2:14-cv-00055 #33

JONI J. JONES (7562)

KYLE J. KAISER (13924) Assistant Utah Attorneys General

PARKER DOUGLAS (8924)

General Counsel and Chief of Staff

OFFICE OF THE UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101

E-mail: [email protected]

[email protected]

[email protected]

Attorneys for State Defendants

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JONELL EVANS, STACIA IRELAND,

MARINA GOMBERG, ELLENOR

HEYBORNE, MATTHEW BARRAZA,

TONY MILNER, DONALD JOHNSON,

and CARL FRITZ SHULTZ,

Plaintiffs, v. STATE OF UTAH, GOVERNOR GARY

HERBERT, in his official capacity; and

ATTORNEY SEAN REYES, in his official

capacity,

Defendants.

DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ PROPOSED

SUPPLEMENT TO MOTION FOR

PRELIMINARY INJUNCTION

Case No. 2:14-cv-00055-DAK

Judge Dale A. Kimball

Defendants the State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes,

(“Defendants” or the “State” or the “State of Utah”) by and through counsel, Joni J. Jones and

Case 2:14-cv-00055-DAK Document 33 Filed 04/16/14 Page 1 of 8

mailto:[email protected]



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Kyle J. Kaiser, Assistant Utah Attorneys General, and Parker Douglas, General Counsel and

Chief of Staff, provide the following response to Plaintiffs’ Supplement to Motion for

Preliminary Injunction. (Docs. 32, 32-1, 32-2.)

RESPONSE TO PLAINTIFFS’ FACTUAL SUPPLEMENT

Defendants do not dispute the supplemental facts set out in Plaintiffs’ [Proposed]

Supplement. (Doc. 32-1 at 2–4.) However, Plaintiffs have omitted certain relevant facts, which

Defendants set out below.

1. On January 27, 2014, the Honorable Robert P. Faust, Judge for the Third Judicial

District of Utah, heard argument in Doe v. State, Case No. 140900542. (See

Transcript of Hearing on Motion for TRO, redacted portions of which are attached as

Exhibit 1.)

2. Shane Marx, who acted as counsel of record in the Doe case, (see Compl. for

Extraordinary, Injunctive, and Declaratory Relief, a redacted copy of which is

attached as Exhibit 2), is also adoption counsel for Matthew Barraza and Tony

Milner, who are Plaintiffs in this action. (See [Proposed] Supplement to Mot. for

Prelim. Inj., (Doc. 32-1); see also Decl. of Shane Marx (Doc. 32-2).)

3. The events relating to Mr. Barraza’s and Mr. Milner’s state court adoption proceeding

form the basis for the collective Plaintiffs’ supplemental filing. (See [Proposed]

Supplement to Motion for Preliminary Injunction, Doc. 32-1; see also Declaration of

Shane Marx, Doc. 32-2.)

4. Like Mr. Barraza and Mr. Milner, the Doe petitioners are a same-sex couple who

married in Utah prior to the United States Supreme Court issuing its stay in Herbert v.


https://ecf.utd.uscourts.gov/doc1/18303024279



https://ecf.utd.uscourts.gov/doc1/18313024280?page=2#page=2





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Kitchen, 134 S. Ct. 893, 2014 WL 30367 (U.S. Utah). (See Doe v. State Complaint,

Ex. 2, ¶ 4.)

5. In Doe, Petitioners requested, among other things, that the district court direct the

State to execute a declaration of voluntary parentage upon the birth of the child with

whom Ms. Doe was then-pregnant. (See Doe Complaint, Ex. 2, ¶ 1.)

6. They also moved the district court to enter a TRO “restraining enforcement of Utah

Code §§ 30-1-2(5) and 30-1-4.1 and Utah Constitution Article 1, Section 29, as

applied to plaintiffs’ marriage.” (Doe Motion for Temporary Restraining Order,

redacted copy attached as Exhibit 3.)

7. After hearing argument on January 27, 2014, the Honorable Judge Faust denied the

Doe Plaintiffs’ request for a restraining order: “This Court is not making a

determination on the status of marriages during this 17 day time period. That

issue . . . is being addressed by the federal courts. [N]or is the Court making any

determination at this time if any rights vested by virtue of the marriages performed

during the time period of [the Kitchen v. Herbert] injunction. (See Tr. of Hr’g on

Mot. for TRO, Ex. 1, at 42–43.)

8. Because the Doe complaint included Federal Constitutional claims, Defendants

removed the case to federal court, and then filed a motion to consolidate Doe with

Evans. (See Doc. 12.)

9. The Doe Plaintiffs then voluntarily dismissed their complaint. (See Doc. 17.)


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RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL LEGAL ANALYSIS

Plaintiffs assert they are confident that the Utah Department of Health—which has filed a

writ with the Utah Supreme Court asking it to determine whether the Department is required to

comply with Judge Stone’s order to amend J.’s birth certificate—lacks standing. (Doc. 32-1 at

4.) Plaintiffs’ contention is not based on a legal authority but rather a statement of confidence,

which carries no legal effect, and the Utah Supreme Court will surely determine the issue of

standing as any court must determine whether it has jurisdiction. Gregory v. Shurtleff, 299 P.3d

1098, 1102-03 (Utah 2013) (noting Utah Constitution has no “case or controversy” restriction

and that Utah recognizes public interest standing in matters of great constitutional or public

importance). For this reason, Plaintiffs’ speculation regarding the Utah Department of Health’s

standing or lack thereof is speculative, and clear Utah Supreme Court authority requires precisely

the opposite of Plaintiffs’ position on standing.

Plaintiffs also assert that Judge Stone’s ruling is persuasive and that it highlights that they

are likely to succeed on the merits. (Doc. 32-1 at 4–5.) However, as set out in Defendants’

supplemental facts, Judge Faust agreed with Defendants’ legal position: whether Utah laws

prohibiting the State from recognizing same-sex marriage are unconstitutional is being decided

in the federal courts by the Tenth Circuit Court of Appeals, and Utah cannot be required to

recognize same-sex marriages until the issue is resolved. (See Tr. of Hr’g, Ex. 1, at 42–43 (“By

issuing a temporary restraining order the Court would be, by implication, making a

determination in part on those matters and issues being determined at the federal level.”) In

addition, Judge Faust ruled that the petitioners would not be irreparably harmed if they were

required to wait for Kitchen to be resolved before their same-sex marriage was recognized. (Id.




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at 42.) If Judge Stone’s ruling demonstrates that Plaintiffs are likely to succeed on the merits, as

they assert, then they ought to similarly concede that Judge Faust’s ruling demonstrates that they

are not likely to succeed on the merits.

Significantly, Plaintiffs did not provide this Court with a copy of Judge Stone’s ruling in

In re J.B. It is therefore not possible for the Court (or State Defendants) to actually evaluate

whether Judge Stone’s reasoning was sound and should apply in the Evans case. See Fincher ex

rel. Fincher v. Prudential Prop. & Cas. Ins. Co., Nos. 08-1109, 08-1159, 374 Fed. App’x 833,

840 n.9 (10th Cir. April 20, 2010) (ord. & j. not selected for publication) (considering

unpublished non-binding authority “persuasive because of its reasoned analysis”). Without a

written order to consider, this Court is left to speculate as to the basis of the decision. Did Judge

Stone independently determine that Utah’s laws banning recognition of same-sex marriage are

unconstitutional and thus could not bar Mr. Milner’s and Mr. Barraza’s adoption? Did Judge

Stone find that these plaintiffs’ rights to their marriage vested immediately once their marriage

was solemnized, based on Utah common law and thus the marriage had to be recognized? The

legal rationale for Judge Stone’s ruling is not known. Therefore, it is not possible to say whether

his ruling is persuasive as to the legal issues in Evans.

The Department of Health’s decision to petition the Utah Supreme Court to determine

whether it must comply with Judge Stone’s order is not “a dramatic expansion of [the State’s]

policy to refuse to recognize Plaintiffs’ legally valid marriage.” (Doc. 32-1 at 5.) Rather, the

Department’s position is consistent with the advice Governor Herbert set out on January 8, 2014:

Utah cannot take action to extend benefits to same-sex marriages performed before the United

States Supreme Court issued its stay that would require the state to “recognize” the marriage






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after the stay was issued. (See Gov. Herbert’s Letter to Cabinet Members, January 8, 2014,

Exhibit 4.) The specific example that Governor Herbert used as an illustration in the letter to his

cabinet is remarkably similar to the situation the Department of Health faces. In his letter,

Governor Herbert explained:

For example, if a same-sex married couple previously changed their names on

new drivers licenses, those licenses should not be revoked. If a same-sex couple

seeks to change their names on drivers licenses now, the law does not allow the

state agency to recognize the marriage[;] therefore the new drivers licenses

cannot be issued.

(Id. (emphasis added).) Plaintiffs themselves attached this letter to their Complaint; they were no

doubt aware of the State’s position that the State would not issue state documents reflecting the

same-sex couples as legally married. (See Ex. D to Pls’ Compl., Doc. 1, at page 90 of 106.)

Nor does the Department of Health’s action “directly contradict” Defendants’ counsel’s

statements at oral argument that the State is not seeking to intervene in Plaintiffs adoption. (Doc.

32-1 at 5.) In fact, the Department of Health has not requested that the Utah Supreme Court

invalidate or rescind Mr. Milner’s and Mr. Barraza’s adoption. Rather, the Department’s

position is that so long as the stay of Kitchen v. Herbert is in place, the Department cannot

recognize their marriage, which includes declining to issue a birth certificate with their names as

parents of J.

Because neither the Attorney General nor any executive agency has been provided with

the rationale for the state court’s order, it is difficult to comprehend the basis for the decision,

given the clear language of Utah law as it stands today. Nevertheless, this position is not an

attack on the adoption itself. Mr. Milner and Mr. Barraza are free to use the adoption order with

any entity not constitutionally prohibited from giving effect to same-sex marriages. For





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example, they could use the adoption or to entitle them to deductions on their federal income tax

filings, or to obtain other federal benefits to which their child, or they as parents of the child,

might be entitled. They could also, for example, present the order of adoption to a private

employer in order to obtain health care benefits for their adopted child. Simply put, the State is

not seeking to take any action to interfere with or judicially dissolve or alter the adoption.

Contrary to Plaintiffs’ loud and clear protestations, Utah is not interfering with Mr.

Milner and Mr. Barraza’s adoption. Defendants understand that by using rhetorical strategies

such as asserting the State is “striking a blow at Mr. Milner and Mr. Barraza’s child and their

very family structure” (Doc. 32-1 at 5 (emphasis added)), Plaintiffs appeal to emotion they no

doubt feel in this litigation, but argumentum ad populum and argumentum ad misericordiam are

classic logical fallacies upon which this Court cannot base its determination. United States v.

