Duane Morley Cox, Pro Se

4056 West 3830 South
West Valley City, Utah 84120
Ph: 801-755-3578
UNITED STATES COURT OF APPEALS, TENTH CIRCUIT
DEREK KITCHEN et. al.
Plaintiffs and Appellee's
v.
GARY R. HERBERT et. al.
Defendants and Appellants
MOTION FOR LEAVE TO
I PARTICIPATE IN ORAL ARGUMENTS
I IN SUPPORT OF UTAH'S
CONSTITUTIONAL
AMENDMENT NO. 3
Case: 13-4178 (UTAH)
NOW COMES: Duane Morley Cox, as Amicus Curiae, pursuant to Fed. R. App. P.
Rule 29(g), asking permission of the Court to participate in Oral Arguments.
PARTICIPATION OF AMICUS CURIAE IS DESIRABLE:
The State of Utah is disadvantaged with respect to arguments pertaining to the
religious impacts of the decision of the Court below on the Constitutionally Protected
rights of religions and their membership. On the one hand, the States are mandated to
protect 1st Amendment rights pursuant to the 14th Amendment whenever they pass
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Docket Reference Number: [10159478]
legislation.
"The Free Exercise Clause of the First Amendment, which has been applied to the
States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S.
296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), provides that Congress shall
make no law respecting the establishment of religion, or prohibiting the free
exercise thereof ... " Church of The Lukumi Babalu Aye v. City of Hialeah, 113
S.Ct. 2217, 2225 (1993) [internal quotations omitted]
But cannot regulate conduct for religious reasons.
"At a minimum, the protections of the Free Exercise Clause pertain if the law at
issue ... regulates or prohibits conduct because it is undertaken for religious
reasons. See. E.g. Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality
opinion); Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953)'' Church of The
Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217,2226 (1993)
This creates a "catch 22" for all legislative bodies when crafting legislation as well
as when defending that which has been enacted. Which "Catch-22" operates to preclude
any discussion of "Religious" burdens that same-sex marriages will place on religious
institutions, a task made even more difficult because the State recognizes that there are
over 25 different faith communities in Utah. Utah Reply Brief, Pg 10, Footnote 2
But same-sex Plaintiffs argue their quest has no impact on others:
"Plaintiffs claim (at 69) that the state has offered no legal factual, or logical reason
to believe that permitting same-sex couples to marry will affect attitudes, beliefs,
or conduct of other couples, or of society at large toward marriage and parenting"
Utah Reply Brief, Pg 14
Which the Court below echoed their sentiment in its sua sponte discussion of
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religious impacts:
"Although the State did not directly present an argument based upon religious
freedom, the court notes that its decision does not mandate any change for
religious institutions, which may continue to express their own moral viewpoints
and define their own traditions about marriage." Decision, pg 49
But these contentions are absolutely false to the point of being absurd, prompting
Amicus to rebut on five grounds in his Amicus Brief in hopes of elevating the religious
impacts upon himself and others of similar religious belief to the point that they were
vigorously debated by Plaintiffs and the State of Utah.
"Sound judicial decision making requires 'both a vigorous prosecution and a
vigorous defense' ... (citations omitted), and a constitutional rule announced sua
sponte is entitled to less deference than one addressed on full briefing and
argument (citations omitted)." Church of The Lukumi Babalu Aye v. City of
Hialeah, 113 S.Ct. 2217, 2247 (1993)
Unfortunately, in the opinion of Amicus, that elevation did not occur although the
State of Utah did recognize in their Reply Brief (RB) the decision of the Catholic
Charities of Boston to terminate adoptions (RB, pgs 41 & 43) and the lawsuit against a
wedding photographer by a same-sex couple for refusal to photograph their same sex
ceremony (RB, Pg 42) which were also cited by Petitioner. And the State of Utah did
touch on the 1 0
1
h Amendment issue raised by Amicus (RB, pg 99), but on other grounds.
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But no argument has been made regarding the undisputable fact that the Decision
by the Court below will have the effect of creating a "Religious Test" in violation of
Article VI of the Constitution which precludes Amicus (and perhaps millions of other
citizens) from seeking or holding office. Cox Brief, Pgs 14-15 [with citation to three
Clerks of deep religious conviction who resigned from elected/appointed positions or who
were sued because they had religious objection to issuing marriage licenses or performing
ceremonies for same-sex couples.]
