13-4178 Amicus Brief of D'Arcy Straub

8/13/2019 13-4178 Amicus Brief of D'Arcy Straub

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TABLE OF COTETS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

INTEREST OF THEAMICUS CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. The Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The Tripartite Test ofLemon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. The Effect Prong ofLemonand the Endorsement or

Disapproval of Religion or Particular Religious Beliefs . . . . 10

2. The Entanglement Prong ofLemonand Divisiveness . . . . . . 10

B. The Goals of the Establishment Clause . . . . . . . . . . . . . . . . . . . . . . 11

II. The Occurrence of the Terms Marriage and Marry in the Bible . . . . . 12

III. Marriage as a Single Religious and Governmental Institution . . . . . . . . . 13

IV. The Emergence of Civil Unions for Same-Sex Couples . . . . . . . . . . . . . . 14

A. Civil Unions for Same-Sex Couples in Vermont . . . . . . . . . . . . . . . 14

B. Civil Unions for Same-Sex and Opposite-Sex Couples

in Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. The Government Defining Marriage Violates the EstablishmentClause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. The Governments Involvement in the Same-Sex Marriage

Dispute Fails the Effect Prong ofLemon . . . . . . . . . . . . . . . . . . . . . 15

Appellate Case: 13-4178 Document: 01019200452 Date Filed: 02/10/2014 Page: 2Appellate Case: 13-4178 Document: 01019200531 Date Filed: 02/10/2014 Page: 2


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1. The Difficulty of Detecting Government Acts That Have

the Effect of Disapproving of Religion . . . . . . . . . . . . . . . . . 15

2. The Conduct of the Supreme Court Has the Effect of

Conveying a Message of Disapproval of a ParticularReligious Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The Governments Involvement in Defining Marriage Entangles

It With Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Government Efforts to Define Marriage Will Favor Some

Religions and Disfavor Others in Violation of the Establishment

Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VI. Reconciling the Tension Between the Establishment Clause and

Plaintiffs Claims Under the Equal Protection and Due Process

Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Destruction of Government and Degradation of Religion . . . . 21

B. The Equal Protection and Due Process Rights of Same-Sex

Couples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VII. The Plaintiffs Lack Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24



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TABLE OF AUTHORITIES

CASES

American Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th Cir. 2010) . . . . . 9, 10, 16

Baker v. State, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23

Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir.1997) . . . . . . . . . . . . . . 10, 16

Bowen v. Kendrick, 487 U.S. 589 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573 (1989) . . . . 10, 16

Engel v. Vitale, 370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 21, 22

Everson v. Bd. of Educ., 330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 20

Lee v. Weisman, 505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . 24

Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . 10, 12, 17-19, 21

Mueller v. Allen, 463 U.S. 388 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . . 24

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . 9

United States v. Windsor, 133 S. Ct. 2675 (2013) . . . . . . . . . . . . . . . . . . . . . 16-18

Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir.2008) . . . . . . . . . . . . . 9



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UITED STATES COSTITUTIO

Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATE STATUTES

Colo. Rev. Stat. 14-15-101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Colo. Rev. Stat. 14-15-104(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 23

Colo. Rev. Stat. 14-15-112(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Vt. Stat. Ann. tit 15, 1201 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Vt. Stat. Ann. tit 15, 1202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

BIBLE

Bible (King James Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Bible (New International Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21



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1 All parties have given their written consent for Straub to file this brief.

No counsel for a party authored this brief in whole or in part. No party or

a partys counsel contributed money that was intended to fund preparing or

submitting the brief. No person other than the amicus curiaecontributed money to

fund preparing or submitting it.

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ITEREST OF THEAMICUS CURIAE

DArcy Straub1is a potential congressional candidate. If elected to

Congress, Straub would sponsor legislation that prohibits the state and federal

governments from using the term marriage and its derivative forms to regulate

the union of all couples. The state and federal governments can easily use such

terms as civil union and united to legally provide the benefits and protections

of a union to all couples.

The issue of same-sex marriage has caused a significant amount of

divisiveness in the country, and Straub believes the ultimate source of this tension

comes from the government attempting to define a word that has biblical roots.

The government, however, can no more define the biblical term marriage than it

can sponsor prayer in public schools, place crosses along roadsides, promote

Christmas as a religious holiday through a nativity scene, and so forth. Thus, the

Establishment Clause forces what Straub desires to achieve legislatively the

removal of government from a religious matter.



