13-4178 amicus brief of duane morley cox

8/13/2019 13-4178 Amicus Brief of Duane Morley Cox

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Case No. 13-4178

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

On APPEAL FROM

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UNITED STATES DISTRICT OLTRT FOR THE DISTRICT OF UTAHI

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I

CENTRAL DIVISION

Derek Kitchen Moudi Sbeity Karen Archer Kate Call Laurie WoodI

I and Cody PartndgePlaintiffs and Appellees

v.

ary R. Herbert John Swallow and Sherrie SwensenDefendants and Appellants

BRIEF OF AMIClTS CURIAEIN SUPP9RT OF UTAH'S CONSTITUTIONAL AMENDMENT NO.3

Filed By

Duane Morley Cox Pro Se4056 West 3830 South

West Valley City Utah 84120Ph: 801-755-3578

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Appellate Case: 13-4178 Document: 01019201933 Date Filed: 02/12/2014 Page: 1

ocket Reference Number: [10149171]


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

TENTH CIRCUIT COURT OF APPEALS

DEREK KITCHEN et. al.Plaintif fs and Appellee s

V

GARY R HERBERT et. al.Defendants and Appellants

BRIEF OF AMICUS CURIAEIN SUPPORT OF UTAH S

CONSTITUTIONALAMENDMENT NO. 3

Case: 13-4178 (UTAH)

COMES NOW: Duane Morley Cox, ProSe pursuant to Fed. R App. Rule 29, and files

this BriefOfAmicus Curiae in support ofUtah s Constitutional Amendment No.3.

DISCLOSURE STATEMENT: Amicus is not a corporation. All research and all

arguments presented herein are exclusively those ofAmicus. This Brief \Vas prepared

and typed by Amicus, and has not been reviewed or contributed to by any outside personor entity. All funds expended to prepare and reproduce this Brief are exclusively funds of

Amicus. Although Amicus is a n1ember of the Church of Jesus Christ ofLatter Day



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Saints (LDS) which is headquartered in Utah, and holds the Melchizedek Priesthood

therein, Amicus does not speak for or represent the LDS Church. However, Amicus does

believe that the issues he addresses affect the LDS Church and all o the 6+ Million

members o the LDS Church living in every State o the Nation, including Utah, as well

as millions o other religious individuals o other faiths who believe that Marriage is

solely between a man and a woman, in the same manner as they affect him. And Amicus

draws from the teachings and scriptures o his LDS Faith as presented in the King James

Version o the Bible and the Book o Doctrine and Covenants published by the LDS

Church, as used by the leadership o the LDS Faith and its members in their study and

worship.

TABLE OF CONTENTS: Page

Disclosure Statement . i

Table o Contents ........................................................................................................

Table o Authorities ....................................................................................................Identity o Amicus . 1

Amicus Interest . 3



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TABLE OF CONTENTS, CONT'D: Page

Statement of Preparation ............................................................................................... 4

Arguments ..................................................................................................................... 4

I The Court below was not properly briefed . 5

II. Utah s Amendment No.3 Protects 1st Amendment Rights ..................... 6

III. The Decision of the Court below usurps Utah s and itsCitizens rights in violation of the 9th and 1Oth AmendmentsTo the Constitution .................................................................................. 9

IV. The Decision causes the Supreme Court to become a''Superlegislature'' .................................................................................... 10

V. The Decision creates a religious Test violating Article VIOf the U.S. Const ...................................................................................... 14

Conclusion ................................................................................................................... 15

TABLE OF AUTHORITIES:

Case Law: Page

Annotation, S Ct s Construction Of Eleventh Amendment,106 L.Ed2d. 660 (S. Ct. 1989) ........................................................................... 13

Barnette, 319 U.S. 624 (S.Ct. 1943) .................................................................. 11



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Case Law Confd: Page

Church ofThe Lukumi Babalu Aye v. Hialeah, 113 S.Ct. 2217 (1993) .. 4, 5 6, 7

Kitchen v. Herbert { Decision }, 2:13-cv-217 (Ut. Dist. 2103) ..................... 5 6

Lander v. United States, 358 U.S. 169 (1958) .................................................... 6