Silva, No. 1:11-CR-096-DN, 2013 WL6576788, at *11 (D. Utah July 31, 2013) (op. & ord. not

selected for publication) (noting the Tenth Circuit interpretive canon requiring judicial legal

determinations to follow tradition principles of logic (citing United States v. Jones, 49 F.3d 628

632 (10th Cir. 1995)). Defendants do not criticize Plaintiffs’ efforts, but seek to emphasize that,

despite the rhetoric, Defendants Attorney General Sean Reyes and Governor Gary Herbert, on

behalf of the State, have taken a consistent and fair position. Defendants believe this position—

state agencies not undergoing any specific action that requires the state agency to recognize a

same-sex marriage until Kitchen is resolved—is consistent with the current state of the law and is

the least harmful approach to all parties. Once a final resolution of Kitchen is reached, the state,

these plaintiffs, and the hundreds of other same-sex couples and their children, will know what

the law is regarding their marriages.



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CONCLUSION

Defendants do not object to Plaintiffs filing a supplement to their motion for preliminary

injunction. Defendants do believe Plaintiffs omitted relevant facts, and Defendants have

supplied those. Defendants also disagree with Plaintiffs’ characterization of what has occurred,

and have responded in order to correct the record. The Department of Health has sought

guidance from the Utah Supreme Court through the appropriate vehicle of an extraordinary writ.

The Department of Health was not a party to the adoption. As a non-party, a writ is its only

avenue to determine whether the Department is required to comply with an order which requires

it to recognize a same-sex marriage, in violation of Utah law currently in effect.

DATED this 16th day of April, 2014.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Kyle J. Kaiser

JONI J. JONES

KYLE J. KAISER

Assistant Utah Attorneys General

PARKER DOUGLAS

General Counsel and Chief of Staff

Attorneys for Defendants


EXHIBIT 1-

REDACTED TRANSCRIPT OF HEARING ON MOTION

FOR TEMPORARY RESTRAINING ORDER

JANUARY 27, 2014

Case 2:14-cv-00055-DAK Document 33-1 Filed 04/16/14 Page 1 of 46

Page 1

Motion for Temporary Restraining Order 1/27/2014

801-983-218050 West Broadway, Suite 900, Salt Lake City, UT 84101

Page 1



IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT OF SALT LAKE COUNTY, STATE OF UTAH

__________________________ ) DOE, ) ) Plaintiff, ) ) vs. ) Case No. 140900542 ) ) STATE OF UTAH, ) ) Defendant. ) __________________________)

Motion for Temporary Restraining Order Electronically Recorded on January 27, 2014

BEFORE: HONORABLE ROBERT FAUST Third District Court Judge


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1 APPEARANCES

2 For the Plaintiff: James M. Hunnicutt

3 DOLOWITZ HUNNICUTT, PLLC

4 299 South Main Street, Suite 1300

5 Salt Lake City, UT 84111

6 Shane A. Marx

7 DOLOWITZ HUNNICUTT, PLLC

8 299 South Main Street, Suite 1300


10 For the Defendant: Meb W. Anderson

11 UTAH ATTORNEY GENERAL’S OFFICE

12 160 East 300 South

13 P.O. Box 140856


15 Joni J. Jones

16 UTAH ATTORNEY GENERAL’S OFFICE

17 160 East 300 South

18 P.O. Box 140856 Salt Lake City, UT 84114

19

20

21

22

23

24

25


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1 SALT LAKE COUNTY, UTAH - JANUARY 27, 2014

2 HONORABLE RYAN HARRIS

3 P R O C E E D I N G S

4 THE COURT: Good afternoon. Let’s go ahead

5 and go on the record in case number 140900542. If

6 you’ll go ahead and put your appearances on the record,

7 please, and introduce me to who you have with you.

8 MR. HUNNICUTT: Shane Marx and Jim Hunnicutt

9 for the plaintiffs who are referred to as Doe and

10 Roe.

11 THE COURT: Thank you.

12 MR. ANDERSON: Meb Anderson, Your Honor, on

13 behalf of the state defendants. Seated to my left is

14 Joni Jones, also on behalf of the state defendants.

15 THE COURT: Thank you. To handle some

16 matters preliminarily, there was a request to have this

17 matter identified and listed as private. And the

18 Court, prior to the time that the State had an

19 opportunity to weigh in on that, went ahead and granted

20 the order. I don’t know who else we have here in the

21 courtroom, but if it’s - my understanding would be, if

22 this matter is private, we probably don’t let the

23 general public attend the hearing? Would that be a

24 correct understanding?

25 MR. ANDERSON: Yes, Your Honor. I believe


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1 everybody that’s here is with the Attorney General’s

2 Office.

3 UNIDENTIFIED FEMALE: Correct. We’re all

4 employees of the A.G.’s office.

5 THE COURT: Alright. Any objections?

6 MR. HUNNICUTT: No, Your Honor.

7 THE COURT: Alright.

8 MS. JONES: Your Honor?

9 THE COURT: Yes? Please.

10 MS. JONES: I just wanted to make - set the

11 record straight on one other matter. I contacted

12 plaintiff’s counsel and notified them. I don’t know if

13 you recall that I represented you in a matter about

14 four years ago. And I just advised them of that in

15 case they wanted to raise an objection. But just for

16 the record, they have been notified of that.

17 THE COURT: Alright. To me more particular,

18 I was sued in the federal court for actions that I took

19 as a state court judge in Texas and so the Attorney

20 General’s Office represented me in my official

21 capacity. Correct? Any other clarification we need on

22 the record? Counsel, does that case a problem or issue

23 or concern for you that you wish me to rescue myself?

24 MR. HUNNICUTT: No, Your Honor. We trust

25 that you’ll abide by the judiciary code and the


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1 standards applicable to you.

2 THE COURT: Alright. You’re both in

3 agreement with that as well? Alright. Okay. I

4 assume, then, you received all the documentation that

5 you need and that’s been filed in this case with

6 respect to the issues we’re here for today on this

7 temporary restraining order?

8 MR. ANDERSON: I believe so, Your Honor. We

9 received the motion for temporary restraining order,

10 and I believe we’ve got the complaint and all of the

11 relevant documents that the plaintiffs have filed. We

12 did file an opposition, that was just filed about five

13 or ten minutes before we left to come over here. I

14 don’t know if Your Honor has a copy of that?

15 THE COURT: I have not seen that. Would you

16 have any objection, after showing counsel, if I receive

17 that?


19 MR. ANDERSON: I provided a copy to counsel

20 already. There are two exhibits that are not included

21 here. May I approach, Your Honor?

22 THE COURT: You may. Thank you. Alright.

23 We’re here for a request for a temporary restraining

24 order. This matter is being governed under Rule 65.

25 Counsel, your burden. You have to prove the four


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1 elements as set forth in the rule.

2 MR. HUNNICUTT: Your Honor, needless to say,

3 my clients were elated when Judge Shelby struck down

4 Utah Same Sex Marriage Act. They - as quickly as they

5 could possibly get to a county clerk, went and obtained

6 a marriage license and they validly married under the

7 state of the law at that time, in the state of Utah,

8 the enforceable provisions of the law. The State here

9 is arguing that despite --

10 THE COURT: You’ll need to tell me what they

11 are arguing because I haven’t read it yet.

12 MR. HUNNICUTT: Okay.

13 THE COURT: So be (inaudible).

14 MR. HUNNICUTT: From my very brief review of

15 what they are arguing, they are arguing that when the

16 U.S. Supreme Court stayed the decision of Judge Shelby

17 17 or however many days later, that that in essence

18 invalidated all of the marriages that occurred while

19 that order was in effect. Further, they claim that by

20 recognizing and adjudicating this particular case that

21 it prejudices their rights in their appeal from Kitchen

22 v Herbert. Neither of those apply in this case. That

23 is a different case with different facts. The parties

24 are not (inaudible). They have - my clients have an

25 independent right to pursue their case despite Kitchen


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1 v Herbert and the stay that was granted in that case.

2 Our Utah Supreme Court has stated that the

3 protections afforded a person who are married in the

4 eyes of the law include the right to fulfillment of

5 certain procedural requirements in order to dissolve

6 that union. The state this in State v Hone as recently

7 as 2006. As part of this - the State here is asserting

8 their ability to selectively choose which marriages,

9 granted under its own law, they are required to honor.

10 They are choosing - they are trying to assert that they

11 don’t have to honor the marriages that were in effect -

12 that were effective during this stay. We’ve come to

13 this Court and respectfully disagree. We respectfully

14 assert that what the State has done is they have

15 reversed the (inaudible). Usually a state, in order to

16 attack a marriage, must bring an action in a court and

17 they must provide the opportunity for litigants or for

18 parties to that marriage to disagree, or an opportunity

19 to be heard. They haven’t done that here. They’re

20 basically saying regardless of whether your marriage

21 was valid at one time - and they don’t disagree that it

22 was valid for 17 days and that they recognized it for

23 17 days. They’re now saying that they don’t have to

24 honor the marriage that was granted under their own

25 laws.


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1 For a temporary injunction to issue - or a

2 temporary restraining order - we must show first that

3 my clients will suffer irreparable harm. My clients

4 are a married couple. They married on December 23rd.

5 Their marriage was valid and recognized by executives

6 until the 6th of January. Doe is nine months

7 pregnant. She is due to give birth on February 3rd.

8 While that due date is not firm, she could go at any

9 time, so long as the State doesn’t recognize their

10 marriage, the child that will be born as a result of

11 their planning as a married couple and their - all of

12 the rights that arose upon their marriage - will not be

13 recognized. Doe will be prevented the right to be

14 the presumptive parent - to be a presumptive parent, to

15 be a presumptive mother under our case law and under

16 the Uniformed Parentage Act. Moreover, our case law

17 defines irreparable harm as wrongs of a repeated and

18 continuing nature, or harms that are not compensable by

19 - in money. In this particular case, there’s nothing

20 that would recompense Doe if she is not considered

21 a parent on the birth of her child. She won’t have the

22 right to make decisions for her child. She won’t have

23 the right to make decisions for her partner, for her

24 spouse. And she’ll be deprived of all of those things.

25 This is not a speculative injury. This is an injury


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1 that is going to occur if the State does not recognize

2 her. She won’t be able to put her name on the birth

3 certificate. She won’t have the ability to sign a

4 voluntary declaration of co-parentage, as our Uniformed

5 Parentage Act would permit her - otherwise permit her.

6 Case law has always viewed the violation of

7 certain substantive due process rights as immediate and

8 irreparable harm. For example, our First Amendment

9 case law. We have cases out of the Tenth Circuit,

10 Pacific Frontier v Pleasant Grove City from 2005, that

11 provide that any - even a temporary violation of a due

12 process right or a substantive or a fundamental right

13 is in fact a irreparable harm that is subject to a

14 temporary restraining order or a preliminary

15 injunction.

16 To be clear, also throughout our case law we

17 have demonstrations that specific types of contracts

18 are enforceable through a temporary restraining order

19 and that violation of those contracts where they’ll

20 affect business interests, that those are immediate and

21 irreparable harms. So if something such as a business

22 interest can be considered immediate and irreparable,

23 something so sacred as the family unit and recognition

24 of the family unit by the State most definitely must,

25 must be considered a right that when it is not provided


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1 or not protected or not recognized, that this

2 immediately and irreparably harms a family.