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SUMMARY OF THE ARGUMET

Near the time of the formation of Jamestown in 1607, King James I

authorized an English translation of the Bible, known as the King James Version,

that was initially published in 1611. The translation of the Bible into the King

James Version yielded the English words marriage and marry in reference to a

union between two people. Although biblical references to marriage and

marry may be subject to interpretation, no debate exists to the concept that

interpretation of the Bible and religious beliefs are inextricably twined, and the

two can never part.

The Establishment Clause of the U.S. Constitution figuratively provides a a

wall of separation between Church and State. Everson v. Bd. of Educ., 330 U.S.

1, 16 (1947). Until recent times, marriage has peacefully coexisted as a religious

and governmental institution since the adoption and ratification of the U.S.

Constitution in the 18th century. Times change, however, and what was once

constitutional is no longer the case. Current efforts by the federal and state

governments to define marriage based upon gender implicate religious beliefs, and

consequently such efforts by any court, legislature, or executive cannot be

undertaken without becoming entangled in a divisive religious issue and

advancing one religious belief over another.



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In contemporary times, several states have enacted legislation that creates

civil unions for same-sex couples that legally provide the benefits and protections

of an opposite-sex marriage. The employment of the term civil union and

accompanying legislative framework now represents the necessary path the federal

and state governments must take to govern the unions of all couples, regardless of

sexual orientation. Use of the biblical terms marriage or marry is unnecessary

to confer the legal benefits and protections of unions to all couples, and any use of

these biblical terms in federal or state law especially with respect to defining

marriage in terms of gender violates the Establishment Clause.

The same-sex couples on appeal claim a fundamental right to marriage, but

in view of the Establishment Clause, the only fundamental right that exists for any

couple is the right that enables allcouples to enter into a state-sponsored civil

union. The extension of a civil union into the realm of a marriage implicates

interpretation of biblical terms and religious beliefs. Consequently, plaintiffs lack

Article III standing no court can redress their grievance regarding marriage

without violating the Establishment Clause. To satisfy their desire to be married,

the plaintiffs possess the religious freedom to select a church that will perform a

marriage ceremony for a same-sex couple. To the extent the plaintiffs wish to

exert their rights to gain the legal benefits and protections of a civil union, the



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court should afford the plaintiffs the opportunity to amend their complaint upon

remand.

ARGUMET

I. The Establishment Clause

A. The Tripartite Test of Lemon

The Establishment Clause provides that Congress shall make no law

respecting an establishment of religion . . . U.S. Const. amend I. Through the

Fourteenth Amendment, the Establishment Clause also applies to the legislative

power of the States and their political subdivisions.American Atheists, Inc. v.

Duncan, 616 F.3d 1145, 1156 (10th Cir. 2010) (quoting Santa Fe Indep. Sch. Dist.

v. Doe, 530 U.S. 290, 301 (2000));see also Weinbaum v. City of Las Cruces, 541

F.3d 1017, 1029 (10th Cir.2008).

Courts evaluate potential violations of the Establishment Clause through the

Lemontripartite test: First, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that neither advances nor

inhibits religion; finally, the statute must not foster an excessive government

entanglement with religion. American Atheists, 616 F.3d at 1156 (quotingLemon

v. Kurtzman, 403 U.S. 602, 612-13 (1971)). If a state action violates any one of

the three prongs of theLemontest, the state action violates the Establishment



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Clause and is unconstitutional. Id.

1. The Effect Prong of Lemon and the Endorsement or

Disapproval of Religion or Particular Religious Beliefs

In evaluating a state action under the effect prong ofLemon, the court asks

whether, irrespective of government's actual purpose, the practice under review in

fact conveys a message of endorsement or disapproval. Id.at 1157 (quoting

Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)). The

government impermissibly endorses religion if its conduct has . . . the effect of

conveying a message that religion or a particular religious belief is favored or

preferred. Bauchman ex. rel. Bauchman v. W. High Sch., 132 F.3d 542, 551

(10th Cir.1997) (quoting County of Allegheny v. Am. Civil Liberties Union, 492

U.S. 573, 592-93 (1989)). Alternatively, [t]he government [disapproves] of

religion if its conduct has . . . the effect of conveying a message that religion or a

particular religious belief is [not] favored or [not] preferred. See id.

