Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 1 of 34

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. Herbert
and Attorney General Sean Reyes

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
STATE DEFENDANTS MOTION TO
DISMISS AND SUPPORTING
MEMORANDUM

CHRIS SEVIER,
Plaintiff,
v.

Case No.: 2:16-cv-00659-DN

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.

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 Plaintiff Chris Seviers (Sevier) Complaint due to lack of subject-matter
jurisdiction and because the Complaint fails to state a claim upon which relief can be granted

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TABLE OF CONTENTS
INTRODUCTION ....................................................................................................................... viii
FACTUAL BACKGROUND ......................................................................................................... x
I.

ARGUMENT ....................................................................................................................... 1
A. Seviers Complaint Violates Fed. R. Civ. P. Rule 8 ........................................................ 1
B. Standards For Dismissal Under Rule 12 .......................................................................... 2
C. This Court Lacks Subject-Matter Jurisdiction Over Seviers Claims Because He Does
Not Have Standing To Assert Them. ....................................................................................... 3
D. This Court Should Dismiss Seviers Claims For Lack Of Subject-Matter Jurisdiction
Because District Court Judges Lack Authority to Overturn Supreme Court Holdings. .......... 6
E. This Court Should Dismiss Seviers Claims Because Sevier Relies on Factual
Allegations That Are Not Plausible. ........................................................................................ 7
F. This Court Should Dismiss Seviers Claims For Failure To State A Claim Upon Which
Relief May Be Granted Because Sevier Does Not State A Constitutional Injury For
Which Relief May Be Granted. ............................................................................................... 8
1. Sevier Cannot Show A Violation Of His Substantive Due Process Rights.................. 8
2. Sevier Cannot Show A Violation Of His Equal Protection Rights............................... 9
3. Sevier Cannot Show a Violation of the Establishment Clause. .................................. 11
i. The Purpose Prong. ............................................................................................. 13
ii. The Primary Effect Prong.................................................................................... 13
iii. The Excessive Entanglement with Religion Prong. ............................................ 15
4. Sevier Cannot Show a Violation of the Free Exercise Clause. .................................. 16
5. Sevier Cannot Show a Violation of His Constitutional Right to Free Speech Under
the First Amendment......................................................................................................... 17

6. Sevier Cannot Show that the State Defendants Violated Seviers Constitutional Right
to Be Free of Compelled Speech Under the First Amendment. ....................................... 18
7. Sevier Cannot State a Plausible Claim for Relief for Violation of 1983 As An
Independent Cause of Action. ........................................................................................... 20
8. Sevier Cannot State a Plausible Claim for Relief for Irreparable Injury As An
Independent Cause of Action. ........................................................................................... 20
II. CONCLUSION ..................................................................................................................... 21
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TABLE OF AUTHORITIES

Cases
Albright v. Oliver, 510 U.S. 266 (1994) ....................................................................................... 33
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) .......................................................... 19
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)............................................................................... 14
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................... 15, 19
Awad v. Ziriax, 670 F.3d 1111 (10th Cir.2012) ............................................................................ 33
Bank of Am., N.A. v. Moglia, 330 F.3d 942 (7th Cir.2003) .......................................................... 19
Barrows v. Jackson, 346 U.S. 249 (1953) .................................................................................... 18
Bauchman for Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997) .. 25, 26, 27, 28, 29
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). ......................................................... 15, 19
Board of County Commissioners of Sweetwater County v. Geringer, 297 F.3d 1108 (10th Cir.
2002) ......................................................................................................................................... 16
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)................................................ 21
Bowen v. Kendrick, 487 U.S. 589 (1988) ..................................................................................... 27
Brown v. Woodland Joint Unified Sch., 27 F.3d 1373 (9th Cir. 1994) ......................................... 25
Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................................................................. 28
Capitol Square Review & Advisory Plaintiff Bd. v. Pinette, 515 U.S 753 (1995). ....................... 26
Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015) ......................................................... 31, 32
Dion v. Rieser, 285 P.3d 678 (N.M. Ct. App. 2012)..................................................................... 20
Edwards v. Aguillard, 482 U.S 578 (1987). ................................................................................. 26

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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................. 17, 18
Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S 872 (1990) ............ 29
Epperson v. Arkansas, 393 U.S. 97 (1968) ................................................................................... 24
Everson v. Bd. of Educ., 330 U.S. 1 (1947) ............................................................................ 24, 28
Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994) ......................................... 25
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ................ 16
Garcia v. Tyson Foods, Inc., 534 F.3d 1320 (10th Cir. 2008)...................................................... 19
Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) ......................................................................... 20
Gitlow v. New York, 268 U.S. 652 (1925) .................................................................................... 30
Grace United Methodist Church v. Cheyenne, 451 F.3d 643 (10th Cir. 2006) ............................ 29
Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985) .............................................. 25
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) ......................................................................... 15
Hall v. Witteman, 584 F.3d 859 (10th Cir. 2009) ............................................................. 15, 19, 20
Heller v. Doe by Doe, 509 U.S. 312 (1993)............................................................................ 22, 23
Hollingsworth v. Perry, -- U.S. --, 133 S. Ct. 2652, (2013) ......................................................... 16
Wallace v. Jaffree, 472 U.S. 38 (1985) ......................................................................................... 26
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) ................................................................... 33
Johanns v. Livestock Marketing, Ass'n, 544 U.S. 550 (2005) ...................................................... 32
Judkins v. Jenkins, 996 F.Supp.2d 1155 (D. Utah 2014) .............................................................. 21
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014)...................................................................... 11
Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) ....................................................... 11, 12
Lee v. Weisman, 505 U.S. 577 (1992)........................................................................................... 28
iv

