Case 2:16-cv-00659-DN-EJF Document 50 Filed 05/30/17 Page 1 of 37

DAVID N. WOLF (6688)
Assistant Utah Attorney General
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: dnwolf@utah.gov
Counsel for Defendants Governor Gary R. Herbertand Attorney General Sean Reyes

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISIONCHRIS SEVIER, JOHN GUNTER JR., and
WHITNEY KOHL
Plaintiffs,

STATE DEFENDANTS’ MOTION TO
DISMISS PLAINTIFFS’ AMENDEDCOMPLAINT AND SUPPORTINGMEMORANDUMv.
BRYAN E. THOMPSON, in his official
capacity as Clerk of Utah County; GARY R.
HERBERT, in his official capacity as
Governor of Utah; SEAN REYES, in his
official capacity as Attorney General of Utah.

Case No.: 2:16-cv-00659-DN
Judge: David Nuffer
Magistrate Judge: Evelyn J. Furse

Defendants.

Pursuant to Federal Rules of Civil Procedures 8(a), 12(b)(1), and 12(b)(6), Defendants
Utah Governor Gary R. Herbert and Utah Attorney General Sean Reyes (“State Defendants”)
move to dismiss Plaintiffs Chris Sevier, John Gunter Jr., and Whitney Kohl’s (“Plaintiffs”)
Amended Complaint.

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TABLE OF CONTENTSINTRODUCTION ....................................................................................................................... viii
PROCEDURAL BACKGROUND ................................................................................................ ix
FACTUAL BACKGROUND ......................................................................................................... x
LEGAL STANDARDS GOVERNING DISMISSAL................................................................. xiii
A.

Standard for Dismissal Under Rule 8. ...................................................................................... xiii

B.

Standards for Dismissal Under Rule 12.................................................................................... xiii

C.

Standard for Dismissal Under Rule 19. ..................................................................................... xv

ARGUMENT .................................................................................................................................. 1
1. Plaintiffs’ Amended Complaint Continues to Violate Fed. R. Civ. P. Rule 8 and Rule12(f)........................................................................................................................................ 1
2. The Court Must Dismiss Gunter’s and Kohl’s Claims for Failure to Join a Necessary
Party. ...................................................................................................................................... 3
3. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Claims Because They Do
Not Have Standing to Assert Them. ...................................................................................... 4
4. District Court Judges Lack Authority to Overturn Decisions Rendered by the 10th
Circuit Court of Appeals and the United States Supreme Court. .......................................... 7
5. Sevier’s Factual Allegations Are Not Plausible............................................................... 9
6. Plaintiffs do Not State a Constitutional Injury for Which Relief May be Granted. .... 10
A. Plaintiffs Have Not Alleged a Violation of Their Substantive Due Process
Rights. ........................................................................................................................... 10
B.

Plaintiffs Have Not Alleged a Violation of Their Equal Protection Rights. ....... 11C.

Plaintiffs Has Not Alleged a Tenable Violation of the Establishment Clause. ... 16i.

The “Purpose” Prong. ...................................................................................... 18ii.

The “Primary Effect” Prong. ........................................................................... 18iii.

The “Excessive Entanglement with Religion” Prong. ..................................... 19

D. Plaintiffs Cannot State a Plausible Claim for Relief for Violation of § 1983 as an
Independent Cause of Action. ....................................................................................... 20
CONCLUSION ............................................................................................................................. 21ii

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TABLE OF AUTHORITIES
Cases
Albright v. Oliver, 510 U.S. 266 (1994)...................................................................................................... 20
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) .......................................................................... 7
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)............................................................................................ xiv
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................ xiv, xv
Barnson v. U.S., 531 F.Supp. 614 (D. Utah 1982) ..................................................................................... xiv
Barrows v. Jackson, 346 U.S. 249 (1953) .................................................................................................... 6
Bauchman for Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997) ............................ 17, 18, 19
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................ xv
Board of County Commissioners of Sweetwater County v. Geringer, 297 F.3d 1108 (10th Cir. 2002) ....... 4
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) .............................................................. 10
Bowen v. Kendrick, 487 U.S. 589 (1988).................................................................................................... 19
Brown v. Woodland Joint Unified Sch., 27 F.3d 1373 (9th Cir. 1994) ....................................................... 16
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ................................................... 18
Davis v. United States, 192 F.3d 951 (10th Cir. 1999) ............................................................................. 1, 4
Dion v. Rieser, 285 P.3d 678 (N.M. Ct. App. 2012) ..................................................................................... 9
Edwards v. Aguillard, 482 U.S. 578 (1987)................................................................................................ 18
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)................................................................ 5, 6, 7
Epperson v. Arkansas, 393 U.S. 97 (1968) ................................................................................................. 16
Everson v. Bd. of Educ., 330 U.S. 1 (1947) .......................................................................................... 16, 19
Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994)........................................................ 16
Francis Oil & Gas, Inc. v. Exxon Corp., 661 F.2d 873 (10th Cir.1981)................................................. xv, 1iii

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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ................................. 4
Garcia v. Tyson Foods, Inc., 534 F.3d 1320 (10th Cir. 2008) ...................................................................... 7
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) .................................................. 2
Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985) ............................................................. 17
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) ....................................................................................... xv
Hall v. Witteman, 584 F.3d 859 (10th Cir. 2009) ...................................................................................... xiv
Heller v. Doe by Doe, 509 U.S. 312 (1993) ................................................................................................ 11
Hollingsworth v. Perry, -- U.S. --, 133 S. Ct. 2652, (2013).......................................................................... 5
Id. Bank of Am., N.A. v. Mog, lia, 330 F.3d 942 (7th Cir.2003) ............................................................... 7, 8
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) ................................................................................. 21
Judkins v. Jenkins, 996 F.Supp.2d 1155 (D. Utah 2014) ............................................................................ 10
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014) ................................................................................. xi, 7
Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) ...................................................................... xi, xii
Lee v. Weisman, 505 U.S. 577 (1992) ......................................................................................................... 19
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................................................ 17, 19
Leverington v. City of Colo. Springs, 643 F.3d 719 (10th Cir. 2011) ........................................................ xiv
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ............................................................................................ 4
Lynch v. Donnelly, 465 U.S. 668 (1984)............................................................................................... 18, 19
Marie v. Moser, 122 F.Supp.3d 1085 (D. Kansas 2015) ............................................................................ 12
McGowan v. Maryland, 366 U.S. 420 (1961) ......................................................................................... 6, 18
Middleton v. Stephenson, 749 F.3d 1197 (10th Cir. 2014) ........................................................................ xiv
Mitchell v. City of Colo. Springs, Colo., 194 Fed. Appx. 497 (10th Cir. 2006) ........................................ xiii
Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) ...................................................... 16iv

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Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10 Cir. 2007) ................................................ xiii
O'Connor v. Washburn University, 416 F.3d at 1227 (2005) ............................................................... 18, 19
Obergefell v. Hodges, 135 S.Ct. 2584 (2015) ................................ xii, xiii, 10, 11, 12, 13, 14, 15, 16, 18, 20
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) .. xiv
Phillips v. Carey, 638 F.2d 207 (10th Cir. 1981).......................................................................................... 2
Pierson v. Long, No. 32,688, 2013 WL 4538119 (N.M. Ct. App. July 23, 2013) ........................................ 9
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)........................................................................................................................................................ xv, 1, 4
Reno v. Flores, 507 U.S. 292 (1993) .......................................................................................................... 10
Reynolds v. United States, 98 U.S. 145 (1879) ........................................................................................... 15
Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407 (10th Cir. 1996).................................. xv
Roe v. Patton, case no. 2:15-cv-00253-DB, 2015 WL 4476734 (D. Utah, July 22, 2015) ......................... 12
Romer v. Evans, 517 U.S. 620 (1996) ................................................................................................... 11, 12
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959) ................................................... xiv
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) ................................................................... 17
Singleton v. Wulff, 428 U.S. 106 (1976) ....................................................................................................... 6
Smith v. Bd. of Sch. Comm'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987) ................................. 17, 19
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169 (10th Cir. 1979) ....................... xv
State v. Holm, 137 P.3d 726 (Utah 2006) ................................................................................................... 16
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ............................................................ xv
Tennille v. W. Union Co., 809 F.3d 555 (10th Cir. 2015) ............................................................................. 5
U.S. v. Enjady, 134 F.3d 1427 (10th Cir. 1998).......................................................................................... 11
U.S. v. Kirby, 490 Fed. Appx. 113 (10th Cir. 2012) ..................................................................................... 7
Wallace v. Jaffree, 472 U.S. at 56 (1985). .................................................................................................. 18v