2. The Entanglement Prong of Lemon and Divisiveness

TheLemonCourt recognized [a] broader base of entanglement of yet a

different character [that] is presented by [a] divisive political potential. Lemon,

403 U.S. at 622. Ordinarily political debate and division, however vigorous or

even partisan, are normal and healthy manifestations of our democratic system of



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government, but political division along religious lines was one of the principal

evils against which the First Amendment was intended to protect. Id.(citing

Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692

(1969)). Political divisiveness within theLemontest, however, must be regarded

as confined to cases where direct financial subsidies are paid to parochial schools

or to teachers in parochial schools. Bowen v. Kendrick, 487 U.S. 589, 617 n.14

(1988) (quotingMueller v. Allen, 463 U.S. 388, 404 n.11 (1983)).

Nonetheless, divisiveness is a factor to be considered in an Establishment

Clause analysis. In striking down a school-sanctioned prayer at a high school

graduation ceremony, the Supreme Court noted the relevance of the potential for

divisiveness. Lee v. Weisman, 505 U.S. 577, 588 (1992). In striking down

school prayer in public schools, divisiveness was similarly noted: [t]he

philosophy is that if government interferes in matters spiritual, it will be a divisive

force. The First Amendment teaches that a government neutral in the field of

religion better serves all religious interests. Engel v. Vitale, 370 U.S. 421, 443

(1962) (Douglas, J., concurring).

B. The Goals of the Establishment Clause

The tripartite test ofLemonis consistent with the principles stated in the

landmark case ofEverson v. Board of Education. "Neither [a state nor the federal



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2Available online at www.kingjamesbibleonline.org.

12

government] can pass laws which aid one religion, aid all religions, or prefer one

religion over another." Everson, 330 U.S. at 15. The legal framework of the

Establishment Clause ensure[s] that the organs of government remain strictly

separate and apart from religious affairs, for a union of government and religion

tends to destroy government and degrade religion.Lynch, 465 U.S. at 698

(quotingEngel, 370 U.S. at 431) (Brennan, J., dissenting).

II. The Occurrence of the Terms Marriage and Marry in the Bible

English translations of the Bible predate the origin of our nation, with the

initial publishing of the King James Version of the Bible occurring in 1611. The

following passages from the King James Version2, which are presented in Early

Modern English, contain or directly reference the words marriage or marry:

I will therefore that the yonger women marry, beare children, guid the

house, giue none occasion to the aduersary to speake reprochfully.

1 Timothy5:14 (King James).

And Iesus answering, said vnto them, The children of this world,

marrie, and are giuen in marriage:

Luke20:34 (King James).



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Neither shalt thou make marriages with them: thy daughter thou shalt

not giue vnto his sonne, nor his daughter shalt thou take vnto thy

sonne.

Deuteronomy7:3 (King James).

For as in the dayes that were before the Flood, they were eating, and

drinking, marrying, and giuing in mariage, vntill the day that Noe

entred into the Arke,

Matthew24:38 (King James).

For when they shall rise from the dead, they neither marry, nor are

giuen in marriage: but are as the Angels which are in heauen.

Mark12:25 (King James).

Although the context of some of the above passages infer that marriage is

between a man and a woman, the religious perspective of marriage to assess the

legitimacy of same-sex marriage for this appeal is not the point. Rather, the

passages establish that marriage and marry occur within the Bible, and

consequently government attempts to define marriage based upon gender implicate

religious beliefs.

III. Marriage as a Single Religious and Governmental Institution

The Founding Fathers did not necessarily find the presence of religion

within the government particularly troubling. In his Farewell Address, George

Washington writes, Of all the dispositions and habits which lead to political



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prosperity, religion and morality are indispensable supports. Given this initial

attitude towards religion in political affairs by an esteemed Founding Father, the

emergence of marriage as a single religious and governmental institution is not a

surprising result no reason seemingly existed to separate the two. The

emergence of the issue of gay rights in contemporary society marks the end of the

compatibility of marriage as a religious institution and marriage as a governmental

institution. The two can no longer exist as a single institution.

IV. The Emergence of Civil Unions for Same-Sex Couples

A. Civil Unions for Same-Sex Couples in Vermont

Civil unions arose in Vermont after the Vermont Supreme Court held in

1999 that same-sex couples were not entitled to a marriage license, but they were

entitled to the same benefits and protections that the law affords married

opposite-sex couples. Baker v. State, 744 A.2d 864, 886 (Vt. 1999). In response

to the Vermont Supreme Court directive to create a legislative scheme that

provides same-sex couples with the benefits and protections of an opposite-sex

marriage, the Vermont Legislature employed the term civil union in the resulting

statutory scheme. SeeVt. Stat. Ann. tit 15, 1201 et seq. The statutory scheme

requires that a civil union must be between two people of the same sex. Id.1202.