Nat. Fed. Oflnd Businesses v. Sebelius, 567 U.S. (2012)as given on Pg 11 of Slip Opinion (See Exhibit A) ............................................. 5

McDaniel v. Paty, 435 U.S. 618 ........................................................................ 15Other Authorities: Page

The Book ofDoctrine and Covenants OfThe Church Of Jesus Christ ofLatterDay Saints, Containing Revelations Given To Joseph Smith, The Prophet, WithSome Additions By His Successors In The Presidency OfThe Church, PublishedBy the Church of Jesus Christ OfLatter Day Saints, Salt Lake City, Utah, USA1981

D C 42:22 ......................................................................................................... 1

D C 76:81-113 .................................................................................................. 3

D C 88:20-24 .................................................................................................... 2

D C 98:18 ......................................................................................................... 2D C 131:1-4 ...................................................................................................... 2

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Other Authorities: Page

The Holy Bible, containing The Old and New Testaments, Authorized King JamesVersion, Published By the Church f Jesus Christ f Latter Day Saints, Salt Lake City,Utah, U.S.A. 1979

1st Corinthians 15 :40-41 . 2

Genesis 1 24-28 .................................................................................................. 1

Genesis 2:24 ....................................................................................................... 1

John 14:2 ............................................................................................................ 2

Leviticus 20: 13 . 1

Leviticus20:15 ................................................................................................... 1

Mark 10:7 ............................................................................................................ 1

Matthew 18:18 ..................................................................................................... 2

Matthew 19:5 ...................................................................................................... 1

U.S. Constitution, Article VI .......................................................................... 4, 5 14, 15

Exhibits Cited On: Page

Exhibit A, Pg 11, Extracted from Slip Opinion for Nat. Fed.f Ind. Businesses v. Sebelius, 567 U.S . _ 2012) ....................... 5



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Exhibit B, Group Loses Tax Break Over Gay Union IssueBy Jill Capuzzo, 18 September 2007 ............................................. 8 9

Exhibit C, New York Marriage Equality Act ..................................................... 9

Exhibit D, When Conscience and the New Marriage Collide, byClyde Haberman, July 2011 ............................................................ 14

Exhibit E, Town Clerk, I do not do I do , by Lauren Stanforth,Staff Writer, 6 December 2011 ........................................................ 14

Exhibit F, Rights Collide as Town Clerk Sidesteps Role inGay Marriages, 27 September 2011 ................................................. 14

Exhibit G, History of the Church OF Jesus Christ ofLatter Cay Saints,By: B. H. Roberts, Published by the Church, Second Ed.Revised, Printed by The Deseret Book Company, SaltLake City, Utah 1974 (Extracted Page 394, See Footnote) ............ 15

Exhibit H, Extermination Order, by Dale A. Whitman, BYU Harold B.Lee Library, Extracted and Printed 11/28/2014 ................................ 15

Exhibit I The Church: A BriefHistory, Extracted and Printed 2/4/2014 ......... 15

Exhibit J Primary Source Reading: Patrick Henry s Speech to the VirginiaConvention ........................................................................................ 15

Exhibit K, Mormon Church Backs Gay Rights Bill, by CBSNews AP, 11November 2009 ............................................................................... 12

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Exhibit L Catholic Charities Ceases Adoption 7 March 2006 Edition of ThePilot ................................................................................................

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IDENTITY OF AMICUS: Duane Morley Cox, a 54 year resident ofUtah, holds BS &

MS Degree in Mechanical Engineering, and is a devout Christian member of the Church

of Jesus Christ ofLatter Day Saints (LDS) who holds the Priesthood and can perform

rites that clergy in other Christian Faiths perform. He has twice sought election to the

Utah House, desires to seek election to office in the future, and voted in favor ofUtah's

Amendment No.3. His Faith teaches, and he believes, that Marriage is between a man

and woman, and that God does not approve of same sex unions.

