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Nos. 14-5003, 14-5006 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MARY BISHOP, et al., Plaintiffs-Appellees, and SUSAN G. BARTON, et al., Plaintiffs-Appellees/Cross-Appellants, v. SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant-Appellant/Cross-Appellee. and THE UNITED STATES OF AMERICA, ex rel. ERICK H. HOLDER, JR. in his official capacity as Attorney General of the United States of America, Defendant, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, et al., Intervenors-Defendants.

Appeal from United States District Court for the Northern District of Oklahoma Civil Case No. 04-CB-848-TCK-TLW (Honorable Terence C. Kern)

BRIEF OF AMICI CURIAE THE CENTER FOR URBAN RENEWAL AND EDUCATION, THE COALITION OF AFRICAN-AMERICAN PASTORS USA, AND THE FREDERICK DOUGLASS FOUNDATION, INC., SUPPORTING THE DEFENDANT -APPELLANT SALLY HOWE SMITH FAVOR OF REVERSAL

Stephen Kent Ehat, Esq. 167 North 1150 East Lindon, Utah 84042 (801) 785-9797 (Attorney for Amici)

EQCF#79 Docket Reference [10152436]

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FRAP RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Amicus The Center for Urban Renewal and Education (CURE) is a California corporation and states that it has no parent corporation, that it issues no stock, and that no publicly held corporation owns any stock of CURE. Amicus The Coalition of African American Pastors USA (CAAP) is not a corporation but is a grass-roots movement of thousands of African-American Christians and clergy seeking to support the institution of marriage and states that it has no parent corporation, that it issues no stock, and that no publicly held corporation owns any stock of CAAP. Amicus The Frederick Douglass Foundation, Inc. (FDFI) is a Maryland corporation, issues no stock and has no parent corporation. Therefore, no publicly held corporation owns any stock of FDFI.

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION: LOVING COMPELS REVERSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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TABLE OF AUTHORITIES Page Decisions of the United States Supreme Court Baker v. Nelson, 409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Hirabayashi v. United States, 320 U.S. 81 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Maynard v. Hill,125 U.S. 190 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Orr v. Orr, 440 U.S. 268 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) . . . . . . . . 3, 8, 9, 10 Stanton v. Stanton, 421 U.S. 7 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10 United States v. Windsor, 133 S. Ct. 2675 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 1

Decisions of Lower Federal Courts

Bishop v. United States ex rel Holder, ___ F. Supp. 2d ___, No 4:04cv-00848-TCK-TLW (N. D. Okla. January 14, 2014) . . . . . . . . . . v, 1

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STATEMENT OF INTEREST OF AMICI CURIAE1 Founded in 1995 by its current president, Ms. Star Parker, The Center for Urban Renewal and Education (CURE), promotes traditional values, personal responsibility, limited government, and faith, all to address issues of race and poverty. CURE delivers its message both to political and thought leaders in Washington and to a national network of black pastors. The Frederick Douglass Foundation, Inc. (FDFI) is a public policy and educational organization favoring limited government and the sanctity of the free market as the best tools to address the hardest problems facing our nation. FDFI consists of pro-active individuals committed to developing innovative approaches to today’s problems with the help of elected officials, university scholars, and community activists. The Coalition of African American Pastors USA (CAAP) is a grass-roots movement of tens of thousands of African-American Christians and clergy who believe in traditional family values such as protecting the lives of the unborn and defending the sacred institution of marriage. CAAP encourages Christian people of all races and backgrounds everywhere to stand up for their convictions.
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No party’s counsel authored this brief in whole or in part; no party and no party’s counsel contributed money that was intended to fund preparing or submitting this brief; and no person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting this brief. See Fed. R. App. P. Rule 29(c)(5)(a)-(c). iv