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Washington v. Glucksberg, 521 U.S. 702 (1997).................................................................................. 10, 13
Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017 (10th Cir. 2008) ............................................. 17, 19
Wells v. City and Cnty. of Denver, 257 F.3d 1132 (2001) .......................................................................... 16
Wooley v. Maynard, 430 U.S. 705 (1977) ................................................................................................. xiv
Zablocki v. Redhail, 434 U.S. 374 (1978)................................................................................................... 14

Statutes
NMSA 1978, § 40–1–1 (1915) ..................................................................................................................... 9
U.S. CONST. amend. I, cl. 1 ...................................................................................................................... 16
U.S. CONST. amend. XIV, § 1............................................................................................................. 10, 11
U.S. CONST. art. III, § 2 .............................................................................................................................. 4
Utah Code Ann. 30-1-2, 30-1-4.1 ................................................................................................................ xi
Utah Code Ann. § 30-1-2(5) ......................................................................................................................... x
Utah Code Ann. § 30-1-4.1 ........................................................................................................................... x
Utah Code Ann. §§ 30-1-9 and 30-1-4.5 ...................................................................................................... 9
Utah Code § 17-20-5(1) ................................................................................................................................ 6
Utah Const. art. I, § 29 ................................................................................................................................. xi

RulesFed. R. Civ. P. 10(c) ................................................................................................................................... xv
Fed. R. Civ. P. 12(b)(1)................................................................................................................................. 7
Fed. R. Civ. P. 12(b)(6)............................................................................................................................... 13
Fed. R. Civ. P. 19(a) ................................................................................................................................. 1, 3
Fed. R. Civ. P. 8(a)(2) ................................................................................................................................ xiii
Fed.R.Civ.P. 19(b) ........................................................................................................................................ 1viCase 2:16-cv-00659-DN-EJF Document 50 Filed 05/30/17 Page 7 of 37

Federal Rules of Civil Procedures 8(a), 12(b)(1), and 12(b)(6) ..................................................................... i
Rule 12 .................................................................................................................................................. ii, xiii
Rule 12(f) .................................................................................................................................................. 1, 2
Rule 8 ................................................................................................................................. ii, viii, x, xiii, 1, 3

Other Authorities
Divorce Reform: Rights Protections in the New Swaziland, 8 Geo. J. Gender & L. 883 (2007)................ 14
H.J.R. 25, §§ 2-3 (2004) .............................................................................................................................. xi
Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting
Reynolds in the Light of Modern Constitutional Jurisprudence, 5 N.Y.U.J. Legis. & Pub. Pol’y 225(2001) ............................................................................................................................................... 14, 15viiCase 2:16-cv-00659-DN-EJF Document 50 Filed 05/30/17 Page 8 of 37

INTRODUCTION
Unhappy with the courts’ recent expansion of the definition of marriage, Plaintiffs ask
this Court to overturn rulings of the United States Supreme Court and the 10th Circuit Court ofAppeals and limit the definition of marriage to one man and one woman.1 The Court should
dismiss Plaintiffs’ claims for relief because it lacks the authority to overturn the decisions of theUnited States Supreme Court and the Tenth Circuit.
Arguing in the alternative, Plaintiffs contend that because the courts have recognizedsame-sex individuals’ right to marry, this Court should further expand the right to marry toinclude unions between a person and a laptop computer and unions between multiple partners.
Although their Amended Complaint is far from a model of clarity, it appears Plaintiffs claim theState has violated their constitutional rights to due process, equal protection and the free exerciseof religion by denying them the right to marry an inanimate object or multiple partners. These
claims are untenable as a matter of law because Plaintiffs lack standing to bring these claims andthe right to marry has not been indefinitely expanded, nor should it be. Simply put, marrying alaptop computer or multiple partners are not rights protected by the Constitution.
The Court should dismiss Plaintiffs’ claims against the State Defendants because 1)
Plaintiffs’ Complaint does not comply with Rule 8; 2) Plaintiffs failed to join a necessary party;
3) Plaintiffs lack standing to bring their Section 1983 claims on behalf of themselves or others;
and 4) Plaintiffs fail to state any valid constitutional injuries upon which relief may be granted.

1

See Pls.’ Am. Compl. Doc. 46, pp. 10, 12.

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PROCEDURAL BACKGROUNDOn February 16, 2016, Sevier filed a Complaint seeking similar relief.2 Defendants
moved to dismiss.3 In response, Sevier sought to amend his Complaint.4 The Court denied
Sevier’s request as untimely and ruled that his original Complaint was the operative Complaint.5
On June 22, 2016, Sevier moved to voluntarily dismissed his Complaint. 6 Sevier based his
request for dismissal on his assertion that “Judge Pead is clearly engaging in intellectual
dishonesty despite his circular self-justifying proclamation that he takes his integrity seriously”
and his belief “that Judge Pead wants to keep these matters at the original complaint stage
because he feels that it is his purpose on the bench to get rid of controversy and collect apaycheck in exchange for what amounts to dishonorable dereliction of duty that enables judicial
fraud, waste, mismanagement, and abuse.”7 Sevier further questioned whether “Judge Pead has
the backbone for the kind of honesty it is going to take to clear up what amounts to unbridledjudicial corruption; racketeering in fraud and obscenity; and even treason.”8 Notwithstanding
plaintiff’s repeated attacks on the integrity of the courts, the court properly analyzed the motions
before it and dismissed his complaint.9
On June 20, 2016, Sevier filed a substantially similar Complaint.10 Defendants again
moved to dismiss.11 In response, Sevier again sought to amend his Complaint.12 The Court
2

See Sevier v. Herbert et al, Case No. 2:16-cv-00124-JNP-DBP (doc. 3).
Id. doc. 16.
4
Id. doc. 18.
5
Id. doc. 33.
6
Id. doc. 37.
7
Id. at 2, 3.
8
Id. at 5.
9
Id. doc. 4.
10
See Compl. 12, doc. 1.
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allowed Sevier to amend his Complaint, but noted the proposed Amended Complaint13 did notsatisfy the requirements of Federal Rules of Civil Procedure 8 and 12(f).14 Accordingly, theCourt specifically instructed Sevier that his Amended Complaint must comply with the Federal
Rules of Civil Procedure.15 On May 2, 2017, Plaintiffs filed their Amended Complaint.16 And,for the third time, Defendants move to dismiss the Amended Complaint.
FACTUAL BACKGROUND
The following facts taken from Plaintiffs’ Amended Complaint are treated as true for the
purposes of this motion only:
1. Plaintiffs are residents of Utah and reside in Utah County, Utah.17
2. Defendant Gary R. Herbert is the Governor of the State of Utah and, in his official
capacity, is the chief executive officer of the State of Utah.18
3. Defendant Sean Reyes is the Attorney General for the State of Utah, and his official
capacity, is the chief legal officer of the State of Utah.19
4. In 2004, the Utah Legislature enacted Utah Code Ann. § 30-1-2(5), which prohibited anddeclared void marriages between persons of the same sex, and Utah Code Ann. § 30-14.1, which stated that it was the policy of the State of Utah to recognize marriage “only as
the legal union of a man and a woman.” Further, the statutes stated that “[e]xcept for the11