And God said, Let the earth bring forth the living creature after his kind, cattle,and creeping thing, and beast of the earth after his kind: and so it was 00 And godsaid, Let me make man in our own image after our likeness: and let them havedominion 00 So God created man in his own image, in the image ofGod created hethem; male and female created he them. And god blessed them, and God said untothem, Be Fruitful, and multiply, and replenish the earth and subdue it, ... Genesis1:24-28 Therefore shall a man leave his father and his mother, and shall cleaveunto his wife: and they shall be one flesh. Genesis 2:24 (See also Matt 19:5 andMark 10:7 Thou shalt love thy wife with all thy heart, and shalt cleave unto herand none else. D&C 42:22, Given 9 Feb 1831

If a man lieth with mankind, as he lieth with a woman, both of them havecommitted an abomination; they shall surely be put to death ... Leviticus 20:13And if a man lieth with a beast he shall surely be put to death Leviticus 20:15

His Faith teaches, and he believes, that God has created many Mansions

dispersed across three degrees ofGlory known as the celestial, terrestrial, and telestial

kingdoms as revealed in ancient and modem scripture. The celestial being the highestPg 1



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kingdom, which requires that men and women be married together under a new and

everlasting covenant of marriage in order to have an increase in the afterlife.

Christ said, In my Father's house are many mansions: if it were not so, I wouldhave told you. I go to prepare a place for you. John 14:2 Let not thy hearts betroubled; for in my Father's house are many mansions, and I have prepared a placefor you; ... D C 98:18 There are also celestial bodies, and bodies terrestrial:but the glory of the celestial is one, and the glory of the terrestrial is another.There is one glory of the sun, and another glory of the moon, and another glory ofthe stars: for one star differeth from another star in glory. st Corinthians 15:40-4 That bodies who are of the celestial kingdom may possess it forever and ever,for, for this intent was it made and created, and for this intent they are sanctified.And they who are not sanctified through the law which I have given unto you,even the law of Christ must inherit another kingdom, even that of a terrestrialkingdom, or that of a telestial kingdom. For he who is not able to abide the law ofa celestial kingdom cannot abide a celestial glory. And he who cannot abide thelaw of the terrestrial kingdom cannot abide a terrestrial glory. And he who cannotabide the law of a telestial kingdom cannot abide a telestial glory; therefore he isnot meet for a kingdom of glory and must abide a kingdom which is not a kingdomof glory. D C 88:20-24 In the celestial glory, there are three heavens ordegrees; And in order to obtain the highest, a man must enter into this order of thepriesthood [meaning the new and everlasting covenant of marriage]; And if hedoes not, he cannot obtain it. He may enter into another, but that is the end of hiskingdom; he cannot have an increase . D C 131:1-4 [Insert in Original]

This new and everlasting covenant of Marriage is based upon ancient scripture.

Verily I say unto you, Whatsoever ye shall bind on earth shall be bound inheaven: and whatsoever ye shall loose on earth, shall be loosed in heaven. Matt.18:18

This makes it clear that in order to qualify for the highest level of the celestial

kingdom a man and a woman must be 'Married under Priesthood authority for Time

and Eternity instead of until Death Do Y e Part , as is the custom of civil ceremoniesPg 2



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and virtually all other religions. These Marriages for Time and Eternity are sacred

ceremonies where faithful members ofthe LDS Faith are Married in one ofthe 4

operating Temples of the LDS Faith, 79 ofwhich Temples are located in 37 States.

And so, Amicus, on 5 August 1960, was Married to his First wife for Time and

Eternity in the Logan, Utah, LDS Temple, and as part of this ceremony, he made a

sacred Covenant with his God to support God s Plan, even at the peril o his life. God s

Plan is for man to marry a woman to create offspring (which same sex couples can not

do), and to be Married for Time and Eternity so that they can inherit a Mansion in

the celestial kingdom where they can dwell with God and have eternal increase .

But God loves all of his children, and has prepared a place, the telestial kingdom,

a place for those who practice sodomy in violation of God s command.