3 As recently as Windsor and from the U.S.

4 Supreme Court we have case law saying or precedent

5 saying that when you distinguish between families who

6 are - who have been validly married, you’re not only

7 hurting the dignity and integrity of that family, but

8 you are harming the children that are born into those

9 families. That’s exactly what denying marriage to this

10 family will do.

11 There is no legitimate government interest in

12 denying or choosing not to recognize this family. It

13 does not promote familial stability. It does not

14 encourage them to become heterosexual. They have

15 chosen this relationship and they have chosen to have a

16 child together. They did this before the State

17 recognized them as married. Once the State did

18 recognize them as married, it cannot revoke that right

19 or the rights that were conferred to them without

20 providing some due process. The government, or the

21 Attorney General’s declaration that they’re going to

22 stop recognizing a certain right does not provide this

23 due process and it can’t be considered sufficient to

24 comply with the constitutional standards.

25 They have not only a procedural due process


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1 to be heard before the State can alter their rights,

2 but they have a substantive due right process to

3 marriage that was once recognized by this State, that

4 the State can’t intrude upon that fundamental right

5 once it’s granted.

6 They have an equal protection right. The

7 State is not saying that the marriages granted during

8 the late - last part of December and early part of

9 January, they’re not saying that heterosexual or

10 opposite married couples are in fact - that their

11 rights are not going to be recognized. But here they

12 are - they’re choosing not to recognize certain

13 marriages because of the identify of or the sex of the

14 citizens within those marriages. It simply is not

15 permitted.

16 Now, the State argues that the stay of the

17 U.S. Supreme Court stayed Kitchen v Herbert and stayed

18 recognition of this marriage - these marriages. And

19 while it may have stayed that opinion as of January

20 6th, a stay is meant to maintain the status quo, and

21 the status quo as of January 6th was that this - that

22 Doe and Roe were a married couple and the

23 State recognized those rights. A stay without any

24 analysis of the rights involved and the rights achieved

25 while a judgement is in place does not work to


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1 invalidate all of the rights that were achieved in the

2 interim.

3 This family will be immediately harmed. They

4 - the State is attacking their dignity as a family,

5 attacking their - you know, everything that they appear

6 to applaud as important in our society. You know,

7 these individuals have committed to one another, and

8 that they’ve chosen to enter in - voluntarily enter and

9 commit their lives to each other. And the State was a

10 third party to that marriage at one point.

11 Our case law under Hone, State v Hone, also

12 recognizes that the State is a third party to any

13 marital contract. But nowhere else in the law, in

14 contract law, would the State’s actions justify what

15 they’re doing here. A party to a contract, once it’s

16 entered and validly entered and recognized, the State

17 can’t - or one party can’t unilaterally declare that

18 the contract no longer exists or that they’re not bound

19 by their obligations under the contract, otherwise

20 there would be no basis for the contract in the first

21 place.

22 The injury to this family - the second prong

23 of a preliminary injunction of a temporary restraining

24 order is that the injury to this family outweighs any

25 harm to the State, or outweighs the damage that could


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1 be done to the State. Here they’re again asserting

2 that the Kitchen - that it will hurt their case in

3 Kitchen v Herbert. But as I said before, this case has

4 nothing to do with Kitchen v Herbert. It has different

5 facts. There is an entirely different issue. While

6 some of the issues do overlap, our case law provides

7 that even with the outcome in Kitchen v Herbert, if it

8 is a negative outcome for my clients and the Tenth

9 Circuit or the U.S. Supreme Court ultimately overturns

10 Judge Shelby’s decision, it does not affect this claim.

11 It does not affect the claim that these - that Doe

12 and Roe validly entered a marriage, which the

13 State recognized and the State granted them rights and

14 the State’s now dishonoring the rights that were

15 previously granted.

16 THE COURT: How do you know that? I guess, I

17 mean, if the Supreme Court says that Judge Shelby’s was

18 wrong, isn’t it - wouldn’t it have been wrong from the

19 beginning?

20 MR. HUNNICUTT: Well, but the difference is

21 that under the case law a judgement becomes effective

22 as of its issuance, or a decree becomes effective. So

23 for at least 17 days, or December 20th to January 6th,

24 17 days, same sex marriage was recognized in Utah.

25 It’s clear that --


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1 THE COURT: Are you trying to say that no

2 matter what anybody decides, including the U.S. Supreme

3 Court, there’s going to be valid marriages for 17 days

4 in Utah. Period. End of story. Is that what you’re

5 arguing?

6 MR. HUNNICUTT: I’m arguing that, yes, the

7 marriages that were entered into and the rights vested

8 under those marriage are - cannot be attacked without

9 the State bringing an action against each of those

10 marriages. In essence, you know, there were property

11 rights that accrued, there were parental rights that

12 accrued, all during that time frame. The law states

13 that as soon as a decree is entered, it is effective

14 and that the State merely suspends the operation of

15 that decree, but it doesn’t eviscerate the rights that

16 were achieved under the previous decree.

17 THE COURT: And the other (inaudible) are

18 adverse to public interest and substantial likelihood

19 to prevail on the merits.

20 MR. HUNNICUTT: So just - sorry. I don’t

21 believe that - referring back to injury outweighs any

22 damage to the State, they are not additionally burdened

23 by recognizing this marriage. They already, for a

24 period of 17 days, were recognizing it. They

25 recognized them as married for purposes of taxes. So


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Page 15



1 to say that it’s adverse or it puts undo burden on us

2 to recognize them for some purposes but when it

3 conveniences us we will recognize them, it just doesn’t

4 make any sense. They already do recognize marriages.

5 But recognizing this couple, they’re not required to

6 add any administrative procedures. They are merely

7 allowing them to avail themselves of the statutory

8 framework and rights already in place for the majority

9 of Utah.

10 For that same reason, it’s not adverse to the

11 public interest. The State has not shown anything that

12 adversely hurt the State during these 17 days when same

13 sex marriage was legal. They, you know, they can’t -

14 there is nothing to show that recognizing this family

15 and protecting their marital rights is going to hurt

16 the State in any way. The fact of being able to

17 legislate marriage does not avoid the consequences of

18 once you grant a right, you can’t take that right away

19 without procedural due process. And what the State has

20 done here is not procedural due process.

21 As I said, there is no privity between due

22 parties. So whatever occurs here or whatever occurs in

23 Kitchen v Herbert, it doesn’t necessarily decide this

24 case. We have - from the Tenth Circuit we have the

25 case of Pacific Frontier v Pleasant Grove where it


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1 says, “A person is not in privity with another simply

2 because of showing of identical rights at issue in an

3 earlier litigation, some interest in the outcome of the

4 case or even employment of the same attorney. Rather,

5 the person must have had some control in the earlier

6 litigation.” So the fact that we’re - that Doe

7 and Roe, that their claims may overlap some with

8 Kitchen does not obviate a need to analysis their other

9 claims and the claims in this court. They will not be

10 bound by Kitchen v Herbert. Just because, you know,

11 just because the Tenth Circuit decides it a certain

12 way, my clients in - Doe and Roe - they are

13 seeking recognition of their marriage that was - or re-

14 recognition, I guess in a way, of the marriage that was

15 at one time recognized.

16 Finally, moving to the likelihood of success,

17 the - within the Tenth Circuit the court has stated

18 that once you have made a showing of the prior three

19 elements for a preliminary injunction, the likelihood

20 of success is much more lenient. That you can then

21 just - the court must only determine that there are

22 substantial and serious issues that are subject to

23 further litigation. In essence, what the rule provides

24 is that when litigants or plaintiffs are going to be

25 harmed and they’ve shown that there’s no harm to the


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1 State, that the court should err on the side of

2 protecting the rights of plaintiffs and litigants in

3 the interim to make sure that they, as a weaker party,

4 are not prejudiced in attempting to assert their

5 rights. The same is consistent with protection of

6 constitutional rights. And the case law to - I guess

7 the public interest and vindicating the rights and

8 making sure that the citizens are - their rights are

9 recognized and properly preserved and protected by the

10 State.

11 As a final note, I’d like to point the Court

12 to a couple of U.S. Supreme Court cases which provide

13 that when a license is issued, whether it be a business

14 license, whether it be a driver’s license or whether it

15 be a marriage license, that once that license is

16 provided, it creates rights for the parties. Those

17 rights cannot be altered unless the State provides a

18 necessary due process to alter those rights. We have -

19 for example, Cleveland - Board of Education v

20 Lattermill provided that the State has no obligation to

21 provide employment contracts, or no - has no obligation

22 to provide a right to an employment, but once they do,

23 once the State confers that right, it can’t attack the

24 right, or it can’t revoke that right without providing

25 the parties procedural due process in order to do so.


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1 Additionally, we have Bell v Burson, 402 U.S.

2 535, that when there is - when the State decides to

3 issue a driver’s license, that certain rights and

4 privileges attach to those licenses. And when it

5 recognizes the rights under that, it cannot alter those

6 rights without procedural due process. They cannot

7 just decide to revoke those rights.

8 But most importantly we have Boddie v

9 Connecticut, 401 U.S. 371. In that case the court

10 found that marriage is a special type of contract. It

11 is the only contract where you have to resort to the

12 court in order to dissolve it. You cannot do so just

13 through agreement of the parties. And so a state or

14 any party to a marriage cannot simply choose to ignore

15 its existence or try to invalidate it without providing

16 the necessary procedural due process and the judicial

17 machinery necessary to provide that due process.

18 In essence, what the State has done here is -

19 they perfectly - they have a perfectly clear right to

20 litigate this case, to say we think that these rights

21 are - you know, that the Kitchen v Herbert and the stay

22 imposed has an effect on the rights of same sex married

23 couples in Utah. But they don’t have a right to forego

24 the procedural due process - the procedure necessary

25 and the due process requirements in order to make that


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1 determination. They are not the judiciary, the

2 executive branch, simply does not have that power.

3 With any type of contract if you choose or are trying

4 to attack a contract that was valid when it was

5 entered, you must do so through process and there has

6 been no process provided. They have simply said that

7 these marriages are on hold.

8 To be clear, they don’t say that they’re

9 void. Because the federal courts, the federal

10 government recognizes these marriages. Other states

11 recognize these marriages. They simply say they’re on

12 hold. Nowhere is a party to a contract or any system

13 allowed to simply declare that they’re going to put on

14 hold the rights of another party under their agreement,

15 or under their, you know, under their contract.

16 There are - our statutes provide a process

17 whereby the State can challenge the validity of

18 marriages. But they haven’t done so. Utah Code 30-1-

19 17 provides for an action to determine the validity of

20 a marriage, and it provides that whenever there’s any

21 doubt as to the validity of a marriage, that a person

22 can bring an action to determine or to litigate those -

23 the rights that occurred there. The State, that’s not

24 - and the police power - does not provide executive

25 branch of this state the ability to simply, as a


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1 stronger party, say we’re not going to recognize these

2 marriages and come and get us, basically. Come and try

3 to assert your right. That’s what they’ve done to

4 1,300 same sex couples in this state. They do not deny

5 that these marriages were valid. They recognized them

6 for a period of time. Now they’re simply saying we can

7 revoke those rights. When a right vests, the State

8 must provide the necessary process in order to alter

9 those rights.