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B. Civil Unions for Same-Sex and Opposite-Sex Couples in Colorado

In 2013 Colorado similarly created a statutory scheme to extend the benefits

and protections of marriage laws to same-sex couples. SeeColo. Rev. Stat. 14-

15-101 et seq. In contrast to the Vermont statutory scheme, civil unions are also

available to opposite-sex couples as well. See id. 14-15-104(1)(a).

Additionally, [a] priest, minister, rabbi, or other official of a religious institution

or denomination or an Indian nation or tribe is not required to certify a civil union

in violation of his or her right to the free exercise of religion guaranteed by the

first amendment to the United States constitution . . . . Id. 14-15-112(4).

V. The Government Defining Marriage Violates the Establishment Clause

A. The Governments Involvement in the Same-Sex Marriage Dispute

Fails the Effect Prong of Lemon

1. The Difficulty of Detecting Government Acts That Have theEffect of Disapproving of Religion

Despite the long-running dispute over same-sex marriages, the applicability

of the Establishment Clause andLemonseems to have gone largely undetected by

the legal community. Perhaps this is a result of the effect prong ofLemon

frequently involving the government endorsingreligion and not disapprovingof

religion. It is easy to detect government activities that have the effect of

communicating a message that endorses religion, such as the displaying of large



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crosses along the roadsides in Utah. SeeAmerican Atheists, 616 F.3d at 1150. A

government action that communicates a message that disapproves of religion may

be harder to detect because this message is partially consistent with the general

principle that the church and state remain separate.

Disapproval under the effect prong ofLemonexists if the government

conduct has the effect of conveying a message that a particular religious belief is

not preferred or not favored. Bauchman, 132 F.3d at 551 (quoting County of

Allegheny, 492 U.S. at 592-93). When the government becomes involved in

defining marriage, religious beliefs become relevant due to the occurrence of the

words marriage and marry in the Bible. Thus, any position by the government

that supports same-sex message has the potential effect of conveying to the public

that a particular religious belief to the contrary is not preferred and not favored.

2. The Conduct of the Supreme Court Has the Effect of Conveying

a Message of Disapproval of a Particular Religious Belief

In United States v. Windsor, which held 3 of the Defense of Marriage Act

(DOMA) is unconstitutional, Justice Scalia made the following observation about

comments made within the majority opinion:

But the majority says that the supporters of this Act acted with malice

with the"purpose" (ante, at 2695) "to disparage and to injure"

same-sex couples. It says that the motivation for DOMA was to

"demean," ibid.; to "impose inequality," ante, at 2694; to "impose . . .



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a stigma," ante, at 2692; to deny people "equal dignity," ibid.; to

brand gay people as "unworthy," ante, at 2694; and to "humiliat[e]"

their children, ibid.

United States v. Windsor, 133 S. Ct. 2675, 2708 (2013) (Scalia, J., dissenting).

Justice Scalia further stated, It is one thing for a society to elect change; it is

another for a court of law to impose change by adjudging those who oppose it

hostes humani generis, enemies of the human race. Id. at 2709.

The comments of the majority opinion that Justice Scalia summarizes are

directed to those who support DOMA. These comments, however, are equally as

applicable to religious institutions that do not support same-sex marriage. The

majority opinion in Windsorhas the effect of conveying a message of disapproval

of religious institutions that do not support same-sex marriage, because these

institutions serve to disparage and to injure, demean, deny people equal

dignity, brand people as unworthy, and to humiliate their children. The

majority opinion or conduct of the Supreme Court in Windsorhas the effect of

conveying the message that religious doctrines that do not support same-sex

marriage are not preferred and not favored. See Lynch, 465 U.S. at 690.

No doubt the Supreme Court did not intend to convey a message of

disapproval about religious institutions or people of faith that do not embrace

same-sex marriages, as the intent of the Supreme Court was to deliver an opinion



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B. The Governments Involvement in Defining Marriage Entangles It

With Religion

Political divisiveness along religious lines is evidence of excessive

government entanglement with religion. Lemon, 403 U.S. at 622. However,

holding a practice unconstitutional based only upon political divisiveness which

is more than likely involved in the same-sex marriage dispute is simply too

speculative an enterprise. Lynch, 465 U.S. at 689. Rather, the constitutional

inquiry should focus ultimately on the character of the government activity that

might cause such divisiveness, not on the divisiveness itself. Id.