See doc. 19, 20.
See doc. 24, 28.
13
See doc. 24-1.
14
See doc. 45, at 7.
15
Id.
16
See doc. 46.
17Pls.’ Am. Compl. doc 46, ¶ 14.
18
Pls.’ Am. Compl. doc 46, ¶ 20.
19
Pls.’ Am. Compl. doc 46, ¶ 21.
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relationship of marriage between a man and a woman . . . this state will not recognize,
enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties
that are substantially equivalent to those provided under Utah law to a man and a woman
because they are married.”
5. In 2004, the Utah Legislature also passed a Joint Resolution of Marriage proposing as an
Amendment to the Utah Constitution, a provision stating “(1) [m]arriage consists only of
the legal union between a man and a woman, and (2) [n]o other domestic union, however
denominated, may be recognized as a marriage or given the same or substantiallyequivalent legal effect.”20
6. The Lieutenant Governor of the State of Utah was directed to submit the proposed
amendment to the “voters of the state at the next regular general election in the manner
provided by law,” and if the proposed amendment “is approved by a majority of thosevoting on it at the next regular general election” the amendment would take effect onJanuary 1, 2005.21
7. Amendment 3 passed with approximately 66% of the vote and became Article I, section
29 of the Utah Constitution.22
8. In 2013, six same-sex couples filed suit against the Governor and Attorney General of theState of Utah challenging the three provisions of Utah law relating to same-sex marriage– Utah Code Ann. 30-1-2, 30-1-4.1, and art. I, § 29 of the Utah Constitution.23

20

Utah Const. art. I, § 29, held unconstitutional by Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014).
Laws 2004, H.J.R. 25, §§ 2-3.
22
See Kitchen v. Herbert, 755 F.3d 1193, 1200 (10th Cir. 2014).
23
Id.; see also Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013).
21

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9. The district court held that art. I, § 29 of the Utah Constitution denied same-sex couples
equal protection and declared art. I, § 29 of the Utah Constitution and the Utah laws
defining marriage as between one man and one woman unconstitutional. The court
further permanently enjoined enforcement of the challenged provisions.24
10. In 2014, the Tenth Circuit affirmed the district court’s holding.25
11. In 2015, the United States Supreme Court held, in Obergefell v. Hodges, that “States are
required by the Constitution to issue marriage licenses to same-sex couples” and “samesex couples may exercise the fundamental right to marry in all States.”26
12. Plaintiff Sevier self-identifies as a “machinist,” meaning that he is sexually oriented tomachines.27
13. At some unspecified time, Plaintiff Sevier believes that he married an inanimate object
under New Mexico law.28 On June 16, 2016, Plaintiff Sevier applied for a marriage
license from the Utah County Clerk’s office, but was denied.29
14. Plaintiff Sevier sought a marriage license for himself and a machine.30
15. Plaintiffs Kohl and Gunter desire to enter into a marriage relationship with more than two
spouses.31

24

Id.; see also Kitchen v. Herbert, 961 F.Supp.2d at 1204.

25

Id. at 1199.

26

See Obergefell v. Hodges, 135 S.Ct. 2584, 2607-08 (2015).

Pls.’ Am. Compl. doc 46, ¶¶ 2, 18.
28
Pls.’ Am. Compl. doc 46, ¶ 35.
29
Pls.’ Am. Compl. doc 46, ¶ 37.
30
Pls.’ Am. Compl. doc 46, ¶¶ 2, 18, 37.
31
Id.
27

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16. Plaintiff Gunter and Kohl requested that the Utah County clerk issue a marriage license
for them and another female spouse (who is unnamed in this action).32
17. The Clerk denied their marriage request because they were one man seeking to marry two
women.33
LEGAL STANDARDS GOVERNING DISMISSAL
A. Standard for Dismissal Under Rule 8.
Under Rule 8, a pleading must contain “a short and plain statement of the claim showingthat the pleader is entitled to relief.”34 Further, to state a viable claim, the “complaint must
explain what each defendant did to him or her; when the defendant did it; how the defendant’s
action harmed him or her; and, what specific legal right the plaintiff believes the defendantviolated.”35 Absent these basic elements, Defendants lack the sufficient information to prepare adefense and the court lacks the specificity necessary for adjudication.36 A complaint is further
susceptible to dismissal under Rule 8 when it is “‘so verbose, confused and redundant that itstrue substance, if any, is well disguised.’”37
B. Standards for Dismissal Under Rule 12.
Federal Rule of Procedure 12(b)(1) governs motions to dismiss for lack of subjectmatter jurisdiction. Dismissal for lack of subject-matter jurisdiction is proper when the claim is32

Id. ¶ 38.
Id.
34
Fed. R. Civ. P. 8(a)(2); see also DUCivR 3-5 (complaint “should state the basis for the court’s
jurisdiction, the basis for the plaintiff’s claim or cause for action, and the demand for relief.”).
35
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 Cir. 2007).
33

36

Id.

37

Mitchell v. City of Colo. Springs, Colo., 194 Fed. Appx. 497, 498 (10th Cir. 2006) (dismissing
complaint for being “verbose, prolix and virtually impossible to understand” and a “rambling, massive
collection of facts . . . completely lacking in clarity and intelligibility.”).

xiii

Case 2:16-cv-00659-DN-EJF Document 50 Filed 05/30/17 Page 14 of 37“so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal controversy.”38 “When a federal court
concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its
entirety.”39 The party asserting jurisdiction bears the burden of proving jurisdiction exists.40
A court can find that subject-matter jurisdiction is lacking based on “(1) the complaint alone; (2)the complaint supplemented by undisputed facts; or (3) the complaint supplemented byundisputed facts plus the court’s resolution of disputed facts.”41
Dismissal under Federal Rule of Procedure 12(b)(6) is proper when a plaintiff’s complaint
fails to state a claim upon which relief can be granted. In reviewing a 12(b)(6) motion todismiss, the court assumes the truth of well-pleaded facts and draws reasonable inferences in alight most favorable to the plaintiff.42 But a claim survives only if “there is plausibility in thecomplaint.”43 “A claim has facial plausibility when the plaintiff pleads factual content thatallows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”44 The plaintiff’s factual allegations must be enough to “raise a right of relief above thespeculative level,” upon the assumption that all the factual allegations in the complaint are

38

Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 777, 39 L.Ed.2d 73(1974); see also Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3(quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)).
39
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
40
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014).
41
Barnson v. U.S., 531 F.Supp. 614, 617 (D. Utah 1982).
42
See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).
43Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citations and quotations omitted).
44
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

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true.45 Courts will not accept as true mere conclusory allegations or legal conclusions
masquerading as factual allegations.46
In reviewing a motion to dismiss, the Court may rely on the facts as alleged in thecomplaint, but may also rely on all documents adopted by reference in the complaint, documents
attached to the complaint, or facts that may be judicially noticed.47 In the context of a motion todismiss, this Court may take judicial notice of court dockets and filings.48
C. Standard for Dismissal Under Rule 19.
“The standards set out in Rule 19 for assessing whether an absent party is indispensable
are to be applied ‘in a practical and pragmatic but equitable manner.’”49 Determining whether anabsent party is indispensable requires a two-part analysis.50 The court must first determine under
Rule 19(a) whether the party is necessary to the suit and must therefore be joined if joinder isfeasible.
Whether a party is a necessary party under Rule 19(a) requires assessment of threefactors. The court must consider (1) whether complete relief would be available tothe parties already in the suit, (2) whether the absent party has an interest related to the suit
45

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 at 555.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding Court will not “accept as true a legal conclusion
couched as a factual allegation.”).
47
See Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007);Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).
48
See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).
(“[I]t has been held that federal courts, in appropriate circumstances, may take notice of proceedings inother courts, both within and without the federal judicial system, if those proceedings have a direct
relation to matters at issue.”).
49
Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407, 1411 (10th Cir. 1996)(quoting
Francis Oil & Gas, Inc. v. Exxon Corp., 661 F.2d 873, 878 (10th Cir.1981). See also Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 106–07, 88 S.Ct. 733, 736–37, 19 L.Ed.2d 936(1968)).
50
See id.; Francis Oil & Gas, 661 F.2d at 877–78.
46