11 MR. ANDERSON: Thank you, Your Honor. Your

12 Honor, may it please the Court, the plaintiff bears the

13 heavy burden at this hearing, the burden to show their

14 claims are ripe and the burden to show that injunctive

15 relief is warranted.

16 The Supreme Court’s stay in Kitchen, this is

17 the case that plaintiffs rely on for their vested right

18 to marriage. The problem is, the right hasn’t vested

19 because the Supreme Court placed the Kitchen case on

20 hold. The stay from the Supreme Court, which is

21 attached to our brief says, “Application for stay

22 presented to Justice Sotomayor and by her refer to the

23 court granted. Permanent injunction issued by the

24 United States District Court for the District of Utah,

25 Case No. 2:13-cv-217, on December 20th, 2013, stayed


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1 pending final disposition of the appeal by the United

2 States Court of Appeals for the Tenth Circuit.”

3 There’s no mention in there of January 6th. It’s

4 stayed as of its inception, December 20th, 2013. The

5 Supreme Court’s already gone through the temporary

6 restraining order analysis and they entered a stay.

7 There’s case law that says that the Supreme Court goes

8 through the temporary restraining order analysis every

9 time they issue a stay of a district court decision.

10 The stay places the Kitchen v Herbert injunction on

11 hold. The language from the Supreme Court case in Ken

12 v Holder is that it temporarily devests an order of

13 enforceability. The stay temporary devests an order of

14 enforceability.

15 The stay suspends judicial alteration of the

16 status quo. Think about those words, suspends judicial

17 alteration of the status quo. Well, the plaintiffs try

18 to say that the status quo is what it was on January

19 6th, but the status quo in Utah is Amendment 3.

20 Amendment 3 was the law before the Kitchen decision.

21 And because the Kitchen decision has been placed on

22 hold, Amendment 3 is the law now. The status quo in

23 Kitchen is that Kitchen is temporarily devested of

24 enforceability. We’re back to the state law pre-

25 Kitchen, which is no recognition of same sex marriage.


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1 And in our brief, in Footnote 1, I cite

2 Article 1, Section 29, Marriage. “Marriage consists

3 only as a legal union between a man and a woman. No

4 other domestic union, however denominated, may be

5 recognized as a marriage or given the same or

6 substantially equivalent legal effect.” I then have a

7 sentence where I say this is the language of the Utah

8 Constitution and on its face this language nullifies

9 any claim to any state constitutional rights in same

10 sex marriage.

11 Further, the status quo in Utah is currently

12 that. The following marriages are prohibited and

13 declared void. Subsection 5, between persons of the

14 same sex. That is Utah Code Annotated, Section 30-1-2

15 subsection 5. That statute was also enjoined by

16 Kitchen. But when Kitchen was stayed that statute also

17 goes back into effect.

18 I’m not here to say that the marriage is

19 void. I’m just here to say that the stay in Kitchen

20 did place things on hold. Because of that, we need to

21 let the appeal in Kitchen play out to determine what

22 plaintiffs rights in fact are. Because of this, we

23 don’t even know if their claims here right because

24 there has been no decision affirming Kitchen, which is

25 stayed, i.e. it’s of no legal relevance right now.


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1 Further, you can’t assert claims under the

2 Fourteenth Amendment for an unborn child, which the

3 plaintiffs attempt to do. A TRO’s not warranted. A

4 TRO preserves the status quo. Here the status quo

5 after the Supreme Court’s stay is that Amendment 3 and

6 all other Utah laws are effective. Thus, the State

7 doesn’t recognize same sex marriage.

8 Plaintiff will not suffer immediate and

9 irreparable injury, loss or damage. The Supreme Court

10 already decided as a matter of law that the State was

11 going to suffer irreparable injury under Kitchen.

12 Thus, the Supreme Court issued its stay. Plaintiffs’

13 alleged harm is reparable without this Court’s order.

14 The plaintiffs are married in New England. They could

15 have their baby in any state or sovereign that

16 recognizes their marriage. They also could use devices

17 of durable power of attorney, medical directives, child

18 birth plans, or they could have the baby in a private

19 hospital, which Utah state law says private entities

20 can recognize what they choose to. That’s Utah Code

21 Annotated 30-1-4.1(2).

22 The threat and injury to the plaintiffs

23 doesn’t outweigh an injury to the State defendants.

24 The State defendants are parties in the Kitchen v

25 Herbert case. All nine members of the Supreme Court


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Page 24



1 stayed that decision, which forms the basis of these

2 plaintiffs’ claims. If this Court recognizes

3 plaintiffs’ marriage, in direct contradiction to the

4 Supreme Court stay, it significantly hurts the State’s

5 position in that appeal.

6 The public interest is in allowing the

7 Kitchen appeal to play out. Prior to Kitchen, Utah

8 didn’t recognize same sex marriages because of the

9 popular vote that enacted Amendment 3. The Supreme

10 Court stay recognizes the will of the people in the

11 state’s rights arenas. State’s rights matter and the

12 rights of the citizens matter. That is the prevailing

13 public interest. That is why the Supreme Court issued

14 their stay.

15 There is not a substantially likelihood

16 plaintiffs will prevail. The Supreme Court’s already

17 determined that the State may have just as likely a

18 success of prevailing when they issued the stay. We

19 don’t know who’s going to prevail. We must wait and

20 see through the Kitchen appeal.

21 Plaintiffs also misconstrue the McKen case.

22 It applies, as we indicated in our brief. The State

23 temporarily devests the order’s enforceability. It

24 does not go back to January 6th and allow everything

25 that happened in the interim period as binding. The


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Page 25



1 Barry case, cited by the plaintiffs, is an open courts

2 case and it’s in opposite. And they also misquoted and

3 altered the Winston case, which dealt only with federal

4 rights. And in their brief they’ve substituted the

5 word state or states everywhere it says federal rights.

6 This case does present serious issues on the

7 merits, which should be further litigated in the

8 Kitchen appeal. That is the further litigation, under

9 the fourth prong, that must be determined before the

10 plaintiffs’ claims are ripe or sufficiently defined to

11 litigate.

12 Now, just briefly, Your Honor, I want to

13 mention some things that the plaintiffs said. They

14 said the parties are not in privity with the Kitchen

15 parties. But their vested rights are based on the

16 Kitchen decision. Thus, all of the same sex couples

17 who were married are in legal privity.

18 They also cited to the Pac Frontier case,

19 which is a case I worked on in private practice when I

20 was with Mr. Stirba’s firm, who litigated those cases.

21 They said even a temporary denial - even a temporary

22 denial of a vested right forms the basis for a

23 constitutional violation. That is what that case says.

24 The difference is the right was vested. There was a

25 vested right to a business license for these door to


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Page 26



1 door salesmen under a Pleasant Grove ordinance, and

2 they denied the business license. That’s different

3 here. We don’t - the state law in the state of Utah

4 was that we don’t recognize same sex marriages. The

5 Kitchen v Herbert case changed that. We recognized

6 marriages for 17 days. We do that because when a

7 federal injunction is in order, the State must obey.

8 That’s why the State recognized. But the Supreme

9 Court’s stay changed the status quo. It changed the

10 effectiveness of that order and the effect of that

11 order.

12 Finally, that same distinguishing fact is why

13 the Supreme Court cases the plaintiffs cited are also

14 distinguishable. They say that when licenses are

15 issued it creates rights for the parties. But here the

16 underlying law that provided the rights was a federal

17 district court’s opinion, which can be appealed.

18 Unfortunately, that’s the injustice or sadness or

19 whatever the term may be, with the fact that that

20 decision wasn’t stayed immediately. The Supreme Court

21 recognized that it should have been and stepped in when

22 they did, 17 days later, to stay it. That’s why the

23 case is stayed.

24 If the Court has no further questions, I’ll

25 submit this.


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1 THE COURT: Counsel, final thoughts?

2 MR. HUNNICUTT: I’d like to address a couple

3 of things. First of all, the State infers a whole lot

4 from a one sentence stay granted by the U.S. Supreme

5 Court. The U.S. Supreme Court has held that decisions

6 entered without any analysis have no precedential

7 value, that you can’t read into them anything beyond

8 what they say. It simply says that a stay has issued

9 of the December 20th ruling. It does not provide all

10 of these additional cancellation of rights that were

11 achieved during that 17 day period.

12 Now --

13 THE COURT: What are you reading into, or

14 what’s the basis for your assertion that the stay

15 really only is effective the day it’s issued, rather

16 than the date of the order the judge issuing the

17 decision?

18 MR. HUNNICUTT: For example --

19 THE COURT: You know, to create this gap time

20 period.

21 MR. HUNNICUTT: Yeah. For example, when you

22 - an automatic stay in a bankruptcy case, it does not

23 act to eviscerate or to cancel out actions or

24 judgements or rights that were achieved the week

25 before. The day of the stay is when that goes into


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1 effective. It does not provide any retroactive effect.

2 Just like, you know, a stay suspends the orders that

3 exist, but they don’t suspend the previous rights

4 achieved under those orders. The fact is that the

5 State could decline to ask for a stay. You know, they

6 cry foul because a stay wasn’t issued automatically,

7 but they didn’t follow the proper procedures to ask for

8 a stay. And we do have case law that says in the

9 absence of a stay, you know, the decree goes into

10 effect. The judgement can be enforced. You know, when

11 we have a judgement in any court and we begin executing

12 on that judgement, a stay does not require you to give

13 back what you recovered under - in your execution

14 proceeding. It does not retroactively stop or cancel

15 the rights achieved. It merely suspends the order as

16 soon as it’s issued. And that is what occurred here,

17 that - there is no - you know, they read a lot into

18 this one sentence stay by the U.S. Supreme Court. The

19 U.S. Supreme Court has stated that when they give

20 unexplained decisions, they don’t have precedential

21 value and you can’t read those things into it.

22 You know, they - the State itself

23 acknowledges that these parties are in legal limbo.

24 They acknowledge that there is some right. Now,

25 they’re saying that these marriages are void. If they


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1 were in fact void, then they wouldn’t say that, you

2 know, we’re going to recognize the rights that were

3 achieved prior to the stay. And that’s in fact what

4 they do say in their orders. Governor Herbert, you

5 know, said if you have completed your name changing on

6 your driver’s license or if you have achieved certain

7 rights while this be in place, this does not cancel it.

8 You know, if you were to have achieved a step parent

9 adoption during that time period, it would not cancel

10 the step parent adoption just because the stay is now

11 put in place. It freezes things, or suspends the

12 effect of Judge Shelby’s order as of that date, but it

13 can’t cancel the rights that were achieved under that

14 order, because that was the state of the law at the

15 time and they achieved rights under the law as it

16 existed. Our case law provides that you apply the law

17 as it existed at the time of the events it governed.

18 And they were married at a time when it was legally

19 recognized. In any other instance, you know, we have

20 17 days. In family law, when you are married, anything

21 you earn during the marriage because marital property

22 and each partner has a claim to 50 percent of that upon

23 dissolution of the marriage, regardless of which

24 partner or which spouse earns it. What - and so for at

25 least those 17 days, you know, there are - there’s a


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1 whole bunch of marital property. What the State is

2 trying to say is that we don’t care about that. We

3 don’t care whether one person had a claim to that

4 marital property because we’re not going to recognize

5 that. That would be a violation of the takings clause,

6 to take property from one person without the ability of

7 that person to be heard.

