David_______, Ph.D.

801-_________
______________ david._______ @gmail.com
Sandy UT 84093

Dec. 17, 2010

Wayne L. Niederhauser
3182 East Granite Woods Lane
Sandy UT 84092

Dear Senator Niederhauser,

Re: Proposed Legislation

Please introduce a bill in the 2011 Utah state legislative session to preserve religious liberty
and simultaneously eliminate government-sanctioned discrimination concerning a specific
collection of secular, government-granted benefits, protections, and responsibilities which
currently are denied to individuals based on specific combinations of chromosomes.

The short title of this bill is

The Utah Equality Act of 2011

Current Situation

Utah State Constitution Article I, Section 29, a.k.a. Utah Constitutional Amendment 3
(hereinafter “Amendment 3”), states

Article I, Section 29. [Marriage.]

(1) Marriage consists only of the legal union between a man and a woman.

(2) No other domestic union, however denominated, may be recognized as a

marriage or given the same or substantially equivalent legal effect.

Amendment 3 provides a definition of “marriage” that is consistent with the religious and
personal beliefs of many Utah citizens.

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 The Utah Equality Act of 2011 will recognize and affirm the importance of personal and
religious beliefs. No part of the proposed bill should be interpreted as disrespectful of or
detrimental to the religious beliefs or constitutionally guaranteed religious freedoms of any
individual or any secular or religious group. The proposed bill must include text designed
specifically to acknowledge, preserve, and guarantee the religious freedoms of Utah citizens and
the organizations to which they may belong.

No less important is the unalienable, constitutionally guaranteed RIGHT to equal protection

of the law.

Amendment 3 creates an unethical two-class society where some law-abiding adults are
denied the benefits and protections granted to their similarly situated neighbors. Further, the
vague and overly-broad language of sub-section (2) of Amendment 3 denies redress to second-
class citizens through the normal legislative process.

Animus between individuals who are adversely, unfairly, and unethically impacted by
Amendment 3 (and their supporters) and individuals who want to preserve the Amendment 3
definition of “marriage” has created a deep rift in Utah society. In my never-humble opinion,
this division can be eliminated if and only if people recognize that “the separation of church and
state” is in the best interest of every member of Utah society.

Ethical and Legal Considerations

Freedom-loving Americans believe that every individual has an unalienable right to pursue
happiness according to the dictates of her or his conscience so long as she or he causes no harm
to others. Our American experience and our constitutional form of government were founded
specifically and explicitly to protect individual liberty.

The second paragraph of The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.

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 James Madison described the mischiefs of an overbearing majority in his essay, The Utility
of the Union as a Safeguard Against Domestic Faction and Insurrection (Continued), more
commonly called The Federalist, no. 10, Nov. 22, 1787 (emphasis added):

By a faction, I understand a number of citizens, whether amounting to a

majority or a minority of the whole, who are united and actuated by some
common impulse of passion, or of interest, adversed to the rights of other
citizens, or to the permanent and aggregate interests of the community.

The latent causes of faction are thus sown in the nature of man; and we see
them everywhere brought into different degrees of activity, according to the
different circumstances of civil society. A zeal for different opinions
concerning religion, concerning government, and many other
points. . .have, in turn, divided mankind into parties, inflamed them with
mutual animosity, and rendered them much more disposed to vex and
oppress each other than to co-operate for their common good.

When a majority is included in a faction, the form of popular government,

on the other hand, enables it to sacrifice to its ruling passion or interest both
the public good and the rights of other citizens. To secure the public good
and private rights against the danger of such a faction, and at the same time
to preserve the spirit and the form of popular government, is then the great
object to which our inquiries [i.e., the publication of The Federalist Papers]
are directed.

The Federalist, no. 10, continues with Madison describing how a federal republic will
provide a remedy to the “improper or wicked project[s]” of “an unjust. . .majority.”