The character of the governments efforts to define marriage based upon

gender is this: people of faith and religious institutions are violated when the

government uses a term in the Bible to enact laws that ultimately contradict their

religious beliefs. The source of the deep divisiveness associated with the issue of

same-sex marriage is the government entangling itself with a biblical term that

implicates peoples religious beliefs.

C. Government Efforts to Define Marriage Will Favor Some Religions

and Disfavor Others in Violation of the Establishment Clause

As documented in the opening brief of Utah Governor Herbert, et al., at

least five religions recognize same-sex marriages: the Episcopal Church, the

Presbyterian Church (USA), the Evangelical Lutheran Church, Reform Judaism,



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and the United Church of Christ. Opening Br. of Gary R. Herbert, et al. at 91 n.59.

Thus, no matter how the government defines marriage, the government definition

of marriage will be consistent with the views of some churches and inconsistent

with others.

Before the emergence of theLemontripartite test, a fundamental tenet of the

Establishment Clause recognized that "[n]either [a state nor the federal

government] can pass laws which aid one religion, aid all religions, or prefer one

religion over another." Everson, 330 U.S. at 15. Given this tenet, the government

will run afoul of the Establishment Clause whenever it attempts to define the

union of a couple with the biblical term marriage. Even if a state or federal

government maintains the traditional definition of marriage between a man and a

woman, the government violates the Establishment Clause because this definition

comes at the expense of churches that support same-sex marriages. Times change

and with the emergence of same-sex unions as a societal, religious, and legal issue,

the governments application of the term marriage to any couple is now

unconstitutional.



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VI. Reconciling the Tension Between the Establishment Clause and

Plaintiffs Claims Under the Equal Protection and Due Process Clauses

A. The Destruction of Government and Degradation of Religion

[A] union of government and religion tends to destroy government and

degrade religion.Lynch, 465 U.S. at 698 (quotingEngel, 370 U.S. at 431)

(Brennan, J., dissenting). The issue of same-sex marriage now before the court

has fulfilled this expectation.

The issue of same-sex marriage has degraded religion, both in terms of

secularists who attack people of faith and people who characterize themselves as

Christian yet vehemently chastise homosexuals. The disputatious individuals who

exhibit vile hatred towards homosexuals ultimately betray the Christian faith and

the word of Jesus Christ A new command I give you: Love one another. As I

have loved you, so you must love one another. By this everyone will know that

you are my disciples, if you love one another. John13:34-35 (New International

Version).

The issue of same-sex marriage has been destructive to the nations form of

self-governance. The Constitution should readily afford equal rights to all its

citizens, regardless of sexual orientation. But when a gay rights issue incorporates

an element of religion, the battle lines readily appear for a war in which, as Justice



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Brennan posited, much is lost.

Marriage, based upon its biblical roots, is a religious institution. In view of

the Establishment Clause, the government can no more decide the legitimacy of

same-sex marriages than it can weigh in on an issue of importance between the

Jewish and Christian faiths the resurrection of Jesus Christ. While many people

are desirous of the government to break the tie on the issue of same-sex

marriage, the Constitution forbids it to do so and the government must remain

neutral. See Engel, 370 U.S. at 443 (stating a government neutral in the field of

religion better serves all religious interests) (Douglas, J., concurring)).

B. The Equal Protection and Due Process Rights of Same-Sex Couples

The issue of same-sex marriage entails equality same-sex couples desire

its government to recognize them as equals to opposite-sex couples. The

Establishment Clause prevents this equality to be gained by the government

defining marriage to include same-sex couples. Consequently, equality can only

be achieved before the government and under the Equal Protection and Due

Process Clauses by limiting all couples to civil unions.

Using the same rationale of any court that holds a same-sex couple has a

fundamental right to marriage, such as the district court held in this case, all

couples possess a fundamental right to be united under state laws that regulate



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civil unions. A couple may extend their civil union to marriage and become

married before a church, but conducting and participating in a marriage ceremony

involves religious decisions left to the particular church and couple.