8 THE COURT: Well, and that’s why, in part, I

9 asked you the question, is if it was your position that

10 regardless of whatever the federal courts decide, the

11 effect and all position is, is we have 17 days worth of

12 marriages that are in existence. Period. End of

13 story.

14 MR. HUNNICUTT: Yes.

15 THE COURT: And that the Court of Appeals or

16 the U.S. Supreme Court can’t make the decision that

17 this decision as to what a marriage is left up to the

18 states, thus upholding the validity of what the law was

19 at the time. So I guess what I’m trying to get at is,

20 is there appears to be an assumption in your argument

21 that there isn’t the ability, or it can’t happen and

22 won’t happen, that whatever decision ultimately comes

23 down, won’t eviscerate or take away whatever occurred

24 in these 17 days. You’re trying to say no matter what

25 happens, these 17 days stay in effect. Period. End of


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1 story.

2 MR. HUNNICUTT: And that is my argument, Your

3 Honor.

4 THE COURT: Okay.

5 MR. HUNNICUTT: Because it is my position

6 that when the State grants rights, it can’t merely

7 cancel those rights. When the State grants a license,

8 it can’t merely cancel the license without providing

9 due process. That is the whole point of vested rights.

10 The vest right doctrine comes from, you know, our

11 zoning laws. You know, when somebody’s reached a

12 certain point in an application process for - to

13 achieve - to get a zoning permit, they have obtained a

14 vested right and the State can’t simply cancel that

15 vested right or change those laws without providing

16 them the opportunity to be heard. And if, in fact,

17 they have achieved a substantial vested right,

18 compensating them. And that is exactly what has

19 occurred here. You know, their - if the State had

20 chosen not to appeal it, same sex marriage would be

21 legal in Utah. And so there’s no denying that for a

22 time it was legal in Utah. Just because a stay is

23 issued doesn’t change that history. It doesn’t change

24 that at one time the State did recognize same sex

25 marriage and that people achieved rights under those


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1 marital rights, under that marital statutory scheme.

2 Now, the parties here have been harmed. And

3 the States cites, you know, they could go and they

4 could get different rights or they could leave the

5 state. That is absolutely contrary to what the

6 Constitution provides and it’s an insulting argument to

7 say, look, if you don’t like it here, leave. You know,

8 that is not a legitimate government objective and that

9 is not something that should be tolerated under the

10 Constitution.

11 They also point out that there are other

12 private agreements, wills, contracts where you can

13 provide certain rights. But our own case law under

14 State v Hones says yes while you can achieve certain

15 rights that kind of look like marriage, they are not

16 marriage and they are comparable. They say

17 specifically that there is a whole net - statutory

18 network of rights that incur in a marriage that private

19 contracts cannot achieve.

20 THE COURT: In that same vein, what is that I

21 can’t order that makes this irreparable regarding the

22 birth of the child? Can we not order the child’s name

23 on the birth certificate? Can we not declare the

24 parties married? Can we not - I mean, what needs to be

25 stopped in order to prevent something irreparable from


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1 occurring as it relates to the timing of the birth of

2 the child? I’m struggling to find that, to tell you

3 the truth.

4 MR. HUNNICUTT: Well, I think that - you

5 know, if anybody’s spouse were to go into the hospital,

6 and it’s impending, you know it’s going to occur, and

7 you are deprived of the right and all of the spousal

8 privileges that come with being able to make decisions

9 if there is an emergency when the child is born. You

10 know, being declared a parent at birth and having all

11 of those parental rights that arise at that point

12 because you are married, that is significant, and the

13 State has recognized that. I mean, our judiciary has

14 recognized that in State v Hone, saying that the

15 private rights are not enough. And the mere fact is,

16 is this is a constitutional due process right and any

17 violation of a due process right or a constitutional

18 right of a party is irreparable. We have that - you

19 know, we have case law saying a violation of your right

20 to free speech, even temporary, is irreparable because

21 it violates your rights as an individual.

22 You know, we absolutely - if there were some

23 other mechanism to provide them the rights, to stop

24 that measure for these - for my clients, you know, as

25 they enter into the hospital and their child is born,


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Page 34



1 absolutely. But the truth of the matter is, is that is

2 not what is guaranteed to them under the Constitution.

3 With regard to the State’s reference to

4 popular vote, popular vote cannot outweigh a person’s

5 constitutional rights. That’s the point of the

6 Constitution is to protect those that are - that cannot

7 protect themselves.

8 He points - the State also points to our

9 citation of Windsor and in that the U.S. Supreme Court

10 specifically spoke on the - what’s going on here. The

11 State here has created a system where my clients are

12 recognized for federal purposes in other states as a

13 married couple but now, again in Utah, are no longer

14 recognized. Windsor spoke specifically to that, to

15 creating two tiers of marriages.

16 And he points out that, you know, we --

17 THE COURT: Are you saying the State created

18 that? Did I hear you correctly on that?

19 MR. HUNNICUTT: I - yes, the State has

20 created that, Your Honor.

21 THE COURT: Wasn’t it the federal judge that

22 created that, not the State? Wasn’t it?

23 MR. HUNNICUTT: No, Your Honor. To be, you

24 know, the State failed to ask for a stay. The State

25 was unprepared for the decision that came down from


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1 Judge Shelby. And the fact that they now have chosen

2 to say, Hey, look, all of these marriages that were

3 granted under our law and that we recognized were valid

4 at one time, we’re not going to recognize anymore, they

5 have in fact created two different classes of marriages

6 within the state.


8 MR. HUNNICUTT: Anything else?

9 THE COURT: I haven’t read your brief. Final

10 thoughts? I’d like to take a short recess just to give

11 you the fairness of having at least read what you

12 submitted, if you’ll give me a few minutes.

13 MR. ANDERSON: That sounds good, Your Honor.

14 You’ll see in Exhibit A that there’s actually two

15 decisions in the Kitchen case that are attached to our

16 brief. The second one is a decision when the State did

17 ask for a stay. That stay was asked for - I’m

18 representing here - but that stay was asked for, I

19 believe, on the phone within minutes of the decision

20 being issued and then was filed later that evening, and

21 there’s a decision report on that request for a stay.

22 I don’t think it’s, you know, I don’t think

23 it’s a stretch to think that the judge would have just

24 stayed his own decision. It’s been done recently. It

25 was done in Oklahoma, which was after the Supreme Court


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1 stay.

2 THE COURT: Any comments on why the State

3 recognizes tax returns for couples but yet in other

4 areas --

5 MR. ANDERSON: Ms. Jones was prepared to

6 cover that, actually, Your Honor, on the tax return

7 issue.

8 THE COURT: They put it out there and there

9 appears to be some internal inconsistencies in the

10 State’s position perhaps.

11 MS. JONES: I do have a couple of points on

12 that, Your Honor. First of all, under Utah law, the

13 marriage status of a couple is determined by their

14 status on their federal income tax return. So that’s

15 Utah law 59-10-501. So that’s number one. And as you

16 know --

17 THE COURT: Since the feds recognized, you

18 felt you had no choice?

19 MS. JONES: That’s correct. That is correct.

20 And then number two, I do have a copy of the notice

21 that the Tax Commission sent out to folks regarding

22 marriages that were - same sex marriages that were

23 performed during that time period before the stay was

24 issued. And what the Tax Commission expressly said was

25 that this notice is limited to the 2013 tax year.


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1 Filing information for future years will be provided as

2 court rulings and other information become available.

3 If any taxpayers are required to file amended 2013 tax

4 returns based on future court rulings, they will not be

5 subject to penalties, etcetera. So there’s a

6 recognition that based on future court decisions that

7 these couples who are being allowed to file as married

8 in Utah may have to go back and file an amended tax

9 return based on what the future decisions are. I do

10 have a copy to provide for you, Your Honor, as well as

11 for counsel.

12 THE COURT: Please.

13 MR. HUNNICUTT: Can I respond to that,

14 briefly?

15 THE COURT: Absolutely. As soon as she’s

16 done. Are we done?

17 MR. HUNNICUTT: I apologize.

18 THE COURT: She’s done.

19 MS. JONES: May I approach?

20 THE COURT: Please. Thank you. Counsel, go

21 ahead.

22 MR. HUNNICUTT: Well, I would just like to

23 respond to the idea that this is a new or this is way

24 to just address the recognition of same sex marriage in

25 Utah. Because right after Windsor was decided, the Tax


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1 Commission came out and they said, No, what same sex -

2 we’re not going to recognize same sex couples for the

3 purposes of taxes. We - what same sex couples are

4 required to do is they’re required to do their federal

5 return and do a mock federal return for state purposes

6 as a single individual and file it that way. It wasn’t

7 until after the Kitchen v Herbert case was decided and

8 they realized that in fact there were tax implications

9 and that as of January 31st these couples were married

10 even under state law that they decided to allow them to

11 file for federal purposes. So, in essence, they

12 reversed their original opinion under Windsor. It is

13 not based on the fact that it’s just - that it’s based

14 on their federal return. They are in a sense

15 recognizing the marriage.

16 THE COURT: Thank you. Any final thoughts

17 from anyone before we take a short recess?

18 MS. JONES: I did want to make one more

19 point.

20 THE COURT: Please.

21 MS. JONES: You’ll see in the notice that the

22 tax status only applies through December 20, 2013. It

23 doesn’t - to person who were married by December 31st,

24 2013, not to persons who were married after that time,

25 as plaintiffs in this case were, I believe.


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Page 39



1 THE COURT: So we potentially have too --

2 (Voices overlap)

3 MS. JONES: I’m incorrect on it. But in any

4 event, the recognition of same sex marriage for tax

5 purposes only applies to the prior tax year.

6 I just wanted to say too that counsel’s point

7 that the Tax Commission changed its position after

8 Kitchen, I mean it makes sense because it was only

9 after Kitchen that same sex marriages were performed in

10 Utah. So there was a need to change the decision when

11 that occurred.

12 MR. HUNNICUTT: So the new position applies

13 to Kitchen and the new position applies to same sex

14 marriages that occurred outside of the state of Utah.

15 So it does not just applied to those that occurred

16 during the stay. But I would like to point your

17 attention to the tax notice. It says, “Eligible

18 married couples...” There’s a heading, “2013 Utah

19 Individual Income Tax Returns.” The last sentence of

20 that says, “Eligible married couples may file a joint

21 return if they are married as of the close of the tax

22 year.” And it says as justification, “As of December

23 31st, 2013, the Supreme Court had not yet issued its

24 stay of the district court’s injunction.” So because

25 that stay had not issued, those rights were vested and


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Page 40



1 the State has no ability to change that.

2 THE COURT: Thank you. I appreciate it very

3 much. I’ll be back with you in just a few minutes.