In the essay On Liberty (1860), John Stuart Mill describes with the precision of a true
clairvoyant the tyranny of the majority created by Amendment 3 (emphasis added):

The “people” who exercise the power [of government], are not always the
same people with those over whom it is exercised, and the “self-
government” spoken of, is not the government of each by himself, but of
each by all the rest. The will of the people, moreover, practically means, the
will of the most numerous or the most active part of the people; the majority,
or those who succeed in making themselves accepted as the majority; the
people, consequently, may desire to oppress a part of their number; and
precautions are as much needed against this, as against any other abuse of
power. The limitation, therefore, of the power of government over
individuals, loses none of its importance when the holders of power are
regularly accountable to the community, that is, to the strongest party
therein. This view of things, recommending itself equally to the intelligence
of thinkers and to the inclination of those important classes in European
society to whose real or supposed interests democracy is adverse, has had no
difficulty in establishing itself; and in political speculations “the tyranny of
the majority” is now generally included among the evils against which
society requires to be on its guard.

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 [T]he sole end for which mankind are warranted, individually or collectively
in interfering with the liberty of action of any of their number, is self-
protection. That the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to
prevent harm to others. His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier,
because, in the opinions of others, to do so would be wise, or even right.
These are good reasons for remonstrating with him, or reasoning with him,
or persuading him, or entreating him, but not for compelling him, or visiting
him with any evil, in case he do otherwise. To justify that, the conduct from
which it is desired to deter him must be calculated to produce evil to some
one else. The only part of the conduct of any one, for which he is amenable
to society, is that which concerns others. In the part which merely concerns
himself, his independence is, of right, absolute. Over himself, over his own
body and mind, the individual is sovereign.

No society in which these liberties are not, on the whole, respected, is free,
whatever may be its form of government; and none is completely free in
which they do not exist absolute and unqualified. The only freedom which
deserves the name, is that of pursuing our own good in our own way, so long
as we do not attempt to deprive others of theirs, or impede their efforts to
obtain it. Each is the proper guardian of his own health, whether bodily, or
mental or spiritual. Mankind are greater gainers by suffering each other to
live as seems good to themselves, than by compelling each to live as seems
good to the rest.

The full text of Mill’s essay can be found at http://www.constitution.org/jsm/liberty.htm.

The Founders of the American republic recognized that every individual has an unalienable
right to pursue happiness according to that individual’s preferences and beliefs so long as no
harm is done to other people. The Founders recognized that groups of people having some
common belief (i.e., a faction) may desire to control the actions of others. The separation of
executive, legislative, and judicial powers, the selection of the President by electors, etc., were
designed specifically to protect the rights of individuals from what Mill later called the tyranny
of the majority.

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 All law-abiding, tax-paying, similarly-situated adult citizens have an unalienable,
constitutionally guaranteed right to equal protection of the laws. The Fourteenth Amendment to
the U.S. Constitution states (emphasis added):

Section 1. All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

Let’s consider two extremely important concepts: First, the definition of “similarly
situated,” and second, legitimate objectives of our secular government that may justify offering
government-granted benefits to one group while withholding said benefits to their similarly
situated peers.

The concept of equal protection applies to individuals or groups of individuals who are
similarly situated. For example, young children and adults are not similarly situated. Children
lack the physical size and emotional maturity of adults. Children also do not have the same legal
accountability and financial responsibility for their actions compared to adults. The government
offers the benefits and protections of a government-issued driver’s license to adults who meet
certain requirements. The same benefits and protections do not have to be offered to children
because children are not similarly situated.

With regard to the secular, government-granted benefits, protections, and responsibilities

we currently associate with the common English-language word “marriage,” biologically
infertile different-gender couples and same-gender couples are similarly situated. If the
government offers a collection of benefits and protections to infertile different-gender couples,
the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment state that
government must offer identical benefits and protections to similarly situated same-gender
couples: Identical benefits; identical protections; identical words on the government-issued
certificates.

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 The government may make an exception to the Equal Protection Clause and the Due
Process Clause of the Fourteenth Amendment if and only if the exception advances a legitimate
objective of secular government.