And again we saw the glory of the telestial, which glory is that of the lesser ...these are those that are thrust down to hell .... who shall not be redeemed from thedevil until the last resurrection ... these are they ... who receive ... of the Holy spirit... these are they who are ... whoremongers ... for they shall be judged according totheir works, and every man shall receive according to his own works, his owndominion, in mansions which are prepares; And they shall be servants of the mostHigh, but where God and Christ dwell they cannot come .. D C 76:81-113,

Amicus 's religious beliefs and their free exercise deserves to be protected.

religious beliefs need not be acceptable, logical, consistent, or comprehensible toPg3



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others in order to merit first Amendtnent protection [Citations Omitted] Churchof The Lukumi Babalu Aye v. Hialeah, 113 S.Ct. 2217, Pg. 2225 (1993)

AMICUS INTEREST: His interest is in not having his Faith brought into conflict with

the same sex 4th Amendment rights declared in the Decision of the Court below. He

maintains that Utah's Constitutional m e n ~ m e n t No.3 in its Operation , protects his

1st Amendment rights from discrimination lawsuits by same sex couples, without

establishing a religious Test that precludes his ability to seek elected office orpositions of Public Trust. He maintains that the Decision defeats and voids all

protections, whether Constitutional or statutory in every state, including Utah, because the

declaration of a 4th Amendment protection for same sex Marriage becomes the Law

of the Land which State enacted statutes cannot nullify, and further that the Decision

establishes a religious Test in violation of Article VI 3 which precludes him from

seeking office or positions of Public trust.

AUTHORITY TO FILE: Amicus voted for Utah's Amendment No.3 in order to protect

his Religious rights, which Amendment No.3 was passed by the people under procedures

enacted by the Utah Legislature, and it 'Operates to protect his st Amendment rights,

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which Operation demonstrates the object or intent of Utah's Amendment No 3

Apart from the text, the effect of a law in its real operation is strong evidence ofits object. Church of The Lukumi Babalu Aye v City of Hialeah, 113 S.Ct.2217, Pg. 2228 (1993)The U.S. Constitution reserves to the State of Utah and/or the people the power to

regulate Marriage because it is not one of the enumerated powers granted to Congress

or the Courts, and the 14th Amendtnent rnandates that Utah protect 1st Amendment rights.

The Free Exercise Clause of the First An1endment, which has been applied to theStates through the Fourteenth Amendment, [Citations Omitted] provides thatCongress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof Church of The ~ u k u m i Babalu Aye vCity of Hialeah, 113 S.Ct. 2217, 2225, (1993)

Amicus has authority to file this Brief because the Decision violates the gth and

lOth Amendments to the U.S. Constitution and usurps his rights guaranteed thereunder tohelp determine how his 1st Amendtnent rights should be protected, which Decision also

turns the Courts into a prohibited S u p e r l e g i s l a t u r e ' ~ , while also establishing a prohibited

religious Test in violation of Article VI of the U.S. Constitution.

STATEMENT OF PREPARATION: Atnicus is ProSe and is unrepresented. All

research, preparation filing efforts and expenses are solely the work of Amicus.

ARGUMENTS:Pg 5



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I. The Court below was not properly briefed: Because the Court below was not

adequately briefed on the issue of religious freedom, the findings of the Decision are

not accurate as regards to its impact upon religious institutions or their membership.

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

The Court below then proceeded to make a su sponte analysis, but the Supreme

Court has held that a vigorous prosecution and a vigorous defense are essential.

Sound judicial decision making requires 'both a vigorous prosecution and avigorous defense' and a constitutional rule announced sua sponte is entitled to lessdeference than one addressed on full briefing and argument. Cf. Lander v.United States, 358 U.S. 169, 173 (1958) (declining to address an important andcomplex' issue ... and the court thought it 'should have a full argument before itdealing with the question. ') Church of The Lukumi Babalu Aye v. City ofHialeah, 113 S.Ct. 2217, Pg. 2247 (1993)

And the Supreme Court has shown how to correct such deficiencies.

We appoint H. Bartow Farr III to brief and argue in support of the Eleventhcircuit's judgement with respect to severability, and Robert A Long to brief andargue the proposition that the Anti-Injunction Act bars the current challenges to theindividual mandate. Footnote in Nat. Fed. Of Ind. Businesses v. Sebelius, 567U.S ._ (2012) as given on Pg 11 of Slip Opinion (See Exhibit A)Without adequate briefing, the oth Circuit must reverse the Decision below.