4 (COURT IS IN RECESS)

5 THE COURT: Alright. We’re back on the

6 record. All parties and counsel are present. In this

7 matter, in the way of backgrounds, is nine months

8 pregnant with her child

9 . This was done at a time when

10 she and were living together as a couple and when

11 same sex marriages were prohibited in Utah. Utah law

12 prohibits the recognition of same sex marriages. Utah

13 Constitution, Article 1, Section 29 and Utah Code

14 Annotated 30-1-4.1, a federal district court injunction

15 barring the application of those laws was issued in

16 Kitchen v Herbert on December 20th, 2014. After the

17 injunction on December 23rd, 2013, plaintiffs, and

18 , who are women, were married to one another in

19 Salt Lake County. On January the 6th, 2014 the United

20 States Supreme Court entered a stay of the federal

21 district court’s injunction pending resolution of the

22 State’s appeal of that decision to the Tenth Circuit

23 Court of Appeals. On January the 8th, 2014, the Utah

24 Attorney General issued a directive instructing that

25 same sex marriages were not going to be recognized and


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1 that such marriages were on hold. On January 10th,

2 2014, the U.S. Attorney General declared that same sex

3 marriages finalized in Utah would be legal - recognized

4 as legally valid and binding for all federal purposes.

5 While the plaintiffs were married, when the

6 federal injunction was in effect, absent such

7 injunction, Utah state law prohibits the court from

8 recognizes that marriage or giving any effect -

9 recognizing that marriage or giving any effect to it if

10 such laws are constitutional valid.

11 With this motion plaintiffs are seeking an

12 order compelling the State of Utah to recognize their

13 marriage and to afford them all rights, privileges,

14 duties pertaining thereto. Now, in this matter that’s

15 presently before the Court a restraining order or a

16 preliminary injunction may issue only upon the showing

17 by the applicant that, one, the applicant will suffer

18 irreparable harm unless the order or the injunction

19 issues; two, the threat and injury to the applicant

20 outweighs whatever damage the proposed order or

21 injunction may cause the party restrained or enjoined;

22 three, the order or injunction, if issued, would not be

23 adverse to the public interest; and four, there’s a

24 substantial likelihood that the applicant will prevail

25 on the merits of the underlying claim or the case


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1 presents serious issues on the merits which should be

2 the subject of further litigation.

3 Turning to the first matter, irreparable

4 harm, and the second matter, threat of injury to the

5 applicant outweighs the damages the proposed order may

6 cause the party restrained, the plaintiffs argue that

7 the State’s refusal to recognize their marriage causes

8 them harm. Among other things, one of them being a

9 legal stranger to their daughter and deprives them of

10 the authority to make emergency decisions which could

11 arise during labor and delivery. In applying the law

12 to the facts of this case, the Court does not find

13 irreparable harm. There are a number of other remedies

14 available including but not limited to an order that

15 both party’s names could be included on the birth

16 certificate and/or entering into a guardianship status

17 and/or providing good power of attorneys or other

18 medical directives to address emergency medical

19 concerns.

20 By issuing a temporary restraining order the

21 Court would be, by implication, making a determination

22 in part on those matters and issues being determined at

23 the federal level. This Court is not making a

24 determination on the status of marriages during this 17

25 day time period. That issue, which is being addressed


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1 by the federal courts - nor is the Court making any

2 determination at this time if any rights vested by

3 virtue of the marriages performed during the time

4 period of that injunction. The application of these

5 and other available remedies the Court believes best

6 preserves the status quo pending the outcome of the

7 other cases.

8 Substantial likelihood of prevailing on the

9 merits. In light of the various opinions and rulings

10 above, it cannot be said with any certainty or

11 likelihood which outcome there will be. Given - in

12 granting and taking this - in granting the stay, that

13 is, the Supreme Court has already in part weighed the

14 various equities that have been argued.

15 Public policy. As noted, a similar issue as

16 is presently under consideration by the Tenth Circuit

17 Court of Appeals where the arguments of public policy

18 have already been addressed by both sides.

19 Therefore, the Court, in conclusion, based

20 upon the foregoing, does not find that the elements of

21 Rule 65A have been met, and accordingly, respectfully,

22 the motion for a temporary restraining order is denied.

23 Thank you. Any other matters we need to

24 handle before we adjourn?



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1 THE COURT: Thank you very much. I

2 appreciate your time and your arguments today and your

3 hard works and efforts. Court will be in recess.

4 (PROCEEDING CONCLUDED)

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1 C E R T I F I C A T E

2

3

4 I, Jayme Mackay, do hereby certify that the

5

6 foregoing pages contain a true and accurate transcript

7

8 of the electronically recorded proceedings and was

9

10 transcribed by me to the best of my ability.

11 _________________________

12 Jayme Mackay

13

14

15 I, Kelly Thacker, do certify this transcription

16

17 was prepared under my supervision and direction.

18

19

20 _________________________

21 Kelly Thacker

22

23

24

25


EXHIBIT 2-

REDACTED COMPLAINT FOR EXTRAORDINARY,

INJUNCTIVE, AND DECLARATORY RELIEF

(Doe v. State, Case No. 140900542)


Shane A. Marx (Bar. No. 13293) James H. Hunnicutt (Bar No. 9341) David S. Dolowitz (Bar No. 0899) DOLOWITZ HUNNICUTT

299 South Main Street, Suite 1300 Salt Lake City, Utah 84111 Tel: (801) 535-4340 Fax: (801) 535-4346 Email: [email protected]

j [email protected] [email protected]

Attorneys for Plaintiffs

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

DOE & ROE, as individuals and in loco parentis

for their unborn child,

Plaintiffs,

vs.

STATE OF UTAH, GARY R. HERBERT, as Governor of Utah, & SEAN D. REYES, as Attorney General of Utah,

Defendants.

COMPLAINT FOR EXTRAORDINARY,

INJUNCTIVE, AND DECLARATORY RELIEF

Case No.

THE HONORABLE

Plaintiffs, under the protective pseUdonyms Doe (" ") and Roe (" "),

hereby file this Complaint for Extraordinary, Injunctive, and Declaratory against the State of Utah


and Gary R. Herbert and Sean D. Reyes, as executive officials representing the State of Utah.

and allege as follows:

FACTS

1. is a pregnant woman in her early thirties. She is due to give birth on February

3,2014.

2. is a woman in her early thirties, who is currently recognized as 's legal

spouse by the U.S. federal government and eighteen other independent U.S. jurisdictions,

including: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland,

Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island,

Vermont, Washington, and the District of Columbia. Eight other independent sovereign tribal

jurisdictions also recognize and as a married couple, including: the Cheyenne Tribe, the

Arapaho Tribe, the Confederated Tribes of the Colville Reservation, the Coquille, the Little

Traverse Bay Bands ofOdawa Indians, the Pokagon Band ofPotawatomi Indians, the Santa Ysabel

Tribe, the Leech Lake Band ofOjibwe, and the Suquamish.

3. Additionally, the State of Utah currently recognize and as married for

state tax purposes.

4. Despite having legally and validly married in Utah on December 23,2013, under

the applicable state law that recognized their marriage at the time, the State of Utah currently

refuses to recognize or voluntarily provide the rights and benefits of marriage to and .

5. Given the imminence of their daughter's birth, it is imperative that the Court enforce

the marital rights to which and are entitled.

2


Relationship History and Family Formation

6. was born to opposite-sex parents in New England, where she lived until early

adulthood. She was raised in a religious household, and she regularly attended temple and Hebrew

school as a child.

7. was born in the Northwest to opposite-sex parents. She moved around until

late childhood when her parents settled in Utah, where remained until she left for college.

, too, had a religious upbringing, and she regularly attended religious classes from childhood

through adolescence.

8. and have been engaged in a committed monogamous relationship for

approximately eight and a half years.

9. and met in the late spring of 2005 at a barbecue during their senior year

of college. They met through a mutual friend, who asked to give her and a ride home

following the barbecue. Following the event, they all went to dinner with mutual friends.

10. Before long, and began dating, and soon thereafter and fell in

love. When they reminisce about their first date, they recount the otherwise everyday events with

all of the infectious joy and excitement of those who have found "their other half."

11. and discussed marriage, commitment, and their shared values early in

their relationship, and they continued to regularly revisit the subject thereafter. They both agreed

that they would allow their relationship and commitment to develop and that they would marry

when the timing and circumstances were right.

3


12. 's and 's feelings for each other compelled them to inform family and

friends of their relationship and their desire to form a life and family together. While some family

members were surprised by the revelations, in time they embraced the relationship of and

, as their love, concern and affection for each other was apparent. By way of example, 's

96 year old grandfather, a World War II veteran, affectionately requests to also speak with

every time he speaks with .

13. In 2007, moved to Washington State to pursue a master's degree of fine arts.

14. At about that same time, returned to Utah to pursue studies in medicine.

15. From 2007 to 2009, and maintained an exclusive relationship, despite

the physical distance necessitated by the studies in their respective programs at different

universities.

16. In May of2009, was nearing the end of her graduate program, and the couple

again discussed the issue of marriage. At that time, they purchased engagement rings for each other

and stored them in a safe deposit box, pending 's relocation to Utah after graduation.

17. In late May of2009, graduated with top honors with a master's degree of fine

arts.

18. In June of2009, after completing her graduate program, moved to Utah to be

with . The couple did not immediately become engaged. Rather, being very practical and

understanding the commitment marriage entails, they allowed themselves time to reacquaint with

each other and everyday life together in close proximity.

19. In October 2009, and officially became engaged to marry.

4


20. For the year after becoming engaged, and planned their wedding to be

held in New England. They coordinated with their families and worked to make it the wedding

they had always imagined as children. During this time, was also occupied by her third year

of medical school-a time that is known to be particularly grueling. While was busy with her

studies, helped to support and worked at various higher education and community

institutions, teaching writing and related courses.

21. In September 2010, and were legally married before all of their family

and close friends in 's home state. 's younger brother officiated the wedding. The health

of some of their grandparents prevented them from traveling to the wedding. To include those

grandparents in the happy occasion, the family videoed the event and made DVDs, which

and later watched with them in their home. Their grandparents have repeatedly watched the

DVD, and they always insist on watching it again whenever and visit.

22. Following their wedding, and returned to their home in Utah.

23. In 2011, graduated from medical school with high honors. Thereafter, she was

matched with a residency that permitted her to remain in Utah.

24. affirms that that she always wanted to have children and that she always

envisioned children in her future.

25. states that she took for granted that her marriage and family would someday

include children.

5


26. About a year and a half after marrying, and began serious discussions

about having children together. They consulted with legal counsel, experts in child development,

and fertility specialists to discuss the challenges and options of bringing children into their family.

27. Ultimately they decided that they would choose an anonymous sperm donor and

that through assisted reproduction, would give birth to their first child.

28. and contacted a cryobank in California to begin evaluating potential

donors. and affirm that the process of selecting a donor for their unborn child required

many in-depth discussions and pushed them to further understand and align their values as a

family. They spent endless hours assessing potential donors over many months, prioritizing criteria

of intelligence, strong familial bonds, physical traits similar to their own, and indications that the

potential donor was a "thinker"-defined by and as someone capable of independent

and creative thought. and weighed these characteristics based on available standardized

test scores, audio recordings of the donor interviews, essays, documented family history, and

demographic information anonymously provided through the cryobank.