Returning to the example of driver’s licenses, public safety is a legitimate objective of

secular government. Written and behind-the-wheel examinations are used to determine if a
person knows the rules of the road and can drive safely. An individual who otherwise may be
considered similarly situated to her or his peers (age, physical abilities, etc.) legitimately may be
denied a driver’s license if that individual fails to demonstrate the knowledge and physical skill
needed to operate a motor vehicle safely.

If government offers the secular benefits and protections we currently associate with the
word “marriage” to one group of individuals, namely biologically infertile different-gender
couples, government must offer identical benefits and protections to all similarly situated
individuals. Exceptions to the principle of equal treatment for something as important as the
relationship between spouses are justified if and only if the government can show that the law
advances an important government interest in a way that is substantially related to that interest
(i.e., the judicial standard of intermediate scrutiny).

Let’s consider first how same gender couples are similarly situated to infertile different-
gender couples.

Few things in life are as important as the relationship between spouses. This relationship
potentially impacts our need for food and shelter, physical safety, emotional security,
companionship, love and affection, self-esteem, and opportunities to achieve our full potential as
a human being. (Individuals may recognize this list as Maslow’s Hierarchy of Needs.)

Current marriage law does not differentiate benefits and protections based on gender. The
benefits and protections granted to women and the benefits and protections granted to men are
substantially identical. Married women do not get more hospital visits to an ill spouse than their
male counterparts. Married men do not get larger tax deductions than married women with
identical financial circumstances.

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 Parental rights and child welfare laws are completely separate issues. We are considering
only the secular, government-granted benefits and protections of current marriage law
specifically as applied to infertile different-gender couples. Biological infertility makes any
assumption or discussion of procreation or biological offspring irrelevant.

As individuals, our need for food and shelter, physical safety, emotional security,
companionship, love and affection, self-esteem, and opportunities to achieve our full potential as
a human being are independent of gender. Similarly, our desire to share food and shelter,
physical safety, emotional security, companionship, love and affection, etc., with a loved one is
just as meaningful for a woman as it is for a man. The gender of the individual and the gender of
the loved one are irrelevant. The only difference between a biologically infertile different-gender
couple and a same-gender couple is the total number of X chromosomes and Y chromosomes
collectively shared by these pairs of individuals.

Finally, we ask ourselves if granting a collection of secular benefits and protections to two
individuals having a total of three X chromosomes and one Y chromosome while simultaneously
denying identical secular benefits and protections to two individuals who have a different total of
X and Y chromosomes serves an important government interest, i.e., a legitimate interest of our
secular government. Also we must ask ourselves if discrimination based on combinations of
chromosomes is substantially related to said important government interest. These two tests,
first, the existence of an important and legitimate interest of our secular government, and second,
the relationship of the government action to said government interest, are necessary to justify
government-sanctioned discrimination in something as important as the benefits and protections
we currently associate with the common English-language word “marriage.”

After years of public debate concerning secular equality for members of the LGBTQ
community, no individual has identified a legitimate government interest advanced by granting
benefits and protections to infertile different-gender couples while simultaneously denying
identical benefits and protections to law-abiding, tax-paying, similarly-situated, same-gender
couples.

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 Objections to secular equality for LGBTQ individuals fall into three broad categories.
First, “the gays” want to redefine marriage. Emphatically, NO! The benefits and protections
currently associated with the word “marriage” will not change. LGBTQ individuals only want
the constitutionally guaranteed rights due all law-abiding, tax-paying, similarly-situated adults.
The words on a secular, government-issued certificate must not be used as an excuse to deny our
fellow citizens the unalienable right to equal protection of the laws. The Utah Equality Act of
2011 will address this issue by removing the common English-language word “marriage” from
the discussion.

Second, “gay marriage” will hurt traditional marriage, poison the minds of children, and
cause milk to sour. These objections fall into the broad category of irrational and
unsubstantiated fears. Protecting individuals from irrational, unsubstantiated fear is not a
legitimate government interest.

Third, “Gays are icky,” or this common variation, “God says gays are icky.” Sadly, too
many people need regular reminders that the lawful behavior of their neighbor is none of their
business.