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These three non-profit amici—who have each by its own internal decisionmaking process, exercised its authority to participate in the filing of this brief— state their interest in this case arises out of a need to voice the view that the civil rights of parties to same-sex relationships are not advanced by reliance on legal principles enunciated in Loving v. Virginia, 388 U.S. 1 (1967), principles that otherwise have served to further the civil rights of African-Americans. These amici believe the lower court’s decision in Bishop v. United States ex rel Holder, ___ F. Supp. 2d ___, No 4:04-cv-00848-TCK-TLW (N. D. Okla. January 14, 2014), cites to and comments on Loving in a way that actually supports the conclusion that Loving here compels reversal. All parties have consented to the filing of this brief. See Appellate Case No. 14-5003, Document No. 01019193453 (filed January 28, 2014). Thus no motion for leave to file is required. See Fed. R. App. P. 29(a). Respectfully submitted this 25th day of February 2014.

s/ Stephen Kent Ehat Counsel of Record for Amici The Center for Urban Renewal and Education (CURE), Coalition of African American Pastors USA (CAAP) and The Frederick Douglass Foundation, Inc. (FDFI)

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ARGUMENT In its Opinion and Order below, the United States District Court for the Northern District of Oklahoma referred repeatedly to United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (striking down DOMA’s definition of marriage, which controlled “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law,” as a violation of the Fifth Amendment to the U.S. Constitution). In one of its references to Windsor, the court below discussed how Windsor should be read in light of Loving v. Virginia, 388 U.S. 1 (1967) (holding that Virginia’s prohibition of interracial marriage violated equal protection and substantive due rights). Said the court below: Windsor supports Smith’s position because it engages in a lengthy discussion of states’ authority to define and regulate marriage, which can be construed as a yellow light cautioning against Windsor’s extension to similar state definitions. See id. at 2692 (explaining that state marriage laws vary between states and discussing states’ interest in “defining and regulating the marital relation”). Again, however, the “yellow light” argument has its limitations. In discussing this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer “subject to constitutional guarantees.” See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1 (1967) (holding that Virginia’s prohibition of interracial marriage violated equal protection and substantive due rights)). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights. New York had expanded its citizens’ rights, and there was no possible constitutional deprivation in play. (Opinion and Order, Case 4:04-cv-00848-TCK-TLW Document 272, at 37.) 1

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Thus, insofar as concerns the lower court’s view of the “broad authority” of the State of Oklahoma to define and regulate marriage, the question presented by this case is whether Oklahoma’s societal policy defining and regulating marriage as an institution limited to the one-man-one-woman relationship violates any citizen’s federal constitutional rights. As amici with an intimate perspective on African-American issues genearally and on the role of Loving in American society specifically, we argue that a proper reading of Loving actually compels reversal. This case is entirely unlike Loving v. Virginia, 388 U.S. 1 (1967). The ban on miscegenation in Loving had nothing to do with the institution of marriage; the Loving decision actually reaffirmed the male-female institution of marriage. Same-sex marriage has never been held to be a fundamental right under the U.S. Constitution. The Constitution protects a fundamental right to marry and every instance of support voiced by the nation’s Highest Court affirming that fundamental right affirms it as a one-man-one-woman relationship. Reliance upon Loving as support for a position that limiting the definition of marriage to that of one man and one woman somehow violates constitutional rights lack merit; the marriages banned by antimiscegenation laws were one-man-one-woman marriages. In its decision in Loving the Supreme Court explicitly premised its ruling on the fact that the Fourteenth Amendment was designed to end racially-discriminatory laws. See Loving, 388 U.S. at 12 (“The Fourteenth Amendment requires that the 2

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freedom of choice to marry not be restricted by invidious racial discriminations.”). Loving in fact supports the simple proposition that opposite-sex couples have a fundamental right to marry without interference by state laws that might otherwise seek to pursue objectives wholly irrelevant to marriage (such as pursuit of “white supremacy” objectives, which have no role in or proper significance to the institution of marriage). Loving, 388 U.S. at 12. Although husband-wife marriage unquestionably is a fundamental right under the federal Constitution, Turner v. Safley, 482 U.S. 78, 95 (1987) (“the decision to marry is a fundamental right”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“[m]arriage and procreation are fundamental”), neither does the federal Constitution recognize nor has any United States Supreme Court case construing the federal Constitution ever recognized the unrestricted right of a person to marry another person of the same sex. Instead, the fundamental right that the United States Supreme Court has recognized applies only to marriages between one man and one woman: “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” Loving, 388 U.S. 1, 12 (1967). Unlike opposite-sex marriage, same-sex marriage is not fundamental to the existence and survival of the human race. When the High Court declared that “[m]arriage is one of the basic civil rights of man, fundamental to our existence and survival” (Loving, 388 U.S. at 12, 3