II. Utah s Amendment No. 3 Protects 1st Amendment Ri :hts: The Court below held:Pg6



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The court agrees with Utah that regulationof marriage has traditionally been theprovince of the states, and remains so today. The issue the court must address inthis case is not who should define marriage, but the narrow question of whetherUtah's current definition of marriage is permissible under the Constitution.Decision Pg 1

But where the States are mandated through the 1h Amendment to protect st

Amendment rights, the question that the Court below should have focused upon was

whether Utah's Amendment No 3 Operated to protect the st Amendment rights of

Religious entities. clergy. employees. property of religious entities. or even individuals.The court below further error's when it states:

Since 2003, every other state has legalized same-sex marriage or, like Utah,passes a constitutional amendment or other legislation to prohibit same-sexunions. Decision Pg. 9

The error being that Utah 's Amendment does not even use the words same-sexanywhere therein. Rather, it protects the st Amendment rights and the free exercise

thereof by adopting the traditional definition of Marriage as being between a man and a

woman that has existed for thousands of years, which precludes any claims or causes of

action because of alleged discrimination. Such stratifications in our society are common,

for instance, we have car drivers licenses, motorcycle licenses, boat licenses, pilots

licenses etc, so what's wrong with Marriages between a man and a woman and somePg7



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other designation for same sex relationships? An1endment No 3 works because there is

no government mandated equivalency between same sex and opposite sex Marriage .

To see this more clearly, we need only to understand what happened in New Jersey

when that State changed the definition of Marriage'' to include the non-traditional union

of same sex couples. Two lesbian couples, after being denied the use of the Methodist

owned Ocean Grove Camp Meeting Association property for their civil union

ceremonies, filed complaints with the State Division of Civil Rights, and as a result, the

state commissioner of environmental protection declined to recertify the tax exemption

on a part of the Association property under the States Green Acres Program Exhibit B)

After which, New Jersey adopted statutory protections to protect st Amendment rights:

No member of the clergy of any religion authorized to solemnize marriage and noreligious society, institution or organization in this State shall be required tosolemnize any marriage in violation of the free exercise of religion guaranteed bythe First Amendment to the United States Constitution or by Article 1 paragraph 4of the New Jersey Constitution. No religious society, institution or organization inthis State serving a particular faith or denomination shall be compelled to providespace, services, advantages, goods, or privileges related to the solemnization,celebration or promotion of marriage if such solemnization, celebration orpromotion of marriage is in violation of the beliefs of such religious society,institution or organization. No civil claim or cause of action against any society,institution or organization, or any employee thereof, shall arise out of any refusalto provide space, services, advantages, goods, or privileges pursuant to thissection. No state action to penalize or withhold benefits from any such religioussociety, institution or organization, or any employee thereof, shall result from anyrefusal to provide space, services, advantages, goods, or privileges pursuant to this

Pg 8



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section. Id. Exhibit B, Pg 3

Later, New York enacted their Marriage Equality Act, declaring that Marriage

was to be ''valid regardless ofwhether the parties to the marriage are of the same or

different sex Exhibit C, Pg 2 , and statutory st Amendment protections were included:

Notwithstanding any other provisions of the law ... a corporation shall bedeemed to be in its nature distinctly private and therefore, shall not be required toprovide c c o m m o d t i o n s ~ advantages, facilities or privileges related to thesolemnization or celebration of a marriage A refusal to provideaccommodations, advantages, facilities or privileges in connection with sectionten-a of this article shall not create a civil claim or cause of action Pursuant tosubdivision ... nothing in this article shall be deemed or construed to prohibit anyreligious or denominational institution or organization, or any organizationoperated for charitable or educational purposes, which is operated, supervised orcontrolled in connection with a religious organization from limiting employment orsales or rental of housing accommodations or admission to or giving preference topersons of the same religion or denomination or from taking action calculated topromote the religious principles for which it is established or maintained. Id., Pg.@ 6 thru Pg. 4@ 2 ... no clergyman or minister ... shall be required to

solemnize any marriage when acting in his or her capacity under this subdivisionA refusal by a clergyman or minister to solemnize any marriage under thissubdivision shall not create a civil claim or cause of action. Id., Pg 5@ 10-16

Thus it is obvious that Utah's simple Constitutional definitional approach and New

York and New Jersey's more complex statutory schemes both provide st Amendment

protections for religions. But the Decision makes no findings of fact that Utah'sConstitutional amendment provides such protections because religious issues were not

properly briefed or analyzed, which creates grounds for reversal by the 1oth Circuit.Pg9



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III. The Decision of the Court below usurps Utah's and its citizens ri&hts inviolation of the th and lOth Amendments to the Constitution.

