Appellate Case: 13-4178

Document: Date S T A01019229366 TE OF UTA H Filed: 04/04/2014

OFFICE OF THE ATTORNEY GENERAL

Page: 1

SEAN D. REYES
ATTORNEY GENERAL

________________________________________________________________________________________________________
SPENCER E. AUSTIN
Chief Criminal Deputy

PARKER DOUGLAS
General Counsel & Chief of Staff

BRIDGET K. ROMANO
Solicitor General

BRIAN L. TARBET
Chief Civil Deputy

April 4, 2014 Via electronic filing Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, Colorado 80257 Re: Kitchen v. Herbert, No. 13-4178 Response to Rule 28(j) citation of DeBoer v. Snyder, No. 2:12-cv-10285 (E.D. Mich. March 21, 2014), as supplemental authority

Ms. Shumaker, DeBoer does not undermine Utahs showing that its man-woman marriage definition satisfies the Fourteenth Amendment. 1. Like the district court here, DeBoer proceeds on a misunderstanding of rational-basis reviewespecially the principle that legislative choices are not subject to courtroom factfinding and may be based on rational speculation even if unsupported by evidence or empirical data. Heller v. Doe, 509 U.S. 312, 320 (1993). Thus, the courts findings of fact and its purported credibility determinations are irrelevantboth in that case and here. 2. Even so, DeBoer made one key conclusionignored by the Plaintiffs that reinforces the rationality of Utahs man-woman definition. Addressing whether social science evidence establishes that there are no differences between same-sex parenting and man-woman parenting, DeBoer acknowledged (at 17-18) that the testimony by Professors Marks, Price, and Allen had, on its face, shown that the no differences consensus has not been proved with scientific
__________________________________________________________________________________________
160 East 300 South P.O. Box 140856 Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101

Elisabeth A. Shumaker Appellate Case: 13-4178 April 4, 2014 Page 2

Document: 01019229366

Date Filed: 04/04/2014

Page: 2

certainty . And although the court elsewhere concluded there is substantial evidence favoring the no differences viewpoint, the court never disputed the conclusion that this viewpoint has not been proved with scientific certainty. That failure of proof buttresses Utahs conclusion that there exists at least a risk that, over the long run, children raised by same-sex couples will do worse than children raised by man-woman couples. Appellants Opening Br. at 62-69, 76; Reply Br. at 28-34. And that risk provides one of several independent bases supporting the rationality of Utahs definition, and requiring reversal. 3. Besides being irrelevant, the DeBoer courts results-oriented attacks on the studies and opinions presented by Professor Regnerus are misguided as a scientific matter. Although space does not permit an explanation of the courts analytical errors, which simply parroted the arguments of Professor Regnerus detractors, those errors are fully explained in the amicus brief filed on behalf of Professors Allen, Regnerus and others in this case. 4. The DeBoer courts analysis of the same-sex parenting issue is also irrelevant to Utahs concerns about the impact of the district courts redefinition of marriage on parental decision-making by heterosexual couples. Those rational concerns provide additional independent bases for reversal. Respectfully submitted, /s/ Gene Schaerr ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing brief required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses. /s/ Gene Schaerr