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emphasis added), the Court necessarily and exclusively was referring marriages of heterosexual couples, for mankind “exists” through past marital sexual relations between a man and a woman and mankind “survives” through future marital sexual relations between a man and a woman. Notwithstanding technologies may have unlinked childbearing from man-woman sexual relations (e.g., in vitro fertilization; surrogate motherhood; etc.) and notwithstanding court decisions since 1967 may have unlinked sexual relations from the institution of marriage (e.g., legalizing same-sex sexual relations), the role of marriage as a basic civil right “fundamental to our existence and survival” has not changed. And while developments in constitutional doctrine have recognized individual rights and individual interests relating even to sexual intimacy, and while courts have reaffirmed and strengthened those individual rights and interests in an effort to overcome unlawful forms of discrimination, such as the racial discrimination done away with by Loving, no binding constitutional doctrine has been developed that has exalted those individual rights and individual interests to the level that they do or should supplant society’s interest in marriage as a oneman-one-woman institution. Society is interested in preserving the institution of marriage as a durable social institution in which, whenever possible, the natural father and natural mother of the children they themselves beget together serve as the inclusive role models of the traits of character that cultivate and preserve a 4

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society in which both sexes are valued equally. Only one-man-one-woman marriage provides this model. Same-sex marriage by definition does not. Advocates of same-sex marriage can turn only to an institution that, by definition, excludes one of the sexes as irrelevant to the parental role model that teaches children and that in cases where no children are brought into the relationship is one that is intended to meet solely the needs and wishes of the two adults in the relationship. Advocates of same-sex marriage can make recourse only to the constitutionally charged language of individual rights in their effort to challenge laws that otherwise are intended to support the interests of society and of society’s children in durable family structures. The law in Oklahoma was not enacted simply to give legal force to moral judgments about private conduct. Oklahoma as a state, and its people as citizens of the state, have a societal interest in marriages contracted in the State. Marriage is a “social relation subject to the State’s police power.” Loving, 388 U.S. 1, 7, 87 (emphasis added). So the law regarding marriage—a social institution, defined, sanctioned, recognized, and supervised for public purposes—concerns value judgments about the common good. Those value judgments can be found throughout the law. For one example, children have a right to be raised, taught, and influenced by both genders, not just one, and this is most appropriately provided by a one-man-one-woman married couple that includes both sexes as relevant and 5

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indeed even vital to the parental role model rather than excludes one or the other as irrelevant thereto. Granted, states may enjoy a “‘virtually exclusive province’” over domestic relations law. Zablocki v. Redhail, 434 U.S. 374, 398 (1978) (Powell, J., concurring) (quoting Sosna, 419 U.S. at 404). Or they may enjoy, as the district court below observed, “broad authority to regulate marriage.” But in any event, states may not employ the legal framework of marriage to discriminate against either spouse or to perpetuate the badges of slavery. See, e.g., Orr v. Orr, 440 U.S. 268, 278-79 (1979); Stanton v. Stanton, 421 U.S. 7, 14-15 (1975); Loving v. Virginia, 388 U.S. 1, 7-12 (1967). But federal intervention was justified in Loving to uphold the core guarantees of the Fourteenth Amendment. See, e.g., Loving, 388 U.S. at 6, 11 (describing anti-miscegenation laws as “an incident to slavery” and as “measures designed to maintain White Supremacy”); id. at 11 (observing that “[o]ver the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality’”) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). The Supreme Court has never otherwise countenanced the use of federal judicial power to recast the basic framework of marriage itself as an institution in which society has a fundamental interest. That the federal courts could impose a 6

