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Appellate Case: 13-4178

Document: 01019239979

Date Filed: 04/25/2014

Page: 1



Chief Criminal Deputy

General Counsel & Chief of Staff

Solicitor General

Chief Civil Deputy

April 25, 2014 Via electronic filing Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, Colorado 80257 Re: Kitchen v. Herbert, No. 13-4178 Response to Plaintiffs Rule 28(j) letter re: Henry v. Himes, No. 1:14-cv-129 (S.D. Ohio April 14, 2014)

Dear Ms. Shumaker, While each statement Plaintiffs glean from Henry is incorrect, Utah responds to Henrys incorrect use of Loving to find sex discrimination, in a manner implied in questioning from this Court. First, as Henry correctly recognizes in the race context, the freedom to marry . . . resides with the individual rather than the couple. A couple has no gender, which is by definition a characteristic of an individual. Here, there is no dispute that Utahs marriage definition treats individuals the same with respect to sex: to marry, each must choose someone of the opposite sex, and consequently Utahs law is neutral with respect to sex. Second, although Loving found a similar equal application argument insufficient to sustain an anti-miscegenation law, that was because the law had a clear racially discriminatory purpose and disparate impact: the Court found the law was designed to maintain White supremacy. Here, none could contend that Utahs marriage definition is designed to have or actually has a disparate impact on men or women as a class.
160 East 300 South P.O. Box 140856 Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101

Appellate Case: 13-4178 Elisabeth A. Shumaker April 25, 2014 Page 2

Document: 01019239979

Date Filed: 04/25/2014

Page: 2

Utahs definition may have disparate impact on gays/lesbians. However, even if disparate impact were sufficient for a finding of discrimination, heightened scrutiny is not triggered, as this Courts precedents hold that sexual-orientation discrimination is subject only to rational-basis review. Third, Henrys analogy to Loving disregards that Utah as a matter of policy and law has no interest in recognizing emotional commitments between any couples, regardless of orientation. No one disputes that gay couples can be as emotionally devoted to each other as any couples. Instead, Utah creates incentives to bind parents with their children, and thus: (1) reinforce the value of every childs being connected to his or her mother and father; (2) maintain a child-centered view of marriage that increases the likelihood that biological parents stay together even when adult emotions fade; (3) reduce risk that any child will be born out of wedlock and raised by a single parent; and (4) maintain adequate fertility rates. That is another reason Loving is inapposite: race has nothing to do with these state interests; sexual complementarity has everything to do with them. Respectfully submitted, /s/ Gene Schaerr ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing brief required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v., and according to the program is free of viruses. /s/ Gene Schaerr