Now, some may believe and say that all Utah has to now do is pass protective

statutes like in New York and New Jersey to protect st Amendment religious freedoms.

But that's utter nonsense because such statutes would be unconstitutional on their face or

as applied because the Court below has declared to exist a 14th Amendment right for same

sex couples to be Married . Article VI of the Constitution declares the Constitutionis the Law of the Land , and .. the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding . I d. Thus

Utah can no longer use any State action to protect st Amendment religious rights as

reserved to the States and people by the 9th and lOth Amendments through the 14th Am.

But Utah will be in great company because all other States, including New Jersey

and New York, will have their statutory or Constitutional protections voided because they

cannot nullify the newly created 14th amendment right of same sex couples to Marry .

Therefore, the Operation of the Decision makes clear its true intent. t is to

burden only religion, churches, clergy, employees and even God loving members thereof

with discrimination lawsuits which the States and Congress will be powerless to stopPg 1



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(Exhibit A). Religious entities will be compelled to discontinue services (Exhibit L) and

Marriages by their own faithful members on their properties and in their Churches,

Meeting Houses and Temples in order to avoid the burden and cost of litigation and/or to

avoid being required to Marry or celebrate same sex Marriages against their beliefs

And all clergy will be subject to lawsuit for refusal to perform same sex Marriages .

Therefore it must be concluded that the Decision holding Utah's Amendment

No 3 is Unconstitutional on grounds that the newly created 4th Amendment right of

same sex couples to Marriage actually Operates to usurp the powers reserved to the

States and the people in violation of the gth and Oth Amendments to the Constitution.

The oth Circuit must reverse the Decision of the Court below.

IV. The Decision the Supreme Court to become a Superlea:islature

Mr. Justice Frankfurter has warned of the very narrow role and duty of the Courts

in cases involving the nullification of legislative actions.

In neither situation is our function comparable to that of a legislature or are wefree to act as though we were a superlegislature. Judicial self-restraint is equallynecessary whenever an exercise of political or legislative power is challenged.Barnette, 319 U.S. 624, 648 (S. Ct. 1943) Justice Frankfurter dissenting

... responsibility for legislation lies with the legislatures, answerable as they arePg



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directly to the people, and this Court's only and very narrow function is todetermine whether within the broad grant of authority vested in legislatures theyhave exercised a judgement which for reasonable justification can be offered.Barnette, 319 U.S. 624, 649 (S. Ct. 1943) Justice Frankfurter dissenting

Amicus argues that although the Court below failed to adequately brief, argue

and analyze religious issues, it is clear that Utah had a reasonable justification for taking a

definitional approach to protecting st Amendment religious rights be defining Marriage

as being solely between a man and a woman. t was simple, narrow, and did not mention

same sex rights, in fact its narrow tailoring makes it possible for same sex couples to

perfect peripheral rights by other legislative enactments as later happened Exhibit K).

In contrast, the Decision of the Court below voids all existing and future State

Constitutional and statutory protections of st Amendment rights associated with the

regulation of Marriage . Thus the Decision is argued to target only religion and the

free exercise thereof, leaving only the Supreme Court as the final arbitrator of when and

if same sex couples can or can t sue to gain access to religious facilities to perform or

celebrate their Marriages , and can or can t sue clergy, ministers, bishops etc who refuse

on religious grounds to participate or perform such Marriages . Such a circumstance is

similar to 200 year effort by the U.S. Supreme Court to harmonize the conflicting rightsPg 2



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of the immunity of States from suit under the 11th Amendment and the rights of

individuals to sue under the 14th Amendment (See Annotation- Supreme Court s

Construction Of Eleventh Amendment ... 106 L. Ed2. 660). The framers of the

Constitution knowingly created this controversy while the instant controversy is the result

of over-reach by the Court below. Compelling the question: Which is the most or least

protective of st Amendment Rights, Utah's Amendment No.3 or the Decision ?