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which as a practical matter would be impaired, and (3) whether a party already in the suit would
be subjected to a substantial risk of multiple or inconsistent obligations.51“If an absent party is necessary but cannot be joined, the district court must then ascertain‘whether in equity and good conscience the action should proceed among the parties before it, or
should be dismissed.’”52 If the district court concludes the action cannot proceed “in equity andgood conscience,” it must deem the absent party indispensable and dismiss the suit.53
ARGUMENT
1. Plaintiffs’ Amended Complaint Continues to Violate Fed. R. Civ. P. Rule 8 and Rule12(f)In its order allowing Sevier to amend his Complaint, the Court expressly instructed Sevier topay special attention to Rules 8 and 12(f) of the Federal Rules of Civil Procedure and warned
that “Mr. Sevier’s Complaint must provide the Defendants with fair notice of his claims and thegrounds upon which his claims rest.”54 The Court also noted that “[w]hile courts generally
construe pro se pleadings liberally … the Court does not accord the same leniency to Mr. Sevier
because he is an attorney.”55 The Court specifically explained the infirmities in Plaintiff’s
proposed Amended Complaint:
Mr. Sevier’s Proposed Amended Complaint violates Rule 8
because it consists of conclusory allegations and extended legal
and philosophical arguments that do not help state Mr.
Sevier’s claims. Further, the Court notes that Mr. Sevier’s
Proposed Amended Complaint violates Rule 12(f). “[I]f thecomplaint or other pleadings are abusive or contain offensive
51

Id. (citing Fed. R. Civ. P. 19(a)52Davis v. United States, 192 F.3d 951, 959 (10th Cir. 1999) (quoting Fed.R.Civ.P. 19(b)).

53

See id.; see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct.
733, 19 L.Ed.2d 936 (1968).
54
Order Granting Pl. Mot. to Am., doc 45, p. 6.
55
Id. (citations omitted).

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language, they may be stricken sua sponte under the inherent
powers of the court.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 841 (10th Cir. 2005) (quoting Phillips v. Carey,638
F.2d 207, 208 (10th Cir. 1981)). “The court may strike from apleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Mr.
Sevier must further focus his amended complaint and remove
immaterial, redundant, or offensive language. Mr. Sevier’s
Complaint must provide the Defendants with fair notice of his
claims and the grounds upon which his claims rest.56
Plaintiffs have ignored the Court’s instructions and failed to comply with Rules 8 or
12(f). Plaintiffs’ Amended Complaint is not a short and plain statement of Plaintiffs’ claims
showing entitlement to relief. Plaintiffs have not removed “immaterial, redundant or offensive
language . . . .”57 Instead, the Amended Complaint primarily consists of irrelevant statements, adhominem attacks and unsupported legal conclusions.58 Plaintiffs’ Amended Complaint is a56

Doc. 45 at 7
Id.
58
For example, Plaintiffs’ Amended Complaint states that “[w]hen an individual says ‘love is love’ what
they really mean is that they are perfectly ok with government assets being used to crush anyone who
finds homosexuality to be immoral, obscene, or subversive to human flourishing.” (Pls.’ Am. Compl. doc
46, ¶8); “It is not just the Defendants who are on trial here. It is unquestionably the Courts themselves fortheir unconstitutional decision to selectively codify fiction.” (Id. at ¶9); “The continuation of judicial
cover up and deliberate intellectual dishonesty is simply not going to be allowed, since the Senate
Judiciary has eyes on this action for cause. The Court’s duty here is not to “save face” but to enforce theUnited States Constitution.” (Id.at ¶7); “The United States is a nation of second chances and this Court
has been given the opportunity to break rank from the prior Courts and actually tell the truth in light of thefact that the current legal definition of marriage is completely invalid from a Constitutional perspective.”(Id. at ¶11, emphasis added); “Homosexuality, zoophilia[ ], machinism, and polygamy are all equally partof the church of post-modern western moral relativism and expressive individualism. They are separate
but equal sects within one overall religion.” (Id. at 28).
57

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diatribe condemning homosexuality and attacking the integrity of the courts.59 Because
Plaintiffs’ Amended Complaint does not comply with Rule 8 or Rule 12(f), the Court should
dismiss Plaintiffs’ Amended Complaint.
2. The Court Must Dismiss Gunter’s and Kohl’s Claims for Failure to Join a Necessary
Party.
Gunter and Kohl contend the Utah County’s denial of a marriage license to join Gunter,
Kohl, and an unidentified third person in a polygamous union violates their constitutional rights.
The person whom Gunter and Kohl seek to marry is a necessary party under Rule 19(a).
Complete relief is not available to Gunter and Kohl without the third member of their desired
polygamous marriage participating in the lawsuit and seeking the same relief. Undeniably, theabsent and unidentified party has an alleged interest related to this lawsuit, i.e, obtaining amarriage license, which as a practical matter would be impaired if the case were to proceedwithout their participation.
Without knowing the identity of the indispensable third party, they cannot be joined.
The Tenth Circuit has clearly held: “If an absent party is necessary but cannot be joined, thedistrict court must then ascertain ‘whether in equity and good conscience the action should

For example, Plaintiff states that “the prior courts wrongfully shoehorned gay rights into the 14th
amendment narrative box, when the truth is that sexual orientation has nothing to do with immutability
but is nothing less than an implicitly religious orthodoxy.” (Pls.’ Am. Compl. doc 46, ¶9, emphasis
added); “the homosexual community feel that the Plaintiffs marriage request threatens their[] fake gay
rights civil rights crusade” (Id. at ¶46, emphasis added); “by legally recognizing gay marriage” the state“subject[s] Christians and others … to religious persecution” (Id. at ¶58); “homosexuality, beastiality,
polygamy, zoophilia, and machinism all equally violate community standards of decency and are
categorically obscenity in action.” (Id. at ¶45, emphasis added); “man-man marriage discriminates against
women on the basis of gender by telling them that they are not good enough to be a wife and mother…
woman-woman marriage discriminates against men by telling them that they are not good enough to be afather and husband.” (Id. at ¶81).
59

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proceed among the parties before it, or should be dismissed.’”60 This case cannot proceed “inequity and good conscience,” without the participation of the absent party. A challenge to thestate’s prohibition against polygamy cannot exist without at least three parties seeking a marriage
license. Moreover, Plaintiffs cannot prove, nor can Defendants contest, whether more than two
individuals requested a marriage license or whether the County clerk denied the license.
Because the action cannot proceed “in equity and good conscience,” the Court must deem theabsent party indispensable and dismiss the suit.61
3. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Claims Because They Do
Not Have Standing to Assert Them.
Article III of the United States Constitution limits federal courts’ jurisdiction to actual“cases” and “controversies.”62 Courts developed the standing doctrine to “give meaning to
Article III’s case-or-controversy requirement.”63 To satisfy Article III standing, a plaintiff must
show: (1) an injury-in-fact; (2) that is traceable to the defendant’s challenged conduct(causation); and (3) that is likely to be redressed by a favorable decision in the district court(redressability).64 These elements are “an indispensable part of the plaintiff’s case.”65 The party
seeking to invoke federal jurisdiction bears the burden of establishing all three elements.66 If a

60

Davis, 192 F.3d at 959 (quoting Fed. R. Civ. P. 19(b)).
See id.; see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, (1968).
62
U.S. CONST. art. III, § 2; see also Brown v. Buhman, -- F.3d --; docket no. 14-4117, *18 (10th Cir.,
April, 11, 2016).
63
Board of County Commissioners of Sweetwater County v. Geringer, 297 F.3d 1108, 1111-12 (10th Cir.
2002).
64
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); see also
Brown, --F.3d---, docket no. 14-4117, *21.
65
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
66
Id.
61

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party lacks standing to bring a claim, the court lacks subject-matter jurisdiction over that claim.67
In addition to the requirements of Article III, standing also encompasses prudential
standing requirements which embody judicially self-imposed limitations on the exercise offederal jurisdiction.68 Prudential standing includes the general prohibition on a litigant raisinganother person’s rights or asserting generalized grievances, and it requires that the complaint fallwithin the zone of interests protected by the law invoked.69
Here, Plaintiffs fail to establish both Article III and prudential standing. Plaintiffs havenot established any of the three elements required to confer Article III standing. First, Plaintiffs
cannot show an injury-in-fact. An injury- in-fact is “an invasion of a legally protected interest
which is . . . concrete and particularized.”70 Plaintiffs merely allege that they attempted tosecure marriage licenses—or achieve recognition of a previously issued marriage license—to alaptop computer and to multiple spouses.71 However, there is no legally protected interest in
securing a marriage license to a laptop computer or to multiple spouses.72 Because Plaintiffs
have no legally protected interest in polygamous marriage or marriage to a laptop computer, theState cannot interfere with this non-existent right in a manner sufficient to constitute an injuryin-fact to establish standing.