29. After selecting a donor and completing the necessary consents, and first

attempted to become pregnant through artificial insemination, assisted by their fertility doctor in

February of 2013. After three such separate attempts, their doctor confirmed that was

pregnant in May of2013.

30. When their doctor was able to decipher the sex of their child, and were

delighted to find out that their child was healthy and that they were having a daughter.

6


Renewal and Confirmation of Marriage in Utah

31. On December 20, 2013, and learned that the federal district court for the

District of Utah enjoined the state of Utah from disallowing or refusing to recognize the marriage

of same-sex couples in Kitchen v. Herbert, No. 2:13-cv-217 (D. Utah) (order enjoining

enforcement of Utah Code §§ 30-1-2(5) and 30-1-4.1, and Utah Constitution Article 1, § 29).

32. Uncertain of the legal effect that might be given to their out-of-state marriage under

the federal district court injunction, and decided to obtain a marriage license in the State

of Utah and renew their vows under Utah law. However, they were unable to obtain a license

before the county clerk's office closed on Friday, December 20,2013.

33. Anxious for the opportunity to secure marital rights and recognition of their family

in Utah and fearing that a stay might be issued to halt such marriages, and awoke in the

early morning hours to stand in line when the county clerk's office opened on the following

Monday, December 23, 2013. They were accompanied by family that happened to be in town

visiting them for the holidays.

34. and obtained a marriage license from the Salt Lake County Clerk and

married in Utah, on December 23,2013.

Stay of Injunction and Inconsi tent Standa.-d for Recognizing Ma.-.. iage

35. On January 6, 2014, after the State's applications for a stay were denied several

times, the U.S. Supreme Court allowed a stay of the federal district court's injunction pending

resolution of the State's appeal of that decision to the Tenth Circuit Court of Appeals.

7


36. Following issuance of the stay, Utah's executive branch of government did not

immediately take a position regarding its recognition of the approximately 1300 same-sex

marriages finalized in Utah before the stay was entered.

37. On January 8, 2014, the Attorney General issued a directive instructing the

Governor's cabinet and executive agencies to refuse recognition of any marriage between same

sex individuals and that such marriages were "on hold," regardless of where granted, while the

appeal is pending.

38. The January 8, 2014 directive of the Attorney General and the legal determinations

embedded therein are beyond the authority of the executive branch and are more properly reserved

for judicial determination.

39. On January 9, 2014, the Attorney General admitted in a directive issued to county

clerks that the same-sex marriages completed between December 20, 2013 and January 6, 2014,

"were recognized at the time the ceremony was completed."

40. In contrast to the position taken by the Attorney General, the U.S. Department of

Justice declared on January 10, 2014 that the same-sex marriages finalized in Utah shall be

recognized as legally valid and binding for all federal purposes.

41. A total of27 independent sovereign U.S. jurisdictions (federal government, District

of Columbia, 17 states, and 8 tribes) recognize the marital rights granted under the marriage license

issued to and under the laws of the State of Utah, notwithstanding Utah's refusal to

recognize any rights granted under its own licenses.

8


42. On January 16,2014, the Utah State Tax Commission, under its own authority and

legal counsel that is independent from that of the State's Governor and Attorney General, affirmed

that it will recognize same-sex marriages of Utah residents for state tax purposes.

Harm to Plaintiffs, their Unborn Child, and the Public Interest

43. is due to give birth on February 3, 2014, and on the cusp of giving birth to

their daughter, the State's refusal to recognize her marriage to strips of a legal spouse

and the rights and benefits thereof.

44. The State's refusal to recognize the marriage of and strips their child of

her legal relationship to as her second parent and of all the rights, duties, and privileges that

are triggered when a child is born into a marriage.

45. The State's refusal to recognize the marriage of and strips of the

presumption of parentage and legal status as a parent of her daughter upon birth, and it deprives

and of the concomitant ability and benefits of having a second parent to make emergency

and other significant decisions for their daughter.

46. The State's refusal to recognize the marriage of and strips them of the

reciprocal authority to make decisions for each other in emergencies or in the event that one of

them is incapacitated. is denied such authority, and is similarly stripped of the reciprocal

benefit of her spouse being able to safeguard her best interest in such situations.


right and ability to consent, authorize, or bind each on behalf of the other regarding medical,

9


financial, and legal decisions and privileges that would otherwise be afforded as reciprocal rights

flowing from the recognition of their marriage.

48. The State's refusal to recognize the marriage of and denies them the

presumption of parentage that is triggered when a child is born within a marriage and disallows

to be named on the child's birth certificate, upon the child's birth. This in turn affects the

child's rights to inheritance, right to support, and right to protection from upon the child's

birth.


protections and dignity owed to their family, and they are subjected to undue distress, legal

instability, humiliation, and emotional suffering.

Rights Previously Vested Were Unaffected by the Stay

50. The U.S. Supreme Court has declared that a stay "have the practical effect of

preventing some action before the legality of that action has been conclusively determined. But

a stay achieves this result by temporarily suspending the source of authority to act--the order or

judgment in question--not by directing an actor's conduct. A stay simply suspends judicial

alteration of the status quo." Nken v. Holder, 556 U.S. 418, 428-29 (2009) (internal quotation

marks and alterations omitted).

51. On January 6, 2014, the U.S. Supreme Court stay suspended the effect of the prior

federal district court injunction to maintain the status quo on that date that the stay was issued

meaning the circumstances and state of the law, as it existed at that time. At the time the stay was

10


issued, the status quo was that the State had issued and it recognized approximately 1300 same

sex marriages granted under its own law.

52. While the stay issued on January 6, 2014 may have temporarily suspended the

effect of the December 20, 2013 federal district court injunction, it does not have the legal effect

of retroactively eviscerating or otherwise altering the rights achieved and vested while the

i11junction was in effect.

53. Utah Courts are required to "apply the law as it exists at the time of the event

regulated by the law in question." State v. Clark, 2011 UT 23, ~ 13.

54. "On matters of substance the parties' primary rights and duties are dictated by the

law in effect at the time of their underlying primary conduct (e.g., the conduct giving rise to a

criminal charge or civil claim)." State v. Johnson, 2012 UT 68, ~ 11 (internal quotation marks

omitted).

55. II [O]nce a cause of action under a particular rule oflaw accrues to a person by virtue

of an injury to his rights, that person's interest in the cause of action and the law which is the basis

for a legal action becomes vested, and a legislative repeal of the law cannot constitutionally divest

the injured person of the right to litigate the cause of action to a judgment. II Berry v. Beech Aircraft

Corp., 717 P.2d 670, 676 (Utah 1985).

56. and perfected their marital contract upon compliance with the

enforceable statutory requirements to do so on December 23, 2013. They were eligible to marry

each other, they obtained a valid marriage license, their marriage was solemnized before an

11


authorized individual, and their completed license was returned to the county clerk for

administrative recordkeeping purposes.

57. Upon marrying in compliance with the law on December 23,2013, and

were vested with all of the rights and benefits of marriage, including, but not limited to, the

reciprocal rights to property of the marriage, to contractually bind one another, to parental

presumptions of parentage, to inheritance, to decision-making power for an incapacitated spouse,

etc. Once and have obtained such vested rights, concomitant to their valid marriage,

they cannot be stripped of them without due process of law by an interim order in a case to which

they are not represented nor are they parties.

58. It is undisputed that and were vested with all of the benefits and

protections of marriage that is afforded under the laws of Utah, including, but not limited to those

reciprocal rights and responsibilities contained in Utah Code, Title 30 and Title 78B, Chapter 15,

from at least December 23,2013 until January 6,2014.

59. Once and obtained vested rights concomitant to their valid marriage, the

State cannot strip them of such rights without due process of law. An interim order staying a case

in which and are not represented nor are they parties does not provide constitutionally

sufficient procedural due process to affect or alter, let alone eliminate, their substantive rights that

arose under their valid marital contract.

60. Even if the 10th Circuit Court of Appeals or the U.S. Supreme Court ultimately

overruled the federal district court's decision and injunction striking down Utah's ban on same-sex

marriage, retroactive application of such a decision to affect the substantive marital rights of

12


and would be prohibited, "where the overruled law has been justifiably relied upon or where

retroactive operation creates a burden." Merrill v. Utah Labor Comm'n, 2009 UT 74, ~ 5 (internal

quotation marks omitted).

61. Consequently, the validity of and continuing recognition afforded to the marriage

of and must be determined by the law in place on December 23,2013.

Violations of Due Process and Equal Protection

62. The State's refusal to recognize the marriage of and violates federal

constitutional principles of equal protection and the fundamental rights of substantive due process,

as recognized by the U.S. Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967).

63. The State's refusal to recognize the marriage of and violates their federal

constitutional due process rights to liberty, including the right to establish a home, raise children,

and enjoy the other privileges essential to the orderly pursuit of happiness of free persons, as

recognized in Myers v. Nebraska, 262 U.S. 399 (1923).

64. As in United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), the State's refusal to

recognize the marriage of and violates federal constitutional principles of equal

protection, because the State's directive to refuse recognition of same-sex marriages, once deemed

valid within the state,

... identif1ies] a subset of state-sanctioned marriages and make[s] them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And [the State] contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, [the State] forces

13


same-sex couples to live as married for the purpose of [federal] law but unmarried for the purpose of [state] law, thus diminishing the stability and predictability of basic personal relations the State has [ otherwise] found it proper to acknowledge and protect. By this dynamic [the State] undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [state] recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence v. Texas, 539 U. S. 558 (2003), and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

65 . The State's refusal to recognize the marriage of and discriminates and

imposes additional burdens on their family as compared to those headed by opposite sex-couples,

with no rational basis and no legitimate government objective for doing so.

66. "Constitutions, as well as statutes, should operate prospectively only .... " Mercur

Gold Mining & Milling Co. v. Spry, 52 P. 382, 384 (Utah 1898). See also Brunyer v. Salt Lake

Cnty., 551 P.2d 521, 522 (Utah 1976); Shupe v. Wasatch Electric Co., 546 P.2d 896, 898 (Utah

1976) (echoing precedent that "[c]onstitutions, as well as statutes, should operate prospectively

only"); Okland Constr. Co. v. Indus. Comm'n, 520 P.2d 208, 210 (Utah 1974) (stating that a party

"is entitled to have its rights determined on the basis of the law as it existed at the time of the

occurrence; and that a later statute or amendment should not be applied in a retroactive manner to

deprive a party of his rights").

14


67. The Due Process and Equal Protection Clauses of the United States Constitution,

as well as Utah's parallel state constitutional protections, require the State of Utah to recognize the

marriage between and . Such vested rights carry the concomitant entitlement to formal

and legal recognition of that ongoing marital relationship, despite any provision of state law

contrary thereto.

68. The Due Process and Equal Protection Clauses of the United States Constitution,

as well as Utah's parallel state constitutional protections, permit the fundamental right to

parent her child as she sees fit and to choose the person with whom she will co-parent her child,

regardless of that person's sex. Such vested rights carry the concomitant entitlement to formal and

legal recognition of that ongoing co-parental relationship, despite any provision of state law

contrary thereto.