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radically altered definition of marriage, spawned by their infusion of personal rights protections into an area of law that protects society’s interests, is a notion inconsistent with the federalist design of our republic. That design allows individual states to test novel social or economic arrangements. The people, acting through their state and local governments, are best able to weigh the consequences that may result from altering the definition of marriage. Such democratic self-determination cannot take place—and here could not have taken place—in a federal courtroom without subverting the traditions of the people. The traditional institution of marriage is deeply rooted in human history and social experience. That is why it is accorded the protected status of a fundamental right. See Loving, 388 U.S. at 12. The Supreme Court has recognized that fundamental right as a substantive due process right to marry. See Loving, 388 U.S. 1. But the right recognized in the Loving decision concerned opposite-sex, not same-sex, couples. See Loving, 388 U.S. at 12. Making an analogy to Loving to further the notion that society must accept as a marriage a relatioship that excludes one of the sexes is unconvincing at several levels. First, Loving dealt with race, not sex. Anti-miscegenation statutes sought to keep persons of different races separate. Marriage statutes, on the other hand, seek to bring persons of the opposite sex together. The statutes struck down in Loving prohibited marriages between members of different races, not between members of 7

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the same race. If the Oklahoma constitutional provisions under review here prohibited opposite-sex marriages—something no State has ever contemplated— then an analogy based on Loving would begin to be meaningful. Moreover, the Oklahoma Constitutional Amendment is wholly unlike the history of the anti-miscegenation statutes struck down in Loving. The Virginia statutes stigmatized blacks as inferior to whites. But here, there is no evidence that laws reserving marriage to opposite-sex couples were enacted with an intent to discriminate against either men or women. Thus, such laws cannot be equated with the anti-miscegenation laws struck down in Loving. Here, there is no evidence that the Oklahoma Constitutional Amendment was motivated by “sexism” or a desire to disadvantage men or women. The opposite-sex nature of marriage is inexorably connected with the marital institution’s central procreative purpose. Antimiscegenation laws, on the other hand, were affirmatively at war with the marital institution’s central procreative purpose. In articulating the human right to marry, the Supreme Court has uniformly and clearly articulated the link to procreation. In the 1800s, the High Court spoke of marriage generally by linking it to the very existence of civilization: “[Marriage] is the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill (1888) 125 U.S. 190, 211. In Skinner v. Oklahoma (1942) 316 U.S. 535, 541, the Court noted, “Marriage and 8

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procreation are fundamental to the very existence and survival of the race.” I was this view that the Court echoed in Loving, stating that“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving, 388 U. S. 1, 12 (quoting Skinner v. Oklahoma, supra, 316 U.S. at p. 541 and citing Maynard v. Hill, supra, 125 U.S. 190.) Virtually every United States Supreme Court case recognizing as fundamental the right to marry signifies that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and the attendant link to fostering procreation of our species. The cases recognize both expressly and implicitly that procreation necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman. When the United States Supreme Court invalidated race restrictions in Loving, the one-man-one-woman definition of marriage did not change. The right to marry affirmed in Loving was a one-man-one-woman marriage. The fundamental right to marry recognized by this Court in Loving as protected by the Due Process Clause was tied to the unique procreative capacity of opposite-sex unions, a fact that also renders same-sex relationships not at all “similarly situated” to opposite-sex relationships for purposes of Equal Protection analysis. In Loving the High Court held that the “freedom to marry” was a fundamental freedom that could not be denied “on so unsupportable a basis as [a] 9