67

See Hollingsworth v. Perry, -- U.S. --, 133 S. Ct. 2652, 2668, (2013); Tennille v. W. Union Co., 809
F.3d 555, 559 (10th Cir. 2015).
68
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004).
69
Id. at 12.
70
Id. at 560.
71
Pls.’ Am. Compl, doc 46, ¶¶ 35-38.
72
See Section F (discussing Plaintiff’s failure to state an equal protection or due process claim uponwhich relief can be granted because there exists no fundamental right to polygamous marriage or to marryan inanimate object).

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Second, Plaintiffs’ claimed injuries were not caused by either Governor Herbert or
Attorney General Reyes. Plaintiffs specifically allege that they sought marriage licenses from the
Utah County Clerk.73 County clerks within the State of Utah are tasked with issuing marriage
licenses, not the Governor or the Attorney General. See Utah Code § 17-20-5(1).74 Therefore,
Plaintiffs’ Amended Complaint does not allege any injury traceable to the State Defendants’conduct.
Third, Plaintiffs’ alleged injuries cannot be redressed by an injunction against the State
Defendants. As already discussed, the State Defendants are not charged with exercising any
duties relating to the issuance of marriage licenses. Therefore, any relief this Court could provide
in this suit against the State Defendants will not remedy the purported injury. Accordingly,
Plaintiffs fail to satisfy the redressability prong of standing.
To the extent, Plaintiffs purport to bring claims on behalf of all “different-sex”
individuals, or all polygamists, for their purported injuries, Plaintiffs lack standing to do so.
The prudential requirements of standing prohibit Plaintiffs from asserting claims on behalf ofsuch unidentified third parties.75 Further, while Plaintiffs Kohl and Gunter allege that they are
seeking a license for a polygamist marriage with a third party, that third party has not been added
as a Plaintiff and indeed, has not even been identified in Plaintiffs’ Amended Complaint. To theextent that a third party seeking to marry Plaintiffs Kohl and Gunter actually exists, prudential

Pls.’ Am. Compl, doc 46, ¶¶ 35-38.
Utah Code § 17-20-5(1) provides that the “county clerk shall . . . issue all marriage licenses and keep aregister of marriages as provided by law.”75
Elk Grove, 542 U.S. at 12; Barrows v. Jackson, 346 U.S. 249, 255 (1953) (“Ordinarily one may notclaim standing in [court] to vindicate the constitutional rights of some third party.”); see also Singleton v.
Wulff, 428 U.S. 106, 114 (1976)); McGowan v. Maryland, 366 U.S. 420, 429 (1961).
73
74

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standing bars them from asserting that third party’s rights on that third party’s behalf.76
Accordingly, this Court should dismiss Plaintiffs’ claims against the State Defendants pursuant
to Fed. R. Civ. P. 12(b)(1).
4. District Court Judges Lack Authority to Overturn Decisions Rendered by the 10th Circuit
Court of Appeals and the United States Supreme Court.
The district of Utah, like all federal district courts, is bound by Supreme Court and Tenth
Circuit precedent. Thus, Plaintiffs are not entitled to the relief they seek – overturning thedecisions in Obergefell v. Hodges77 and Kitchen v. Herbert.78 Federal district judges, sitting assole adjudicators, lack authority to render precedential decisions binding other judges, evenmembers of the same court.79 District court decisions cannot be treated as authoritative on issuesof law.80 “The reasoning of district judges is of course entitled to respect, but the decision of a
district judge cannot be a controlling precedent.”81
Plaintiffs make it clear throughout their complaint that they view polygamy,
homosexuality, machinism, and zoophilia as disgusting, immoral acts which undermine thefabric of society.82 Plaintiffs also make it clear that they view the Supreme Court’s recognition of76

Elk Grove, 542 U.S. at 12.
See U.S. v. Kirby, 490 Fed. Appx. 113, 115 (10th Cir. 2012).
78
755 F.3d 1193, 1200 (10th Cir. 2014).
79
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011).
80
Garcia v. Tyson Foods, Inc., 534 F.3d 1320, 1329 (10th Cir. 2008).
81
Id. Bank of Am., N.A. v. Moglia, 330 F.3d 942, 949 (7th Cir.2003) (quotation omitted).
82
See, Pls.’ Am. Compl, doc 46, ¶¶27-28 (“Upon information and belief, the government of the UnitedStates was never designed to be used by moral relativist[s] to codify their religious beliefs in an effort [to]make them feel less inadequate and ashamed about a lifestyle and belief system that is otherwise selfevidently removed from reality, exploitative, depersonalizing, dehumanizing, and immoral.
Homosexuality, zoophilia[ ], machinism, and polygamy are all equally part of the church of post-modern
western moral relativism and expressive individualism.”) (emphasis added); see also Id. at ¶45(“Homosexuality, beastiality, polygamy, zoophilia, and machinism all equally violate community
standards of decency and are categorically obscenity in action.”) (emphasis added).
777

Case 2:16-cv-00659-DN-EJF Document 50 Filed 05/30/17 Page 23 of 37

same-sex couples’ right to marry as illegal, unconstitutional, and immoral.83 Plaintiffs’ real
objective, therefore, is not to obtain marriage licenses for unions they themselves see as unlawful
and unconscionable, but rather a desire to restrict homosexuals’ right to marriage. Plaintiffs
confirm their true objective by asking seven different times for this Court to overturn theSupreme Court’s decision in Obergefell and restrict the definition of marriage to “one man and
one woman.”84 Plaintiffs also repeatedly ask this Court to enter declarations that are calculated toundermine the rights of homosexuals.85 In seeking these remedies, Plaintiffs have failed to state a“To suggest that sexual orientation is based on immutability like race is an act of fraud that is raciallyexploitative and intellectually dishonest.” Id. at ¶34; “The superseding cause of the Plaintiffs injuries was
the federal and state governments legal recognition of homosexual orthodoxy.” Id. at ¶47; “The UnitedStates is a nation of second chances and this Court has been given the opportunity to break rank from theprior Courts and actually tell the truth in light of the fact that the current legal definition of marriage iscompletely invalid from a Constitutional perspective.” Id. at ¶11 (emphasis added).
84
E.g., Id. at ¶C (asking the Court to “declare that all forms of marriage other than man-woman marriage
violate the first amendment establishment clause”), ¶D (asking the court to “enjoin[ ] all marriages
outside the definition of ‘one man and one woman’…), ¶F (“enjoin[ ] the state from recognizing gay
marriage because doing so is subversive to the racial civil rights and other forms of rights that are actually
protectable under the 14th amendment…”), ¶H (“the Plaintiffs ask[ ] that the Court enter a Declaratory
Judgment… that all laws that codify marriage outside the scope of man-woman marriage violate the firstamendment establishment clause and other provisions of the United States Constitution.”), ¶K (“enter anorder directing Defendants to not recognize marriage request[s] and marriages beyond man-woman…”),¶M (asking the court to enter a declaratory judgment that “Amendment 3, the Marriage Discrimination
Statutes, …does not violate … the United States Constitution.”).
85
Id. at ¶F (seeking an order “[d]eclar[ing] that sexual orientation is a religious doctrine predicted
on unproven faith based assumptions . . . and that sexual orientation is not based on immutability”; I(seeking an order “enjoining the Defendants from enforcing any law or policy that that seeks toestablish the legal cognizability of gay marriage, gay rights, sexual orientation rights, and other forms
of unproven religious mythology that is designed to haul the Nation under a caliphate of moral
relativism in a pathetic effort to legislate away feelings of shame and guilt that naturally come fromengaging in objectively immoral and subversive behavior”; ¶N (seeking “a declaration [that] sexual
orientation . . . is not predicated on ‘immutable traits’ . . . .”); , ¶P (seeking a declaration that “allforms of marriage outside the traditional definition violate the state and federal obscenity statutes andwhether the state has a compelling interest to uphold the community standards of decency or whether the
14th amendment pre-empts the state's obscenity codes”); and ¶Q (“Enter a declaration [that]
83