When the State enacts legislation [or a Court makes a decision] or unintentionallyplaces a burden upon religiously motivated practice, it must justify that burden by'showing that it is the least restrictive means of achieving some compelling stateinterest.' Thomas v. Review Board o ndiana employment Security Div., 450U.S. 707 718 (1981). See also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).Church of The Lukumi Babalu Aye v City of Hialeah, 113 S.Ct., 2217, Pgs.2250 - 2251 (1993), Justice Blackmon, with whom Justice O Connor joins,concurring in judgment [Insert added to make the question]

Amicus argues that Utah's Amendment No.3 is a very simple. elegant approach to

protecting st Amendment rights while the Decision below destroys the ability of all of

the 50 States to protect st Amendment religious rights. And in the place of this

destruction (which burdens only religions, clergy, employees etc with lawsuits), the

Supreme Court is left to re-construct the same protections as they exist today through new

case precedents which will surely read suspiciously like the existing New York and NewPg 13



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Jersey statutory protections which the Decision below now destroys. f that doesn't

constitute an instance where the Court's establish themselves as a superlegislature ,

Amicus is without common sense. The Decision below must be reversed on grounds

that the Decision exemplifies a violation of the principle of Judicial Self-Restraint.

V. The Decision creates a r e l i ~ : i o u s Test , violatin& Article VI o the U.S. Const.

f the Decision of the Court below is upheld, Amicus can never in good conscience

seek or hold public office or a position ofPublic Trust because he has made sacred

covenants with his God to support only God's Plan, even at the expense o his life.

Under New York's Marriage Equality Act, three elected officials gave up their

positions or refused to give out marriage licenses on religious grounds (Exhibits D-F).

For them, the New York requirement that all Marriages were to be treated equally

violated their religious convictions, and Amicus is similarly affected by the Decision .

Amicus could no longer swear to uphold the Constitution as is required by Article

VI o the Constitution, because to do so he must support and sustain Marriage asincluding same sex couples which would be contrary to his covenant with God to sustain

God's Plan even at the peril o his own life. To do otherwise he would become anPg 4



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Anti-Christ at the cost of his oppo11unity to achieve the highest level of the celestial

kingdom where God dwells, and his prornised future increase . Amicus has no desire

to suffer God s displeasure. Some might question the sincerity of Amicus, but in his

Faith, persecution has been their shadow. In 1832, Issac Morley, an ancestor of Amicus,

offered his life to stop the violence of mobs against the early members of his Faith

(Exhibit G). In 183 8 Governor Boggs of Missouri signed an Extermination Order''

designed to drive the LDS faithful from the State or Exterminate them (Exhibit H). In

1844, mobs killed Joseph Smith, the first Prophet of the LDS Church (Exhibit 1 . But

our founding fathers likewise risked their lives for what they believed in including Patrick

Henry, who declared at the Virginia Convention: I know not what course others may

take, but as for me, give me liberty or give me death (Exhibit J .

The Decision creates a religious Test in violation of Amendment VI of the

Constitution, which is grounds for reversal (McDaniel v. Paty, 435 U.S. 618).

Conclusion: The Decision of the Court below seeks to fix something that isn t brokebut instead destroys Constitutional prerogatives and st Amendment religious protections.

The decision must be reversed without remand on the grounds presented herein.Pg15 } ~. 4 / . ~ J Y l -



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UNITED STATES COURT OF PPE LSFOR THE TENTH CIRCUIT

Certificate of Service

DEREK KITCHEN individuallyMOUDI SBEITY individuallyKAREN ARCHER individuallyKATE CALL individuallyLAURIE WOOD individually andKODY PARTRIDGE individually

Plaintiffs - Appelleesv

GARY R. HERBERT in his officialcapacity as Governor of Utah andSEAN D. REYES in his officialcapacity as Attorney General of Utah

Defendants - AppellantsandSHERRIE SWENSEN in her officialcapacity as Clerk of Salt Lake County

Defendant.

Case No. 13-4178

Certificate of Service for Brief of Amicus Curiae Duane Morley Cox.