Colorado law and the Vermont Supreme Court provide the workable legal

framework to achieve equality for those who wish to be united as a same-sex

couple. The Vermont Supreme Court held that a same-sex couple could not be

married under the laws of Vermont, but instructed the Vermont legislature to

create a statutory scheme that provides same-sex couples with the legal benefits

and protections of an opposite-sex marriage. Baker, 744 A.2d at 886. The

Establishment Clause now demands that no couple may be married under the laws

of the state, but the Equal Protection and Due Process Clauses demand the federal

and state governments create a statutory scheme that provides all couples with the

legal benefits and protections of a civil union. Colorado law, which established

that a couple may enter into a civil union regardless of sexual orientation, see

Colo. Rev. Stat. 14-15-104(1)(a), serves as a starting point for such efforts.

VII. The Plaintiffs Lack Standing

Article III standing requires the plaintiffs to have suffered a concrete and

particularized injury, that the injury be fairly traceable to the challenged action

of the defendant, and that it is likely, as opposed to merely speculative, that the



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injury will be redressed by a favorable decision. Petrella v. Brownback, 697 F.3d

1285, 1293-94 (10th Cir. 2012) (quotingLujan v. Defenders of Wildlife, 504 U.S.

555, 561-62 (1992)).

The plaintiffs seek to be married and receive a state-sponsored marriage

license, but the Establishment Clause prevents the state from conducting activities

involving the biblical term marriage. Accordingly, the plaintiffs lack standing

because a decision by this court cannot redress their desire to be married and

receive a marriage license. To become married, the plaintiffs are free to exercise

their religious freedom and find a church that will conduct a marriage ceremony

for same-sex couples. To the extent the plaintiffs desire the legal benefits and

protections of a civil union, the plaintiffs should be afforded the opportunity to

assert their rights to a civil union and amend their complaint upon remand.

COCLUSIO

The district court found the plaintiffs have a fundament right to marriage,

but state-sponsored marriages violate the Establishment Clause. Thus, the



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decision of the district court should be reversed.

Respectfully submitted this 10th day of February, 2014.

s/ DArcy W. StraubDArcy W. Straub

Attorney at Law

6772 W. Ida Dr. No. 327

Littleton, CO 80123

303-794-4109

pro se



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CERTIFICATE OF ECF COMPLIACE

AD PRIVACY REDACTIOS

I hereby certify that:

1) a copy of the foregoing brief, as submitted in digital form via the courts ECF

system, is an exact copy of the written document filed with the Clerk;

2) the PDF file of this brief submitted through the courts CM/ECF system was

scanned for viruses with AVG Anti-Virus Free Edition, Version 9.0.932, February

10, 2014, and, according to the program, is free of viruses; and

3) all required privacy redactions have been made.

Date: February 10, 2014

s/ DArcy Straub



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CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of February, 2014, I have provided service of

the foregoing Brief of DArcy W. Straub, Potential Congressional Candidate,

asAmicus Curiae in Partial Support of Defendants-Appellants and Reversalvia the courts CM/ECF, which will send notification of the filing to the following

parties:

Case o. 13-4178:

David C. Codell

[email protected]

Kathryn Kendell

[email protected]

James E. Magleby

[email protected]

Shannon Price Minter

[email protected]

Jennifer Fraser Parrish

[email protected]

Peggy Ann Tomsic

[email protected]

Attorneys for Plaintiffs-Appellees

John J. Bursch

[email protected]

Philip S. Lott

[email protected]

Stanford E. Purser

[email protected]

Gene C. Schaerr

[email protected]

Monte Neil Stewart

[email protected]

Attorneys for Defendants-Appellants

Ralph E. Chamness

[email protected]

Darcy Marie Goddard

[email protected]

Attorneys for Defendant Swensen



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Case os. 14-5003 & 14-5006

Philip Craig Bailey

[email protected]

Don Gardner Holladay

[email protected]

Timothy P. Studebaker

[email protected]

Joseph Thai

[email protected]

James Edward Warner, III

[email protected]

Attorneys for Plaintiffs-Appellees /

Cross-Appellants

Kerry W. Kircher

[email protected]

Brently C. Olsson

[email protected]

Kevin H. Theriot

[email protected]

Attorneys for Defendants-

Intervenors

Date: February 10, 2014

Byron Jeffords Babione

bbabione@

alliancedefendingfreedom.org

James Andrew Campbelljcampbell@


Holly L. Carmichael

[email protected]

John David Luton

[email protected]

David Austin Robert Nimocks

animocks@


Brian W. Raum

[email protected]

Dale Michael Schowengerdt

[email protected]

Attorneys for Defendant-Appellant /

Cross-Appellee

W. Scott Simpson

[email protected]

Attorney for Defendant

s/ DArcy Straub


Documents

13-4178 Amicus Brief of D'Arcy Straub