Nothing less than full equality is acceptable. No delay is justified. Same-gender couples
have an unalienable, constitutionally guaranteed right to the secular, government-granted
benefits and protections currently offered to infertile different-gender couples.

The Proposed Solution

The Utah Equality Act of 2011 will amend the Utah Code to separate and differentiate the
secular traditions and religious beliefs concerning the common English-language word
“marriage” and the collection of secular, government-granted benefits, protections, and
responsibilities that currently are associated with the word “marriage” in our secular laws.

Each of the following points, without exception, must be included in the text of the bill:

• Respect for religious belief and constitutionally guaranteed religious freedoms are
essential to the preservation of an orderly society;

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• All law-abiding adults have an unalienable, constitutionally guaranteed right to the
secular benefits and protections offered to their similarly situated peers;

• Legitimate differences of opinion concerning the common English-language word

“marriage” adversely impact society, and the animus created by those differences of
opinion is inconsistent with the orderly society we wish to pass forward to future
generations;

• Because of religious traditions and beliefs concerning a marriage

ceremony and the relationships created by said ceremony, the continued use of the
English-language word “marriage” in our secular laws perpetuates division,
disharmony, and inequality in our society;

• The text of the Utah Code and the text of applicable state regulations are amended
by precisely following this two-step process. The steps of the process are deemed
independent and distinct; nevertheless, the entire process shall take place in what
might be described poetically as “the twinkling of an eye.”

o Step 1. Notwithstanding any unintentional error in the technical and

enabling text of the bill, all text describing the benefits, protections, and
responsibilities of a “marriage” in the Utah Code and the text of applicable
state regulations at the date and time that this bill becomes law are repealed.

o Step 2. As a separate and distinct act of amendment, new text shall be

added to the Utah Code and the text of applicable state regulations defining
the benefits, protections, and responsibilities shared by spouses, using the
phrase “civil union” as the broad, generic term to describe the legal
relationship between spouses.

• Any provision in the Utah Code or state regulations limiting the benefits,
protections, and responsibilities if a civil union by gender or by specific
combinations of gender is repealed except instances where the benefits, protections,

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 and responsibilities are based only on a specific biological characteristic of a
specific individual, for example, the physical process of giving birth to a child.

• Gender specific terms in the Utah Code or state regulations like “husband” or
“wife” are replaced with gender-neutral terms like “spouse”; similarly, terms
associated with traditional or religious ceremonies like “wedding” are replaced with
tradition-neutral terms like “creation of a civil union.”

• No part of the bill shall be interpreted as having an adverse impact on lawful

limitations or restrictions of a civil union based on age, duties of a parent or
guardian of a minor, consanguinity, or a pre-existing, legally recognized domestic
relationship.

• Legally recognized domestic relationships created prior to the date and time that the
Utah Equality Act of 2011 becomes law are treated the same as a civil union created
in and by the State of Utah.

• Legally recognized domestic relationships created outside the State of Utah are
treated the same as a civil union created in and by the State of Utah.

Anticipated Objections
Amendment 3

The two-step process used to amend the Utah Code is designed specifically to address
potential problems with Amendment 3. After step one of the two-step process, the word
“marriage” has no legal standing. Amendment 3 becomes moot.

“Think of the children”

Same-gender couples are similarly situated to biologically infertile different-gender

couples. All objections related in any way to procreation are irrelevant. The assumption that a
man and a woman might have biological offspring is irrelevant as women significantly older than
the normal age for menopause and anovulation are offered the benefits and protections currently
associated with the word “marriage.”

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Use “civil union” only for same-gender couples

Equal means equal: Same benefits, same protections, same words on the government-
issued certificate; same status in society.