Pg 1

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CERTIFIC TE OF SERVICEI hereby certify that on 10 February 2014, that I filed by First Class Mail,

Postage Prepaid, the foregoing to the oth Circuit Court, and also by First ClassMail, Postage Prepaid to the following:Gene Schaerr, Special Assistant Utah Attorney GeneralBrian L Target, ChiefDeputy Utah Attorney General,Stanford E Purser, Assistant Attorney GeneralParker Douglas, ChiefDeputy Attorney GeneralPhillipS. Lott, Assistant Utah Attorney GeneralP.O. Box 140856160 East 3 00 SouthSalt Lake City, Utah 84114-0856801-366-0100 [email protected] A TomsicJames E MaglebyJennifer Fraser ParrishMAGLEBY GREENWOOD. P.C.170 South Main Street, Suite 850Salt Lake City, Utah 841 0 1Ralph ChamnessDarcy M GoddardSalt Lake County District Attorneys2001 South State, S3 700Salt Lake City, Utah 84190Kathryn D KendellShannon P MinterDavid C CadellNational Center for Lesbian Rights870 Market St., Ste. 370San Francisco, CA 94102

Pg

tomsic@rngplaw [email protected]@rngplaw. corn

[email protected]@slco.org

[email protected]@[email protected]



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Jennifer L Bursch, Amici CuriaeInstitute for Marriage and Public PolicySuite 1002491 0 Las Brisas RoadMurrieta, Calif. 92562John J BurschWarner Norcross Judd LLPSte. 900111 Lyon Street, NW.Grand Rapids, MI. 49503Monte N. StewartSte. 10012550 W Explorer Dr.Boise, Id 83 713

Date: 10 February 2014

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[email protected]

jbursch@wnj .com

Stewart@stm-law com



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UNITED STATES COURT OF PPE LSFOR THE TENTH CIRCUIT

Certificate of Service

DEREK KITCHEN individuallyMOUDI SBEITY individuallyKAREN ARCHER individuallyKATE CALL individuallyLAURIE WOOD individually andKODY PARTRIDGE individually

Plaintiffs - Appelleesv

GARY R. HERBERT in his officialcapacity as Governor of Utah andSEAN D. REYES in his officialcapacity as Attorney General of Utah

Defendants - AppellantsandSHERRIE SWENSEN in her officialcapacity as Clerk of Salt Lake County

Defendant.

Case No. 13-4178

Certificate of Service for Appendix for Brief of Amicus CuriaeDuane Morley Cox.

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; ; ; : : .



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CERTIFIC TE OF SERVICEI hereby certify that on 10 February 2014, that I filed by First Class Mail,

Postage Prepaid, the foregoing to the 1oth Circuit Court, and also by First ClassMail, Postage Prepaid to the following:Gene Schaerr, Special Assistant Utah Attorney GeneralBrian L. Target, ChiefDeputy Utah Attorney General,Stanford E. Purser, Assistant Attorney GeneralParker Douglas, ChiefDeputy Attorney GeneralPhillip S. Lott, Assistant Utah Attorney GeneralP.O. Box 140856160 East 3 00 SouthSalt Lake City, Utah 84114-0856801 3 66-0 100 spurser@utah. govPeggy A. TomsicJames E. MaglebyJennifer Fraser ParrishMAGLEBY GREENWOOD. P.C.170 South Main Street, Suite 850Salt Lake City, Utah 84101Ralph ChamnessDarcy M GoddardSalt Lake County District Attorneys2001 South State, S3 700Salt Lake City, Utah 84190Kathryn D. KendellShannon P. MinterDavid C. CodellNational Center for Lesbian Rights870 Market St., Ste. 370San Francisco, CA 94102

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tomsic@mgplaw commagleby@tnpglaw [email protected]

rchamness@sl [email protected]

[email protected]@[email protected]



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Jennifer L. Bursch Amici CuriaeInstitute for Marriage and Public PolicySuite 10024910 Las Brisas RoadMurrieta Calif. 92562John J BurschWarner Norcross Judd LLPSte. 900111 Lyon Street NW.Grand Rapids MI. 49503Monte N. StewartSte. 10012550 W Explorer Dr.Boise Id 83 713

Date: 10 February 2014

[email protected]

[email protected]

[email protected]

ici Curiae


13-4178 amicus brief of duane morley cox

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