And no vigorous argument has been given to the consequence of the decision of
the Court below to void all statutory protections which have been put in place by New
York, New Jersey, Utah and other states to avoid the type of lawsuit filed by two lesbian
couples in New Jersey to compel the Methodist based Ocean Grove Camp Meeting
Association to allow them to have their same-sex services held Ocean Grove property
against the religious beliefs of the Methodist Faith Cox Amicus Brief, Pg 8-9. Where
the decision ofthe Court below will invalidate all of these protective statutes at the city,
county and State level because a Constitutional privilege cannot be negated by any State
legislative or constitutional action as clearly delineated by Article VI of the U.S.
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Constitution.
GROUNDS FOR HEARING ORAL ARGUMENTS ON RELIGIOUS ISSUES:
Justice Sotomayor has issued her stay and forced this Court to hear arguments so
that if and when this issue reaches the Supreme Court it will have been fully briefed and
argued. Amicus Cox argues that the issue of Religious impacts has not yet been fully
briefed and argued. While the lOth Cir. R. 34.l(F) declares "Oral argument on petitions
or motions is not ordinarily permitted", an exception exists: "An amicus curiae may
participate in oral argument only with the court's permission." Fed. R. App. Rule 29(g).
"Moreover, appellate courts may address a waived issue when it promotes the
public interest or is necessary to avoid manifest injustice. Bylin v. Billings, 568
F.3d 1224, 1231 (lOth Cir. 2009; Sussman v. Patterson, 108 F.3d 1206, 1210 (lOth
Cir. 1997)" Utah Reply Brief, Pg 41, Footnote 19
Amicus argues that the issues in his Brief are properly before this Court but have
not been "vigorously argued". They are clearly important to the public interest and the
failure to have them adequately heard and "vigorously argued" by this Court would be a
manifest injustice to millions of religious individuals in Utah and across America who
will by the decision of the Court below.
 
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Certificate of Service
DEREK KITCHEN, et. al.
Plaintiffs - Appellees
v.
GARY R. HERBERT, et. al.
Defendants - Appellants
SHERRIE SWENSON, as Salt Lake
Clerk
Defendant
Case No. 13-4178
Certificate of Service for Motion for Leave of Court
To Participate in Oral Arguments
By Duane Morley Cox, Pro Se, Amicus Curiae
I hereby certify that on 17 March 2014, that I filed by First class Mail, Postage
Prepaid, the foregoing Motion to the 1Oth Circuit Court, and also by First Class Mail,
Postage Prepaid to the following:
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Gene C. Schaerr, Special Assistant Utah Attorney General
Brian L. Tarbet, Chief Deputy Utah Attorney General
Stanford E. Purser, Assistant Utah Attorney General
Parker Douglas, Chief of Staff & General Counsel
PhillipS. Lott, Assistant Utah Attorney General
PO Bos 140856
160 East 300 South
Salt Lake City, Utah 84114-0856
801-366-0100
Peggy A. Tomsic
James E. Magleby
Jennifer Fraser Parrish
MAGLEBY & GREENWOOD., P.C.
170 south Main street, Suite 850
Salt Lake City, Utah 84101
Ralph Chamness
Darcy M. Goddard
Salt Lake County District Attorneys
2001 South State, Suite 3700
Salt Lake City, Utah 84190
Kathryn D. Kendell
Shannon P. Minter
David C. Codell
National Center for Lesbian Rights
870 Market St., Ste 370
San Francisco, Ca 94102
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gschaerr@.utah. gov
=
tomsic@mgplaw .com
magleby@mpglaw .com
parrish@mglpaw .com
rchamness@slco.org
dgoddard(a>sl co. org
kkendall@nclrights.org
sminter@nclrights.org
dcodell({:Vnclrights.org
Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 7
..
Jennifer L. Bursch, Amici Curiae
Institute for Marriage and Public Policy
24910 Las Brisas Road, Suite 100
Murrieta, California 92562
John Bursch
Warner Norcross & Judd LLP
111 Lyon Street, NW. Ste 900
Grand Rapids, MI 49503
616-752-2474
Monte N. Stewart
12550 W. Explorer Dr., Ste 100
Boise, Id 83 713
208-345-3333
Date: 17 March 2014
jbursch@faith-freedom.com
  .com
stewart@stm-law .com
Duane Morley Cox, Pro Se, A
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