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racial classification.” In Loving, marriage was deemed “fundamental” because it is one of the “‘basic civil rights of man,’ fundamental to our very existence and survival,” rooted in the biological complementarity of the sexes. Noteworthy is the fact that the Loving Court cited a case dealing with the right to procreate for its holding that marriage was a fundamental right (Loving, citing Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535). The Loving Court recognized that skin color has nothing to do with the basic procreative purpose of marriage; the racial classification at the heart of Virginia’s anti-miscegenation statutes was therefore “invidious” and rejected. Nothing in Loving suggests that the Constitution compels the redefinition of marriage to include relationships that by definition reject the unique attribute of complementarity of the sexes. By definition, a same-sex relationship deems the complementarity of the sexes to be irrelevant. Same-sex marriage is not and has never been decided by the High Court to be a fundamental right. Although one-man-one-woman marriage unquestionably is a fundamental right under the federal Constitution (Turner v. Safley, 482 U.S. 78, 95 (1987) (the “decision to marry is a fundamental right”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental”), the federal Constitution has never recognized and the Supreme Court cases interpreting the federal Constitution have never recognized an 10

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unrestricted right of any one person to marry any other person of the same gender. The fundamental right recognized by the High Court pertains only one-man-onewoman marriages: “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” Loving, 388 U.S. 1, 12. Unlike opposite-sex marriage, same-sex relationships are not fundamental to the existence and survival of the human race. The injustice of the miscegenation statutes rejected by Loving is not at all the same type of injustice gay and lesbian couples face today. What gays and lesbians face today are lack of respect, lack of honor, and lack of recognition. They face discrimination against them for their lifestyle, they face hatred, they face unjust persecution, and whatever other forms of unfair treatment are unjustly foisted upon them. These should all be (and are being) rightly remedied. But neither was the institution of marriage created nor does it exist to provide respect, to confer honor, or to provide recognition to anyone who enters into a marriage. The institution of marriage was neither designed nor intended by society to eliminate unjust discrimination, to combat hatred, or to remedy the results of persecution. While it is proper to argue that gays and lesbians, who indeed are deserving of respect and equal treatment in our civil laws, should enjoy all of the individual rights which the Constitution and the laws exist to protect, that is not sufficient reason to alter the institution of marriage. 11

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Segregation was a serious social evil. Loving struck down a system of discrimination that was wholly racist at its core. The High Court stated that the Virginia law was about “the absolute prohibition of a ‘white person’ marrying other than another ‘white person’.” The Loving case struck down laws that were about nothing more than “racial purity.” If there were to be any appropriate analogy between Loving and the present case, the court would have to conclude that current laws on marriage as a one-man-one-woman union stem from some effort to keep same-sex partners “in their place.” But even a cursory review of the anthropological origins of the institution of marriage reveals nothing of the sort. Although racists used antimiscegenation statutes to impose on the institution of marriage a disqualifying factor incompatible with the institution itself—the irrelevant factor of “racial purity”—race was not and never could be any part of the institution of marriage. Racists sought to make marriage do something it was never intended to do, namely, provide some sort of vehicle by which the sought to futher narrow social ends that were irrrelevant to the institution. Similarly, same-sex marriage advocates seek to make marriage do something it was never intended to do, seeking to further their own social cause, such as to improve the social standing of same-sex relationships. Whether it be keeping the races apart or providing respect, honor, or recognition to same-sex relationships, redefining the institution of marriage is not the right means to accomplish that goal. 12

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When the Supreme Court decided in Loving that Virginia’s law penalizing interracial marriage could not stand, it did not change the fundamental meaning of marriage. Rather, it affirmed it. The Court upheld protected the institution of marriage from irrelevant racial manipulation, declaring that irrelevant manipulation to be unconstitutional. Virginia had interfered with the insitution of marriage in order to promote “white supremacy,” a factor completely foreign to what a marriage is. The institution of marriage is designed and intended to bring men and women together; anti-miscegenation laws were irrelevant to that design and indeed frustrated that design. They therefore could not stand. Same-sex marriage, too, interferes with the institution of marriage in order to promote yet another goal unrelated to the core purposes of the institution—seeking to promote the dignity and equality of gays and lesbians. While society has made some headway in promoting dignity and equality of gays and lesbians, nothing in the institution of marriage requires that it be used as a vehicle to accomplish any of those goals, however worthwhile they may be. While honorable and good people enthusiastically pursue that goal, the reality about the interests that society has in the institution of marriage remain the same, unaltered and unassailable: The essential, public purpose of marriage is to unite male and female and to have both a father and a mother, preferably the biological father and biologial mother whenever possible serve as the role models and teachers of the next generation of children— 13

