee Anti-Virus and Anti-
Spyware Program, version 16.8, updated earlier today, and, per that program, is
virus-free.
s/David Boyle



Appellate Case: 13-4178 Document: 01019200470 Date Filed: 02/10/2014 Page: 43

34

CERTIFICATE OF SERVICE

The undersigned certifies that he electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by
using the appellate CM/ECF system on February 10, 2014.
He also certifies that all parties or their counsel of record, and any amici curiae
listed as present in the case, were served through the CM/ECF system if they are
registered CM/ECF users. The parties’ counsel:
Philip S. Lott phillott@utah.gov
Stanford E. Purser spurser@utah.gov
Gene C. Schaerr gschaerr@gmail.com
Assistant Utah Attorneys General
160 East 300 South
Salt Lake City, Utah 84114-0856
John J. Bursch jbursch@wnj.com
Warner Norcross & Judd LLP
111 Lyon Street, NW. Ste. 900
Grand Rapids, Michigan 49503
Monte N. Stewart stewart@stm-law.com
Stewart Taylor & Morris PLLC
12550 W. Explorer Dr., Ste. 100
Boise, Idaho 83713
David C. Codell dcodell@nclrights.org
Kathryn Kendell kkendell@nclrights.org
Shannon Price Minter SMinter@nclrights.org
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, California 94102-0000
James E. Magleby magleby@mgpclaw.com
Jennifer Fraser Parrish parrish@mgpclaw.com
Appellate Case: 13-4178 Document: 01019200470 Date Filed: 02/10/2014 Page: 44

35

Peggy Ann Tomsic tomsic@mgpclaw.com
Magleby & Greenwood
170 South Main Street, Suite 850
Salt Lake City, Utah 84101
Ralph E. Chamness rchamness@slco.org
Darcy Marie Goddard dgoddard@slco.org
Salt Lake County District Attorneys
2001 South State Street, S-3700
Salt Lake City, Utah 84190-0000


Thank you for your time,
February 10, 2014 Respectfully submitted,
s/David Boyle
P.O. Box 15143
Long Beach, CA 90815
(734) 904-6132
dbo@boyleslaw.org
Pro se Counsel for Amicus Curiae David Boyle

Appellate Case: 13-4178 Document: 01019200470 Date Filed: 02/10/2014 Page: 45
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Entry of Appearance and Certificate of Interested Parties
Case No.
INSTRUCTIONS: COUNSEL FOR A PARTY MUST FORTHWITH EXECUTE AND FILE THIS FORM.,
INDICATING METHOD(S) OF SERVICE ON ALL OTHER PARTIES. MULTIPLE COUNSEL APPEARING FOR
A PARTY OR PARTIES AND WHO SHARE THE SAME MAILING ADDRESS MAY ENTER THEIR
APPEARANCES ON THE SAME FORM BY EACH SIGNING INDIVIDUALLY.
Furtllcr, in accordance with lOth Cir. R. 46.1, the undersigned ccrtify(ies) as follows: (Check one.)
Name of Counsel
Signature of Counsel
P,o
0
B

  I c+) '\O 'f- {; n L
E-Mail Address boy {e'][Q.w. 0 f'J E-Mail Address ___________ _
Appellate Case: 13-4178 Document: 01019200471 Date Filed: 02/10/2014 Page: 1

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