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plausible claim for relief because the district court lacks authority to overturn the United States
Supreme Court or the Tenth Circuit. Any decision made in favor of Plaintiffs would not havebinding power even within the district of Utah. Therefore, Plaintiffs’ claims fail and should bedismissed.
5. Sevier’s Factual Allegations Are Not Plausible.
Sevier’s factual allegations are not plausible. For example, Sevier’s contention that helawfully married an inanimate object in New Mexico is not plausible. A wedding ceremony
where one party is entirely unable to consent is not a valid marriage.86
Further, Sevier cannot show plausible factual support for his allegation that the only
purpose in denying him a marriage license in Utah County was discrimination based on his
sexual preference for machines. Under Utah law, Sevier’s computer is not a party legally capableof entering into a solemnized marriage and cannot meet the consent requirement of theunsolemnized marriage statute.87 Furthermore, even if that were not the case, unless Sevier’s
computer has attained the age of fifteen it is too young to marry under Utah law.88 Therefore,
Sevier cannot satisfy even the most basic requirements for a valid marriage under Utah law. His
factual allegations are not plausible, and his claims should be summarily dismissed.

homosexuality, transgenderism, zoophilia, machinism, and polygamy are obscene and violate thecommunity standard . . ..”)
86
See Dion v. Rieser, 285 P.3d 678, 682 (N.M. Ct. App. 2012) (In New Mexico, “[m]arriage iscontemplated by the law as a civil contract, for which the consent of the contracting parties, capable inlaw of contracting, is essential.); Pierson v. Long, No. 32,688, 2013 WL 4538119, at *1 (N.M. Ct. App.
July 23, 2013); NMSA 1978, § 40–1–1 (1915); NMSA 1978, § 40–1–1 (1862).
87
See Utah Code Ann. §§ 30-1-9 and 30-1-4.5.
88
See Utah Code Ann. § 30-1-9.

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6. Plaintiffs do Not State a Constitutional Injury for Which Relief May be Granted.
A. Plaintiffs Have Not Alleged a Violation of Their Substantive Due Process Rights.
Plaintiffs claim that Amendment 3 to the Utah Constitution violated their substantive due
process rights.89 Specifically, Plaintiffs contend that because Plaintiff Sevier cannot marry his
laptop computer and Plaintiffs Kohl and Gunter cannot obtain a marriage license, they are denied
the fundamental right to marry guaranteed by the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment demands that no state “deprive
any person of life, liberty, or property, without due process of law.”90 In order to state a valid
substantive due process claim, a plaintiff must first allege facts showing a deprivation of aprotected liberty interest.91 “Substantive due process’ analysis must begin with a careful
description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise
the utmost care whenever we are asked to break new ground in this field.”92 Consequently, theCourt cautions that the judiciary must “carefully formulat[e]” the liberty interest, and define it“narrowly,” which requires “careful description of . . . the asserted liberty interest,” and ashowing that the asserted right is “objectively, deeply rooted in this Nation’s history andtradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.”93
Here, the Court should dismiss Plaintiffs’ claims because they have not alleged facts

The Supreme Court’s decision on Obergefell v. Hodges, 135 S. Ct. 2584 (2015) struck down
Amendment 3 as unconstitutional.
90
See U.S. CONST. amend. XIV, § 1.
91
See Judkins v. Jenkins, 996 F.Supp.2d 1155 (D. Utah 2014) (citing Board of Regents of State Collegesv. Roth, 408 U.S. 564, 569 (1972)).
92
Reno v. Flores, 507 U.S. 292, 302 (1993) (citation and internal quotations omitted) (emphasis added).
93
Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997).
89

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that show a deprivation of a protected liberty interest. In Obergefell, the Supreme Court
recognized that the liberty interest in marriage, as protected by the United States Constitution,“requires a State to license a marriage between two people of the same sex and to recognizea marriage between two people of the same sex when their marriage was lawfully licensed
and performed out-of-State.”94 But Obergefell does not establish a constitutionally protectedright to marry a laptop computer or marry more than one person.95 Nor does any decision of
any court expand the right to marry to such a result. Simply put, there is no substantive due
process liberty interest in marrying an inanimate object, or in marrying multiple people.
Accordingly, Plaintiffs’ purported substantive due process claims based on being denied theability to marry a computer or marry polygamously fail as a matter of law.
B. Plaintiffs Have Not Alleged a Violation of Their Equal Protection Rights.
Plaintiffs contend that Defendants’ refusal to allow them to marry a laptop computer ormarry polygamously deprives them of equal protection of the law.96 The Equal Protection Clauseof the Fourteenth Amendment commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws.97 To state a valid claim for violation of one’s equal
protection rights, a fundamental right or suspect classification must be implicated.98 Accordingly,“if a law neither burdens a fundamental right nor targets a suspect class,” a court will uphold thelaw.9994

135 S. Ct. 2584, 2588 (2015)(emphasis added).
See id.
96
Pls.’ Am. Compl., doc 46, ¶77.
97
See U.S. CONST. Amend. XIV, § 1.
98
See Heller v. Doe by Doe, 509 U.S. 312, 312 (1993).
99
U.S. v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (citing Romer v. Evans, 517 U.S. 620, 631(1996)).
95

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Regarding equal protection and marriage, the district courts within the Tenth Circuit have
held, following Obergefell, that States must allow same-sex couples to marry “on the same terms
and conditions as opposite-sex couples.”100 In Obergefell, the Supreme Court observed that,concerning the right to marry, due process and equal protection rights are inherently
intertwined.101 Accordingly, the same reasons Plaintiffs fail to state a substantive due
process claim upon which relief may be granted dictate that Plaintiffs also fail to state an equal
protection claim upon which relief may be granted— primarily, that they have nofundamental right to marry more than one person or to marry a laptop computer.
While courts have long recognized the right to marry as a fundamental right, the Court inObergefell did not rule that sexual orientation is a suspect class. In reaching its decision
regarding the equal protection claim, the Court did not analyze the issue of class- and scrutinytiers in the context of same-sex marriage at all.102 Because Plaintiffs do not belong to a suspector quasi-suspect class, rational basis scrutiny applies to the decision to prohibit the marriage ofSevier and his laptop and the polygamous marriage of Kohl, Gunter, and an unnamed third
party.103
The rational bases that support the prohibition on marrying inanimate objects arevoluminous. The right to marry one’s computer is not objectively, deeply rooted in the nation’s

100

Obergefell, 135 S. Ct. at 2608 (emphasis added); see also Roe v. Patton, case no. 2:15-cv-00253-DB,
2015 WL 4476734, *3 (D. Utah, July 22, 2015) (opinion not selected for publication); Marie v. Moser,
122 F.Supp.3d 1085, 1112 (D. Kansas 2015).
101
See Obergefell, 135 S. Ct. at 2602–05 (“The Due Process Clause and the Equal Protection Clause areconnected in a profound way, though they set forth independent principles. The Court’s cases touching
upon the right to marry reflect this dynamic.”).
102
See generally Obergefell, 135 S. Ct. 2584.
103
See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319–320).

