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Duane Morley Cox, Pro Se4056 West 3830 SouthWest Valley City, Utah 84120Ph: 801-755-3578

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

DEREK KITCHEN et. al.laintiffs and Appellee s

v

GARY R HERBERT et. al.Defendants and Appellants

MOTION FOR LEAVE TOPARTICIPATE IN ORAL ARGUMENTS

IN SUPPORT OF UTAH SCONSTITUTIONAL

AMENDMENT NO. 3Case: 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 Protectedrights of religions and their membership. On the one hand, the States are mandated to

protect st Amendment rights pursuant to the 14th Amendment whenever they passPg 1

Appellate Case: 13-4178 Document: 01019221603 Date Filed: 03/21/2014 Page: 1

Docket Reference Number: [10159478]

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legislation.

The Free Exercise Clause of the First Amendment, which has been applied to theStates 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 shallmake no law respecting the establishment of religion, or prohibiting the freeexercise thereof Church of The Lukumi Babalu Aye v. City of Hialeah, 113S.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 atissue regulates or prohibits conduct because it is undertaken for religiousreasons. See. E.g. Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (pluralityopinion); Fowler v Rhode Island, 345 U.S. 67, 69-70 (1953)'' Church of TheLukumi 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 reasonto believe that permitting same-sex couples to marry will affect attitudes, beliefsor conduct of other couples, or of society at large toward marriage and parentingUtah Reply Brief, Pg 14

Which the Court below echoed their sentiment in its su sponte discussion ofPg2


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religious impacts:

Although the State did not directly present an argument based upon religiousfreedom, the court notes that its decision does not mandate any change forreligious institutions, which may continue to express their own moral viewpointsand 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 avigorous defense' (citations omitted), and a constitutional rule announced suasponte is entitled to less deference than one addressed on full briefing andargument (citations omitted). Church of The Lukumi abalu Aye v. City ofHialeah, 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 101h Amendment issue raised by Amicus (RB, pg 99), but on other grounds.

Pg 3


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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 o 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 o the U.S.Pg


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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 i and when this issue reaches the Supreme Court it will have been fully briefed and

argued. Amicus Cox argues that the issue o Religious impacts has not yet been fully

briefed and argued. While the l th 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 thepublic interest or is necessary to avoid manifest injustice. Bylin v. Billings, 568F.3d 1224, 1231 lOth Cir. 2009; Sussman v. Patterson, 108 F.3d 1206, 1210 lOthCir. 1997) Utah Reply Brief, Pg 41, Footnote 19Amicus 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 o religious individuals in Utah and across America who

will ~ r j n j u r e by the decision o the Court below.~ f ~

Pg 5


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UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

Certificate o Service

DEREK KITCHEN et. al.

Plaintiffs - Appellees

v

GARY R. HERBERT et. al.

Defendants - Appellants

SHERRIE SWENSON as Salt LakeClerk

Defendant

Case No. 13 4178

Certificate o Service for Motion for Leave o CourtTo 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 PostagePrepaid the foregoing Motion to the Oth Circuit Court and also by First Class Mail

Postage Prepaid to the following:Pg 1


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Gene C. Schaerr, Special Assistant Utah Attorney GeneralBrian L Tarbet, ChiefDeputy Utah Attorney GeneralStanford E. Purser, Assistant Utah Attorney GeneralParker Douglas, Chiefof Staff General CounselPhillipS. Lott, Assistant Utah Attorney GeneralPO Bos 140856160 East 300 SouthSalt Lake City, Utah 84114-0856801-366-0100

Peggy A. TomsicJames E. MaglebyJennifer Fraser ParrishMAGLEBY GREENWOOD., P.C.170 south Main street, Suite 850Salt Lake City, Utah 84101

Ralph ChamnessDarcy M. GoddardSalt Lake County District Attorneys2001 South State, Suite 3700Salt Lake City, Utah 84190

Kathryn D. KendellShannon P. MinterDavid C. CodellNational Center for Lesbian Rights870 Market St., Ste 370San Francisco, Ca 94102

Pg

[email protected]. gov=tomsic@mgplaw commagleby@mpglaw comparrish@mglpaw com

[email protected] a>sl co. org

[email protected]@nclrights.orgdcodell {:Vnclrights.org


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Jennifer L. Bursch, Amici CuriaeInstitute for Marriage and Public Policy24910 Las Brisas Road, Suite 100Murrieta, California 92562John BurschWarner Norcross Judd LLP111 Lyon Street, NW. Ste 900Grand Rapids, MI 49503616-752-2474

Monte N. Stewart12550 W Explorer Dr., Ste 100Boise, Id 83713208-345-3333

Date: 17 March 2014

[email protected]

j b u r s c h ~ w n j .com

stewart@stm-law com

Duane Morley Cox, Pro Se, A

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13-4178 #9878