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to bind men and women to each other and to the children that their sexual behavior may produce. Such a social interest is rooted in the belief that every child needs a mother and a father. Same-sex marriage, whether enacted by lawmakers or imposed by judges, disconnects marriage from this most fundamental social interest. States may consider and either accept or reject the claim that reserving the status of “marriage” to male-female couples is “invidious.” They may also consider and accept or reject the proposition that same-sex couples should have access to the same benefits enjoyed by married couples. But there is nothing in the Constitution or laws of Oklahoma or in those of the United States that requires, or even permits, a federal court to redefine marriage for the state to deny Oklahoma from further the strong social interest the state has in furthering the likelihood that every child be raised by both a mother and a father and that men and women be bound to each other and to the children that their sexual behavior may produce. If Oklahoma’s limitation of marriage to heterosexual couples existed to suppress constitutional rights, then the federal courts might have occasion to intervene, much as they did in striking down anti-miscegenation laws. But there is no evidence that Oklahoma’s limitation of marriage to heterosexual couples exists to suppress constitutional rights. Oklahoma’s definition of marriage bears no resemblance to anti-miscegenation laws condemned in Loving. 14

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The focus in Loving was the absence of any legitimate purpose for prohibiting interracial marriage. The Loving Court concluded that the challenged laws rested “solely upon distinctions drawn according to race” and that there was “patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” Loving, 388 U.S. at 11. The same cannot at all be said of Oklahoma’s laws limiting marriage to the union of one man and one woman. The legitimate overriding purpose of Oklahoma’s law is also the core, fundamental societal purpose underlying the very institution of marriage itself, namely, the societal purpose of maximizing the likelihood that children will be raised and nutured by two persons, of both sexes, without the exclusion of one of the sexes, such that the children see modeled before them during their growing years the complementarity of the sexes. Loving prevented the commandeering of marriage laws to advance invidious purposes bearing no relation to marriage’s core function. The anti-miscegenation laws struck down in Loving represented relatively recent impositions on the traditional definition of marriage. The common law of England recognized that race disparity did not render parties incapable of contracting marriage. But the anti-miscegenation laws struck down in Loving had sought to impose on marriage—the union of a man and a woman, regardless of race or ethnicity—a factor irrelevant to marriage solely to foster a regime of white supremacy. 15

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In contrast, Oklahoma’s male-female marriage definition is not, and has never been, tainted with any invidious purpose. Ironically, it is the advocates of same-sex marriage themselve who seek to impose on marriage a factor irrrelevant to the institition, seeking thereby to advance personal interests having little to do with marriage’s core social interest and function. Legitimate biological and sociological concerns underlie Oklahoma’s policy decision that marriage should be limited to opposite-sex couples. That decision reflects no animosity toward gays or lesbians or any category of persons. * * * As amici interested in marriage and the family, we respectfully ask the court to suppose the following two things: 1. Suppose, first, that all nations, all states, and all governmental jurisdictions of all kinds recognized and allowed a marriage to be contracted and to exist between any two people regardless of gender, be they both male, both female, one male and one female. In short, suppose that anywhere and everywhere a marriage were allowed and recognized between any two people regardless of sexual identity, that marriage was completely and thoroughly a genderless institution. 2. Suppose, second, that this court, or any court—or indeed, any legislature or supreme authority, such as a queen or king or prime minister, in short, any duly 16