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history and tradition such that it qualifies as a protected interest.104 The rational basis forprohibiting marriages between people and inanimate objects also mirror those reasons set out by
the Supreme Court in Obergefell. For instance, neither the person nor the computer reaps any ofthe benefits conferred by states as a recognition of society’s support for a marriage, such as:
taxation; inheritance and property rights; rules of intestate
succession; spousal privilege in the law of evidence; hospital access;medical decision making authority; adoption rights; the rights andbenefits of survivors; birth and death certificates; professional ethics
rules; campaign finance restrictions; workers’ compensation
benefits; health insurance; and child custody, support, and visitation
rules.105
Because Sevier has no fundamental right to marry his laptop computer, does not belong toeither a suspect or quasi-suspect class, and a myriad of rational bases for denying marriage toan inanimate object exist, Sevier fails to state an equal protection claim upon which relief may
be granted. Accordingly, the Court should dismiss his equal protection claim pursuant to Fed. R.
Civ. P. 12(b)(6).
Further, the rational bases that support the prohibition on polygamous marriage are also
voluminous. The right to engage in polygamous marriage is not objectively, deeply rooted in thenation’s history and tradition such that it qualifies as a protected interest.106 Further, polygamous
marriages fall outside the “two-person union unlike any other in its importance to the committed
individuals” which the Obergefell court referenced.107 Since Kohl and Gunter have nofundamental right to engage in a polygamous marriage, do not belong to either a suspect orquasi-suspect class, and a myriad of rational bases for denying polygamous marriage exist,
104

See Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
Obergefell, 135 S. Ct. at 2601.
106
Id.
107
Obergefell, 135 S. Ct. at 2499 (emphasis added).
105

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Plaintiffs Kohl and Gunter fail to state an equal protection claim upon which relief may be
granted. Accordingly, the Court should dismiss their equal protection claims.
In addition, even if the Court determined that Kohl and Gunter have a protected interestin marrying an unidentified third-party under the umbrella of a broadly-tailored fundamental
right to marriage, the State’s prohibition of marriage to multiple people is narrowly tailored tofurther a compelling state interest. “When a statutory classification significantly interferes withthe exercise of a fundamental right,” it can be upheld if it is “supported by sufficiently importantstate interests and is closely tailored to effectuate only those interest.”108 The State has acompelling interest in prohibiting polygamous marriage because of the danger it poses to womenand children.109
In fact, polygamous marriage harms women and children physically (through abuse andincreased health risks)110 and emotionally.111 While plural marriage could, in theory, occur
between a woman and multiple men, in the overwhelming majority of cases polygamy has
108

See, Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
See, Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion orLegitimate Public Menace? Revisiting Reynolds in the Light of Modern Constitutional Jurisprudence, 5
N.Y.U.J. Legis. & Pub. Pol’y 225, 233 (2001) (“The courts have an interest in protecting women andchildren form the strikingly real crimes committed in polygamous communities.”)
110
E.g. Symposium, Divorce Reform: Rights Protections in the New Swaziland, 8 Geo. J. Gender & L.
883, 898 n. 89 (2007) (“People in polygamous relationships tend to be very poor. The most vulnerable
children come from polygamous relationships.”) (quoting Interview with Phindile Weatherson, Bank
Peronnel, in Ezulwini, Swaz. (Mar. 7, 2006)); see also, Reference re: Section 293 of the Criminal Code of
Canada, [2011] B.C.S.C. 1588, ¶8 (Can. B.C.S.C.) (observing that women in polygamous marriages “aremore likely to die in childbirth and live shorter lives than their monogamous counterparts”).
111
See, Salman Elbedour et al., The Effect of Polygamous Marital Structure of Behavioral, Emotional,
and Academic Adjustment in Children: A Comprehensive Review of the Literature, 5 Clinical Child andFamily Psychol. Rev. 255, 259 (2002) (“[T]he stress of polygamous family life predisposes mothers andchildren to psychological problems.”); see also, Alean Al-Krenawi & John R. Graham, A Comparison of
Family Funcitoning, Life and Marital Satisfactions, and Mental Health of Women in Polygamous andMonogamous Marriages, 52 Int’l J. Soc. Psychiatry 5, 10 (2006).
109

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manifested as polygyny (one man marrying multiple women), which violates norms of genderequality and is rooted in deeply patriarchal principles.112 In many cases, “[w]omen inpolygamous marriages are in an inherently vulnerable and unequal position in social andeconomic terms, and are more likely to be victims of domestic violence.”113 These trends haveheld steady across several ethnic and religious groups, adopting diverse interpretations of plural
marriage.114 Polygamous marriages have also been found to pose an increased health risk tochildren,115 and to be harmful to their emotional health.116 The dangers presented by polygamous
marriage, in contrast to the benefits of monogamous unions extolled by Obergefell, are sufficient
to afford the State a compelling interest in protecting women and children from the threat posed
See, Nicholas Bala, Why Canada’s Prohibition of Polygamy is Constitutionally Valid and Sound
Social Policy, 25 Can. J. Fam. L. 165, 182 (2009) (“[T]he social reality today is that polygyny is the only
form of polygamy that is widely practiced, and many of the concerns about polygyny are based on theinherent inequality in a relationship where one man has two or more wives. The recognition of theimportance of monogamy and gender equality, combined with the negative psychological and physicalhealth effects on women and children, help explain why there is a growing international trend to prohibitor restrict polygamy.”) See also Reynolds v. United States, 98 U.S. 145, 166 (1879) (“[P]olygamy leads tothe patriarchal principle… which, when applied to large communities, fetters the people in stationary
despotism, while that principle cannot long exist in connection with monogamy.”)113
Id. at 192 (quoting “Committee on Polygamous Issues, Life in Bountiful: A Report in the Lifestyle of a
Polygamous Community” 12 (Apr. 1993)).
114
E.g. Muslim communities, see Dena Hassouneh-Phillips, Polygamy and Wife Abuse: A Qualitiative
Study of Muslim Women in America, 22 Health Care for Women Int’l 735, 744 (2001); Christiancommunities, see “Committee on Polygamous Issues, Life in Bountiful: A Report in the Lifestyle of a
Polygamous Community” 12 (Apr. 1993).
115
Elbedour et al., supra note 93, at 258 (“Considerable research demonstrates that children ofpolygamous families experience a higher incidence of marital conflict, family violence, and family
disruptions than do children of monogamous families.”).
116
Id. at 258-259 (“Development outcomes of children predicted by marital problems include thefollowing: poor social competence, a poorly developed sense of security, poor school achievement,
misconduct and aggression, and elevated heart rate reactivity.”); see also, Bala, supra note 94, at 198(“Although children are surrounded by many sibling role models and may receive care from more than
one maternal figure, they receive less care and attention as more children are added to the family: bothmother and father become less available, and the bonds between parent and child weaken.”).
112

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by polygamy, an interest which may only be furthered through the narrow means of denying
legal recognition to multiple partner marriages.117
C. Plaintiffs Has Not Alleged a Tenable Violation of the Establishment Clause.
The Establishment Clause of the First Amendment, which applies to the states throughthe Fourteenth Amendment, provides that “Congress shall make no law respecting anestablishment of religion.”118 The Establishment Clause “mandates governmental neutrality
between religion and religion, and between religion and nonreligion.”119 The definition of
marriage given in Obergefell is neutral regarding religion. Yet, Plaintiffs strain to imbue thedefinition with religious meaning, primarily by defining all secular purposes as endorsements of
the “religious dogmas” and “implicitly religious” “unproven faith based assumptions” of moral
relativism.
Although the Tenth Circuit has “assume[d], without deciding, that atheism is a religion
for First Amendment purposes,”120 this does not mean that a generally applicable law defining
marriage as between two consenting adult human beings is tantamount to teaching atheism. The
heavy weight of authority from federal circuit courts has uniformly rejected arguments similar to
Plaintiffs’ claims regarding the purported establishment of anti-theist or secular humanist
religion.121 Although “the state may not establish a ‘religion of secularism’ in the sense of
See State v. Holm, 137 P.3d 726, 744 (Utah 2006) (“[M]arital relationships serve as the building blocksof our society. The State must be able to assert some level of control over those relationships to ensure thesmooth operation of laws and further the proliferation of social unions our society deems beneficial while
discouraging those deemed harmful.”)118
U.S. Const. amend. I, cl. 1; Everson v. Bd. of Educ., 330 U.S. 1, 14-15 (1947).
119
Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
120
Wells v. City and Cnty. of Denver, 257 F.3d 1132 (2001).
121
See, e.g., Brown v. Woodland Joint Unified Sch., 27 F.3d 1373 (9th Cir. 1994); Fleischfresser v. Dirs.
of Sch. Dist. 200, 15 F.3d 680, 687 (7th Cir. 1994); Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058
117