The Final Report of the New Jersey Civil Union Review Commission, The Legal, Medical,
Economic & Social Consequences of New Jersey’s Civil Union Law, issued Dec. 10, 2008
(http://www.state.nj.us/lps/dcr/downloads/CURC-Final-Report-.pdf) includes powerful
arguments against using different words to describe a legal union of two individuals. The first
paragraph of the report includes the following (emphasis added):

After eighteen public meetings, 26 hours of oral testimony and hundreds of

pages of written submission from more than 150 witnesses, this Commission
finds that the separate categorization established by the Civil Union Act
invites and encourages unequal treatment of same-sex couples and their
children. In a number of cases, the negative effect of the Civil Union Act on
the physical and mental health of same-sex couples and their children is
striking, largely because a number of employers and hospitals do not
recognize the rights and benefits of marriage for civil union couples.

We do not have separate drinking fountains for “straights” and “gays.” We certainly do not
need separate secular, government-issued certificates.

Would any sane individual love her or his spouse any less if the government-issued
document in the family scrap book said?

Certificate of Rutabaga

I hope not. The actual word on the piece of paper we get from our government is
significantly less important than the relationship being created. Similarly, upholding the
principle that all women and men are deemed equal before the law is significantly more
important the actual word on the government-issued certificate.

A one-mom-one-dad family is the foundation of an orderly society

Reality check! If a one-mom-one-dad family is so important, why does government allow

divorce? Why are single parents allowed to raise minor children?

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LGBTQ individuals are “the greatest threat to America going down”

Irrational prejudice has no place in modern society. All objections related in any way to
value judgments or religious beliefs are irrelevant.

The irrational belief that individuals with relatively small amounts of the skin pigment
melanin are superior to individuals with larger amounts of melanin is the foundation of racist
bigotry. Similarly, the belief that individuals with one kind of sexual preference are superior in
some way to individuals with other preferences is absolutely contradicted by scientific evidence
and rational thinking.

Utah citizens are not ready for this change

Many of the citizens of Alabama were not ready for the end of racial segregation when
President John F. Kennedy ordered Alabama Governor George Wallace to allow black students
to register at the University of Alabama (Presidential Proclamation 3542) and authorized
enforcement by the Secretary of Defense and the Alabama National Guard (Executive Order
11,111) on June 11, 1963. In a televised speech later that evening, President Kennedy said:

This Nation was founded by men of many nations and backgrounds. It was
founded on the principle that all men are created equal, and that the rights of
every man are diminished when the rights of one man are threatened.

We are confronted primarily with a moral issue. It is as old as the scriptures

and is as clear as the American Constitution.

The heart of the question is whether all Americans are to be afforded equal
rights and equal opportunities, whether we are going to treat our fellow
Americans as we want to be treated.

Utah faces the same kind of moral issue. Utah needs leaders like President Kennedy and
not obstructionists like Governor Wallace. Every individual who aspires to leadership in our
community has a duty to support principles of ethical and moral governance. If the citizens of
Utah are not ready for this change, the leaders of our various and diverse communities need to
instruct and motivate their friends and neighbors. No leader can ignore this responsibility.

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Conclusion

The use of the common English-language word “marriage” in the Utah Code, in other state
regulations and documents, and on secular, government-issued certificates creates disharmony in
our society. Individuals who wish to preserve the religious or traditional meaning of the word
“marriage” have created an unethical two-class society where law-abiding, tax-paying adults are
denied the benefits and protections offered to their similarly situated neighbors. On this specific
issue, no legitimate government interest can be found to justify an exception to the constitutional
right to equal protection of the laws and to the unalienable right to life, liberty, and the pursuit of
happiness.

The solution is remarkably simple: Remove the common English-language word

“marriage” from the Utah Code.

A clear separation of the traditional and religious practices associated with “marriage” and
the legal benefits and protections of our secular government is the best possible solution.
Individuals and groups are welcome to define “marriage,” to conduct marriage ceremonies, etc.,
according to their preferences and beliefs. The registration of a civil union becomes an
administrative, record-keeping function.

In my never-humble opinion, failure to act now perpetuates disharmony and inequality in

our society and increases the probability that a less satisfactory solution may be imposed by the
federal judiciary.

Please contact me to set a date and time to discuss this request.

Warmest Regards,

David S. Saari, Ph.D.

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