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constituted person or body of persons authorized by a governmental jurisdiction or by its people to make such a decision—were to decide to grant special treatment and status to a special relationship, one that was unique in all the world, namely, the relationship between one man and one woman, the one relationship that can itself create a child and itself raise that child as the physical parents of the child to serve as a role model of the interaction of the two sexes, of both sexes, interdependent with and complementary to one another and not to the exclusion of one of the sexes, giving to that child what no other relationship can give, namely, two biological parents who ideally strive to show the two sexes striving to live together as one, creating a unit that uniquely blends the two sexes rather than excludes one or the other. In light of the above two suppositions, what would that super-legislature or law-maker call that unique institution? What would be the societal interests that such an institution would further? Why would such an institution be singled out as unique? What values would that one unique institution provide to society that no other institution could fully match? One notion entirely absent from any of the purported “doctrinal developments” that would overcome the binding effect of Baker v. Nelson is the notion that the institution of marriage was created or exists for the purpose of furthering or validating the civil rights of same-sex couples to live together and 17

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raise families. If the institution of marriage existed solely to accomplish that end, then where is the case, where is the legislation, where is the doctrine enunciated that the institution of marriage was created and exists for that purpose? It may well be that in the years intervenining between 1972 when Baker was decided and today there have been a whole host of doctrinal developments about the rights of individuals of the same sex to enter into intimate relationships with one another and to enjoy many if not most and in some cases all of the rights that are otherwise associated with and are attached to marital relationships, but where has it been doctrinally decreed that the institution itself is a genderless institution, that it exists to save same-sex couples from some sort of “harm” that might result from their relationship not being called a “marriage”? What message does a state send to its children when the state declares that perons of the same sex may marry? When a state says that two females may marry one another, the state essentially teaches children that the presence of a father in the child’s upbringing and nurturing is, by definition, irrelevant. When the state says that two males marry on another, the state essentially teaches children that the presence of a mother in the child’s upbrining and nurturing is, by definition, irrelevant. Advocates of same-sex marriage argue that laws preserving and protecting heterosexual marriage send a message to children of same-sex couples that their parents are rejected or dishonored or shunned by society. On the contrary, 18

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however, laws preserving and protecting heterosexual marriage send a message to everyone that all children need and deserve to be raised and nurtured by both a father and mother with no exclusion of one of the sexes from the role model that parents provide to their children. The institution of marriage does not exist to make two adults feel accepted. It does not exist to make children feel that their parents are accepted. Society has long ago now allowed same-sex couples to experience all the protections that society offers in the realm of sexual intimacy and privacy. But marriage does not exist to further goals related to the sexual intimacy and privacy of the two adults to a same-sex relationship. Society long has had and still does have and still should continue to have an interest in the institution of heterosexual marriage not because of the needs of the two adults who form a relationship but because of the needs of children to have as their role models in the family unit both a male and a female, not just one of the sexes. Gays and lesbians ought to enjoy all of the protections against animus, discrimination, hatred, violence, and other ills foisted upon them by others. But to protect them in those individual rights and freedoms does not at all require society to abandon its all-important social interest in providing each new generation of children with a parental structure that, by definition, includes both of the sexes rather than, by definition, excludes one or the other of them. Loving recognized this 19

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both in its underlying premise and in its result that the man and woman at the center of that case, Mr. and Mrs. Loving, did exactly as their surname suggests. They loved. Regardless of the irrelevant factor of race, they loved. And they married. And they loved their children. Gays and lesbians, too, without question, love their children and love one another. No one need question that. But the institution of marriage does not exist to give a sort of societal imprimature to the feelings of love and commitment of one adult to another. Society does not have an interest in marriage to salve the feelings of the two adults in a relationship or even the feelings of the children raised by the two adults in an intimate relationship. Society’s interest in the institution of marriage is to assure as much as possible that each child in each generation has both a mother and a father as two models of the two sexes at the head of the family, without the exclusion of one of the sexes from that model. The Lovings were married, as a man and a woman, and though the irrelevant factor of race was removed as an obstacle to their marriage—and the marriages of all others similarly situated—the central and indispensible and socially important, indeed, preeminently important, factor of sexual complementarity and sexual inclusivity was promoted by the Loving decision. The High Court in Loving recognized society’s interest in marriage as an institution not for two adults but one for the benefit of the children.