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affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no
religion over those who do believe,’” the neutrality the Establishment Clause mandates does notitself equate with hostility towards religion. 122
By defining moral relativism and “the dogma of sexual orientation” as a religion,
Plaintiffs ask this Court to adopt an Establishment Clause test that has already been rejected byother courts. To that end, the Court need not accept Plaintiffs’ definition of moral relativism forthe purposes of a motion to dismiss because their definition is conclusory. Because “moral
relativism” and “the dogma of sexual orientation” are not religions, Plaintiffs cannot state aplausible claim for relief under the Establishment Clause. On that basis alone, the Court should
dismiss Plaintiffs’ Establishment Clause claims.
In addition, because Plaintiffs cannot show that “sexual orientation” is a religion,
Plaintiffs’ claims cannot satisfy the three-part test from Lemon v. Kurtzman, 403 U.S. 602(1971), as modified by Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668, 673 (1984).123 To
satisfy this test, “the governmental action (1) ‘must have a secular legislative purpose,’ (2) its‘principal or primary effect must be one that neither advances nor inhibits religion,’ and (3) it‘must not foster an excessive government entanglement with religion.’”124(6th Cir. 1987); Smith v. Bd. of Sch. Comm'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987); Grove v.
Mead Sch. Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985).
122
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226 (1963); see also Smith, 827 F.2d at 692.
123
See Bauchman for Bauchman v. West High School, 132 F.3d 542, 551-54 (10th Cir. 1997).
124
Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1031 (10th Cir. 2008) (quoting Lemon, 403
U.S. at 612-13).

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i. The “Purpose” Prong.
The “purpose” prong tests “whether the government’s ‘actual’ purpose is to endorse ordisapprove of religion.”125 The stated purpose of adopting an expanded definition of marriage toinclude same-sex marriage was not to endorse or disapprove of religion, but to offer afundamental right to similarly situated persons, a wholly appropriate purpose under the
Establishment Clause.126 Plaintiffs cannot show a government violation of the first prong of theLemon test.
ii. The “Primary Effect” Prong.
The “primary effect” prong tests “whether a ‘reasonable observer,’ aware of the history
and context of the community in which the conduct occurs, would view the practice ascommunicating a message of “government endorsement or disapproval” of religion.127 Because
it is an objective inquiry, it is irrelevant “whether particular individuals might be offended by[the government action].”128 “[N]ot every governmental activity that confers a remote,incidental, or indirect benefit upon religion is constitutionally invalid.”129
In this case, Plaintiffs allege that defining marriage to include same-sex couples will“subject Christians and others … to religious persecution.”130 However, Plaintiffs have failed toshow that the expanded definition of marriage is a religious matter, or how religious ideologies
will be imposed on everyone else in the way Plaintiffs allege. Plaintiffs’ allegations are complete
125

Bauchman, 132 F.3d at 551 (citing Edwards, 482 U.S. at 585; Wallace v. Jaffree, 472 U.S. at 56).
See Obergefell v. Hodge, 135 S.Ct. 2584, 2599-2600 (2015).
127
Id. at 551-52 (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. at 779-81(O'Connor, J., concurring)).
128
Id. at 555.
129
Id.; see also Lynch v. Donnelly, 465 U.S. 668 at 683; McGowan v. Maryland, 366 U.S. 420, 442(1961).
130
Pls.’ Am. Compl., doc. 46, ¶58.
126

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conjecture. On this basis alone, the Court should find that Plaintiffs have not alleged that the
primary effect of adopting the definition of marriage, as stated in Obergefell, is to advance orinhibit religion.131
But, even taken at face value, Plaintiffs’ Amended Complaint falls short of alleging thatthe expanded definition of marriage to include same-sex marriage will have the primary effect ofadvancing or inhibiting religion. Defining marriage to include same-sex marriage conveys amessage of neutrality: the definition neither endorses “secularism” as a religion, nor does it
discredit theistic religion as a system of belief.132 Accepting all of Plaintiffs’ factual allegations
as true, Plaintiffs cannot show a government violation under the second prong of the Lemon test.
iii. The “Excessive Entanglement with Religion” Prong.
The final prong of the Lemon test considers the “character and purposes of the institutions
that are benefited, the nature of the aid that the State provides, and the resulting relationshipbetween the government and the religious authority.”133 In other words, “neither a state nor theFederal Government can, openly or secretly, participate in the affairs of any religiousorganizations or groups and vice versa.”134 Accordingly, the entanglement prong of the Lemon
test “typically is applied to circumstances in which the state is involving itself with a recognized
religious activity or institution.”135

131

See Bowen v. Kendrick, 487 U.S. 589, 612 (1988) (stating that it has not been the Court's practice tostrike down statutes under the Establishment Clause “in anticipation that particular applications may [be]unconstitutional”); Bauchman, 132 F.3d at 554 (“We will not infer an impermissible purpose or effect in
the absence of any supporting factual allegations.”); see also Lynch, 465 U.S. at 680; O'Connor v.
Washburn University, 416 F.3d at 1227; Weinbaum, 541 F.3d at 1038.
132
See Smith, 827 F.2d at 694.
133
Lemon, 403 U.S. at 615.
134
Everson, 330 U.S. at 16; see also Lee v. Weisman, 505 U.S. 577, 602 n.3 (1992).
135
Bauchman, 132 F.2d at 556; see also Lemon, 403 U.S. at 615.

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As discussed previously, Plaintiffs failed to show that Obergefell’s definition of marriage
involves the State of Utah in any recognized religious institution or activity. Although adefinition of marriage that includes same-sex marriage does not coincide with Plaintiffs’
particular religious beliefs, this definition of marriage does not excessively entangle the statewith religion. Similarly, Plaintiffs’ conclusory assertion that the lawful recognition of gay
marriage “subjects Christians and others . . . to religious persecution for not subscribing to or
supporting and enabling the homosexual worldview” is not sufficient to state a plausible claim
for relief under the Establishment Clause.136 Thus, Plaintiffs cannot show a government violationof the third prong of the Lemon test. Therefore, Plaintiffs fail to state a plausible claim for relief
under the Establishment Clause and the Court should dismiss their claims.
D. Plaintiffs Cannot State a Plausible Claim for Relief for Violation of § 1983 as an
Independent Cause of Action.
Section 1983 does not itself establish any federally protected right. Instead, it creates acause of action for plaintiffs to enforce federal rights created by the United States Constitution
or, in some cases, other federal statutes.137 In other words, § 1983 provides a procedural vehicle
for plaintiffs to assert a claim for relief against a defendant who, acting under the color of statelaw, violated the plaintiff’s federal rights. In addition, § 1983 provides the exclusive available
federal remedy for violation of federal constitutional rights under the color of state law. Plaintiffs
cannot bring claims directly under the Constitution, but must use § 1983 as a means for bringing

136
137

See Pls.’ Am. Compl., doc. 46, ¶58.
See Albright v. Oliver, 510 U.S. 266, 271 (1994).

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all constitutional claims.138 Therefore, there is no independent cause of action for violation of§ 1983 and Plaintiffs’ third cause of action fails to state a claim.
CONCLUSION
For the reasons set forth above, State Defendants Governor Gary Herbert and Attorney
General Sean Reyes respectfully request that the Court dismiss Plaintiffs’ Amended Complaint in
its entirety, with prejudice.
DATED: May 30, 2017.
OFFICE OF THE UTAH ATTORNEY GENERAL/s/ David N. Wolf
DAVID N. WOLF
Assistant Attorney GeneralCounsel for Defendants Governor Herbertand Attorney General Reyes

138

See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989).

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CERTIFICATE OF MAILING
I certify that on May 30, 2017 I electronically filed the foregoing, STATEDEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT ANDSUPPORTING MEMORANDUM, and I also certify that a true and correct copy of theforegoing was sent by United States mail, postage prepaid, to the following:

Chris Sevier
9 Music Square South, #247
Nashville, TN 37203
PLAINTIFF Pro Se
John Gunter Jr.
313 S 740 E STE 1
American Fork, UT 84003
PLAINTIFF Pro Se
Whitney Kohl
313 S 740 E STE 1
American Fork, UT 84003
PLAINTIFF Pro Se/s/ Valerie Valencia
Paralegal

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