69. The United States and Utah constitutions vest and 's unborn daughter with

a fundamental right of association and a legal parent-child relationship with as her second

parent that automatically arises when a child is born within a marriage. These vested rights carry

the concomitant entitlement to formal and legal recognition of their daughter's parent-child

relationship to , without whom this particular child would not have been born.

FIRST CAUSE OF ACTION (Rule 65B Extraordinary Relief)

70. and incorporate by reference and restate the allegations set forth above.

15


71. and have the right to petition this Court for extraordinary relief under

Utah Rule of Civil Procedure 65B(a) "where there is no other plain, speedy, and adequate remedy

is available."

72. There are grounds for such extraordinary relief "where a person usurps, intrudes

into, or unlawfully exercises a public office." Id. 65B(c)(2).

73. The Governor and the Attorney General have usurped and intruded upon the

authority of the judicial branch of government in failing to appropriately seek judicial

determination of the rights of married same-sex couples within the State of Utah and any effect

the stay issued on January 6, 2014, in Kitchen v. Herbert, No. 2:13-cv-217 (D. Utah), may have

on such rights. Instead, the Governor and Attorney General have unlawfully exercised their public

offices and single-handedly, without authority or an appropriate determination of rights, directed

state agencies to refuse same-sex married couples the familial protections required under law and

to deny them the dignity of recognizing their families.

74. There are grounds for such extraordinary relief "where ... [an] officer exercising

judicial functions has exceeded its jurisdiction or abused its discretion ... ; where ... [a] person has

failed to perform an act required by law as a duty of office, trust, or station; [or] where ... [a]

person has refused petitioner[s] the use or enjoyment of a right to which the petitioner[s] [are]

entitled." UTAH R. ClV. P. 65B( d)(2).

75. To the degree that the Governor and the Attorney General are permitted to exercise

any sort of judicial function, they have exceeded their jurisdiction and abused their discretion in

depriving and of the vested benefits and rights flowing from their marriage, without

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constitutionally required procedural due process. The same is a failure to act or otherwise execute

their elected duties in compliance with statutory and constitutional requirements. The actions of

the Governor and the Attorney General have deprived and the enjoyment of marital

rights to which they are entitled under the constitutional guarantees of procedural due process,

substantive due process, and equal protection of the law.

SECOND CAUSE OF ACTION (Injunctive Relief)


77. Given the imminent birth of their daughter, and will suffer immediate

and irreparable harm unless the Court issues a temporary restraining order and permanent

injunction requiring the State to recognize their marital relationship.

78. The State is immediately and irreparably harming and through its

deprivation of reciprocal marital rights and its refusal to recognize the spousal decision-making

authority for emergency and other medical decisions, just days before will go into labor to

give birth to their first daughter.

79. Without the State's recognition of their marriage, and 's daughter will

suffer immediate and irreparable harm, and she will be deprived of the protections and fundamental

rights of association to as her second legal parent, including the legal effect of 's consent

to assisted reproduction, the presumptions of parentage, and the parental authority that arise when

a child is born within a marriage, under the Uniform Parentage Act, Utah Code § § 78B-15-1 0 1 et

seq. and state common law. Similarly, is immediately and irreparably harmed as a parent, in

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that she will be stripped of her fundamental parental rights and the authority and/or ability to

protect her daughter upon birth and make decisions to promote her wellbeing.

80. The temporary restraining order and injunction will not be adverse to the public

interest. There can be no public interest in refusing to recognize and protect the families and

children of same-sex couples, when those same rights are afforded to children and families headed

by opposite-sex parents. In other words, equal protection of the law prohibits the State from

denying marital rights based simply on the sex of either or as one of the parties to the

marriage.

81. The State's attempts to weaken this family by stripping one of the spouses of the

ability to protect the other during the potentially life-threatening event of giving birth demonstrates

the State's blatant disregard for the actual wellbeing of this family and directly contradict any

purported state interest in protecting families . The State's attack on this family, and other families

like it, is heartless and cruel, and it is creating unwarranted emotional distress during what should

be a happy time for this family. Such state actions have no legitimate purpose, and they serve no

greater public interest.

82. There is a substantial likelihood that and will prevail on the merits, as

they have vested substantive rights that cannot be altered without appropriate procedural due

process, they have a fundamental due process right to marriage, and there is no constitutionally

permissible basis to discriminate between their marriage and those of opposite-sex married

couples, both of whom have the right to establish a home, raise children, and enjoy the other

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privileges essential to the orderly pursuit of happiness of free persons, as recognized in Myers v.

Nebraska, 262 U.S. 399 (1923).

THIRD CAUSE OF ACTION (Declaratory Relief)


84. Utah Code § 78B-6-401(1) vests this Court with "the power to issue declaratory

judgments determining the rights, status, and other legal relations within its respective

jurisdiction. "

85. Pursuant to Utah Code §§ 78B-6-402 and 412, declaratory relief is particularly

appropriate where, as here, such a decree or judgment will "terminate controversy and remove

uncertainty. "

86. The Attorney General is a party to this action and has been served with notice of

these proceedings, in compliance with Utah Code § 78B-6-403. There are no other necessary or

appropriate parties to this action.

87. Pursuant to Utah Code § 78B-6-408, the rights, status, and legal relations flowing

from the marriage of and are properly subject to determination through declaratory

judgment in this Court.

88. Pursuant to Utah Code § 78B-6-409, the marital contract and determination of the

rights flowing therefrom are properly subject to declaratory judgment.

89. Pursuant to Utah Code § 78B-6-411, the award of equitable and just costs may be

awarded for upon declaratory judgment.

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90. Pursuant to Utah Rule of Civil Procedure S7, "[t]he court may order a speedy

hearing of any action for a declaratory judgment and may advance it on the calendar." Such

expedited hearing and resolution is particularly appropriate here, where the material facts are not

in dispute and the unborn child of and is due to be born at any time.

FOURTH CAUSE OF ACTION (Adjudication of Parentage)


92. This Court has jurisdiction to adjudicate parentage of any child born within this

state, pursuant to Utah Code §§ 78B-lS-103, 104, and 601.

93. and reside in Salt Lake County, and venue for the adjudication of

parentage is proper in this Court, pursuant to Utah Code § 78B-lS-60S.

94. and may initiate this parentage action before the birth of their daughter,

pursuant to Utah Code §§ 78B-lS-606 and 611.

95. All provisions of the Utah Uniform Parentage Act that refer or relate to

determinations of paternity apply with equal force and effect to determinations of maternity,

pursuant to Utah Code § 78B-lS-l 06.

Unrebutted Presumption of Parentage

96. A second parent-child relationship between and the child arises upon an

unrebutted presumption of parentage, pursuant to Utah Code § 78B-lS-20 1.

97. Under Utah Code § 78B-14-204(1)(c), a presumption of parentage arises where,

before the birth of the child, and "married each other in apparent compliance with the

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law, even if the attempted marriage is or could be declared invalid, and the child is born during the

invalid marriage or within 300 days after its termination by ... annulment [or] declaration of

invalidity."

98. Except for the purposes of enforcing child support obligations, the State has no

standing to challenge parentage, and such a challenge may only be brought by and as

the presumed parents, under Utah Code §§ 78B-1S-602, 603, and 607(1).

99. An adjudication of and 's joint parentage of their daughter is binding on

the State, pursuant to Utah Code § 78B-1S-623, and they should both be listed on their daughter's

birth certificate and recognized as her legal parents, pursuant to Utah Code § 78B-15-623.

Voluntary Declaration of Parentage

100. A second parent-child relationship between and the child also arises upon

's voluntary declaration of parentage, pursuant to Utah Code § 78B-lS-201(2)(b).

101. Upon the birth of their daughter, and should be permitted to sign a

voluntary declaration of parentage to establish their joint parentage of their daughter, pursuant to

Utah Code § 78B-lS-301.

102. and 's execution of a voluntary declaration of parentage should be given

the equivalent ofa legal finding of parentage, as provided in Utah Code §§ 78B-lS-302(1)(f) and

30S.

103. The State should be required to provide and a voluntary declaration of

parentage in a form prescribed by the Office of Vital Records, as required under Utah Code §§

78B-1S-302(5) and 311.

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Spousal Consent to Assisted Reproduction

104. A second parent-child relationship between and the child arose when , as

's spouse, consented to assisted reproduction and her insemination, pursuant to Utah Code §§

78B-15-201(2)(e) and 703.

105. consented to the assisted reproduction of in a signed record, in

compliance with Utah Code § 78B-15-704(1).

106. The anonymous sperm donor and selected has no legal relationship or

claim to their daughter, under Utah Code § 78B-15-70 1.

FIFTH CAUSE OF ACTION (42 U.S.C. § 1983 Relief)


108. Acting under the color of law, the State of Utah and the Governor and Attorney

General as its executive officials have violated 's and 's constitutional rights to procedural

due process, substantive due process, and equal protection of the law.

109. and have been injured and are entitled to declaratory, equitable, and

injunctive relief, pursuant to 42 U.S.C. § 1983.

110. and are entitled to recover their attorney fees and costs, incurred in

bringing and prosecuting this action, pursuant to 42 U.S.C. § 1983.

WHEREFORE, and respectfully request that the Court order, adjudge, and

decree that:

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1. This matter should be set for expedited hearing and resolution to avoid further harm

to and , and to mitigate the harm they have suffered up to this point.

2. and are awarded extraordinary relief, pursuant to Utah Rule of Civil

Procedure 6SB, and the State of Utah, the Governor, and the Attorney General are required to

recognize their marital relationship and provide them all of the rights, benefits, and privileges

pertaining thereto.

3. and are awarded a temporary restraining order, preliminary injunction,

and permanent injunction compelling the State of Utah, the Governor, and the Attorney General

to recognize their marital relationship and provide them all of the rights, benefits, and privileges

pertaining thereto.

4. and are awarded a declaratory judgment, decreeing their marriage to be

valid in the State of Utah and conferring the legal status, rights, duties, and privileges one-to

another pertaining thereto, including the parental presumptions and authority arising when a child

is born into a marital relationship.

5. and are adjudicated as the legal parents of their daughter, with all of the

rights, responsibilities, duties, and privileges pertaining thereto.

6. and are awarded their reasonable attorney fees and costs for having to

bring this action to vindicate their procedural due process, substantive due process, and the equal

protection of the law guaranteed under the constitutions ofthe United States and the State of Utah.

7. and are awarded such other and further relief as the Court deems

equitable and just.

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DATED this 23 rd day of __ --"-'Ja=n=u=ar:..,.Ly ____ -', 2014

DOLOWITZ HUNNICUTT, PLLC

/s/ Shane A. Marx SHANE A. MARX Attorney for Plaintiffs

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EXHIBIT 3-

REDACTED MOTION FOR TEMPORARY

RESTRAINING ORDER

(Doe v. State, Case No. 140900542)




EXHIBIT 4-

GOVERNOR HERBERT’S LETTER TO CABINET

(JANUARY 8, 2014)




Documents

2:14-cv-00055 #33