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VII. CONCLUSION: LOVING COMPELS REVERSAL Wherefore, these amici respectfully submit that the decision of the United States District Court for the Northern District of Oklahoma invalidating provisions of the Constitution of the State of Oklahoma and mandating by judicial fiat the legalization of same-sex marriage in that state, is fundamentally inconsistent with the decision of the United States Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967). This court should reverse the district court. Respectfully submitted this 25th day of February 2014. s/ Stephen Kent Ehat Counsel of Record for Amici CURE, CAAP, and FDFI

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STATEMENT OF RELATED CASE Although 10th Cir. R. 28.2(C)(1) requires the parties not these amici to list (at the end of the table of cases) all prior or related appeals, with appropriate citations, because these present amici (The Coalition of African American Pastors USA (CAAP), The Center for Urban Renewal and Education (CURE) and The Frederick Douglass Foundation, Inc. (FDFI)) have filed and served a separate amicus brief in a separate but related appeal and cross-appeal and therein address issues arising out of the treatment of Loving v. Virginia, 388 U.S. 1 (1967) by the United States District Court for the District of Utah, these amici here state that there is a related appeal pending in this court, Kitchen v. Herbert, Tenth Cir. No. 13-4178, which arises out of a federal district court in Utah. Dated: February 25, 2014

s/ Stephen Kent Ehat Counsel of Record for Amici The Center for Urban Renewal and Education (CURE), Coalition of African American Pastors USA (CAAP) and The Frederick Douglass Foundation, Inc. (FDFI)

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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: O G this brief contains 4,965 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains _______ lines of text, 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: O this brief has been prepared in a proportionally spaced typeface using the Corel WordPerfect word processing program and the Times New Roman 14 point font, or this brief has been prepared in a monospaced spaced typeface using (state name and version of word processing program) ___________ with (state number of characters per inch and name of type style) ________________________.

G

Signature: Attorney for:

s/ Stephen Kent Ehat Amici Curiae The Coalition of African American Pastors USA, The Frederick Douglass Foundation, Inc. and The Center for Urban Renewal and Education February 25, 2014

Date:

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ECF CERTIFICATIONS Pursuant to Section II(I) of the Court’s CM/ECF User’s Manual, the undersigned certifies that: 1. all required privacy redactions have been made pursuant to Rule 25.5 of the Tenth Circuit Rules; 2. hard copies of the foregoing motion required to be submitted to the clerk’s office are exact copies of the brief as filed via ECF; and 3. the document filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials, Antimalware Client Version: 4.4.304.0; Engine Version: 1.1.10201.0; Antivirus definition: 1.165.3064.0; Antispyware definition: 1.165.3064.0; Network Inspection System Engine Version: 2.1.10003.0; and Network Inspection System Definition Version: 109.107.0.0, and according to the program is free of viruses. Dated this 25th day of February 2014.

s/ Stephen Kent Ehat Counsel of Record for Amici The Center for Urban Renewal and Education (CURE), Coalition of African American Pastors USA (CAAP) and The Frederick Douglass Foundation, Inc. (FDFI)

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CERTIFICATE OF SERVICE I hereby certify that on the 25th of February 2014, a true, correct and complete copy of the foregoing BRIEF OF AMICI CURIAE THE CENTER FOR URBAN RENEWAL AND EDUCATION, THE COALITION OF AFRICAN-AMERICAN PASTORS USA, AND THE FREDERICK DOUGLASS FOUNDATION, INC., SUPPORTING THE DEFENDANT -APPELLANT SALLY HOWE SMITH FAVOR OF REVERSAL was filed with the Court and served on the following via the Court’s ECF system:
GENE SCHAERR Special Assistant Utah Attorney General P.O. Box 140856 160 East 300 South, sixth floor Salt Lake City, Utah 84114-0856 Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 gschaerr@utah.gov

tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com

kkendall@nclrights.org sminter@nclrights.org dcodell@nclrights.org

rchamness@slco.org dgoddard@slco.org

s/ Stephen Kent Ehat Counsel of Record for Amici The Center for Urban Renewal and Education (CURE), Coalition of African American Pastors USA (CAAP) and The Frederick Douglass Foundation, Inc. (FDFI) 25

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