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Lemon v. Kurtzman, 403 U.S. 602 (1971) ........................................................................ 25, 26, 28

Leverington v. City of Colo. Springs, 643 F.3d 719 (10th Cir. 2011)..................................... 15, 19
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ..................................................................... 16, 17
Lynch v. Donnelly, 465 U.S. 668 (1984)................................................................................. 26, 27
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) .......................................... 29
Marie v. Moser, 122 F.Supp.3d 1085 (D. Kansas 2015) .............................................................. 23
McGowan v. Maryland, 366 U.S. 420 (1961)......................................................................... 18, 26
Middleton v. Stephenson, 749 F.3d 1197 (10th Cir. 2014) ........................................................... 14
Mitchell v. City of Colo. Springs, Colo., 194 Fed. Appx. 497 (10th Cir. 2006) ........................... 14
Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) ........................................ 25
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10 Cir. 2007) ................................... 13
O'Connor v. Washburn University,, 416 F.3d 1216 (2005) .......................................................... 27
Obergefell v. Hodges, 135 S.Ct. 2584 (2005) ........................................... 12, 13, 21, 22, 23, 24, 26
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73
(1974) ........................................................................................................................................ 14
Pierson v. Long, No. 32,688, 2013 WL 4538119 (N.M. Ct. App. July 23, 2013)........................ 20
Planned Parenthood Ass'n of Utah v. Herbert, No. 15-4189, 2016 WL 3742008 (10th Cir. July
12, 2016) ................................................................................................................................... 33
Reno v. Flores, 507 U.S. 292 (1993) ............................................................................................ 21
Roe v. Patton, case no. 2:15-cv-00253-DB, 2015 WL 4476734 (D. Utah, July 22, 2015) .......... 22
Romer v. Evans, 517 U.S. 620 (1996)..................................................................................... 22, 23
Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368
(1959) ........................................................................................................................................ 14

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Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ........................... 31
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) .............................................. 25, 29
Singleton v. Wulff, 428 U.S. 106 (1976) ....................................................................................... 18
Smith v. Bd. of Sch. Comm'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987) ................... 25, 27
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169 (10th Cir. 1979)......... 15
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) .............................................. 15
Tennille v. W. Union Co., 809 F.3d 555 (10th Cir. 2015)............................................................. 16
U.S. v. Enjady, 134 F.3d 1427 (10th Cir. 1998) ........................................................................... 22
U.S. v. Kirby, 490 Fed. Appx. 113 (10th Cir. 2012) ..................................................................... 19
Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................................... 21, 23
Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017 (10th Cir. 2008)............................... 26, 27
Wells v. City and Cnty. of Denver, 257 F.3d 1132 (2001) ............................................................ 24
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................................ 33
Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................... 31
Statutes
NMSA 1978, 40-1-1 (1915) ....................................................................................................... 20
U.S. Const. amend. I, cl. 1 ................................................................................................ 24, 28, 30
U.S. CONST. amend. XIV, 1............................................................................................... 21, 22
Utah Code Ann. 30-1-2, 30-1-4.1 ................................................................................................. 11
Utah Code Ann. 30-1-2(5) ......................................................................................................... 10
Utah Code Ann. 30-1-4.1 ........................................................................................................... 10
Utah Code Ann. 30-1-9 and 30-1-4.5 ...................................................................................... 20
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Utah Code 17-20-4(1) ................................................................................................................ 18

Utah Code 17-20-5(1) ................................................................................................................ 18
Utah Const. art. I, 29 .................................................................................................................. 11
Rules
Fed. R. Civ. P. 10(c) ..................................................................................................................... 15
Fed. R. Civ. P. 12(b)(1)................................................................................................................. 18
Fed. R. Civ. P. 12(b)(6)................................................................................................................. 24
Fed. R. Civ. P. 8(a)(2) ................................................................................................................... 13
Federal Rules of Civil Procedures 8(a), 12(b)(1), and 12(b)(6) ..................................................... 1

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INTRODUCTION
Sevier seeks relief that is beyond the Courts authority to provide. Sevier asks the Court
to overturn rulings of the United States Supreme Court or establish a newly-protected
fundamental right to marry an inanimate object.1 Unhappy with the Supreme Courts expansion
of the definition of marriage, Sevier states, the only question on the table is how should
marriage be defined.2 He asks the district court to decide whether the United States is a
Christian Nation or whether America is a Savage.3 Seviers avowed purpose is to overturn
the Supreme Court holdings in United States v. Windsor and Obergefell v. Hodges and revive
Amendment 3 of the Utah Constitution.4 But failing that, he desires to have the State of Utah
officially sanction his marriage choice in hopes of thrusting his take on morality down the throats
of the citizens of Utah even if it violates the community standard.5
Sevier brings this suit as a representative of all different-sex individuals.6 Sevier
defines different-sex individuals as those who self-identity as something other than gay and
straight.7 Sevier claims that the current definition of marriage allowing same-sex marriage
violates different-sex individuals Fourteenth Amendment due process and equal protection
rights by obstructing their fundamental right to marry the objects of their choosing regardless of
type, including inanimate objects, animals, and multiple human partners.8 Sevier contends that

Plaintiffs Complaint for Injunction Relief and Jury Demand. Doc. 1, pp. 10, 12.
Pl. Comp. doc. 1, 5.
3
Pl. Comp. doc. 1, 13.
4
Pl. Comp. doc. 1, p. 49.
5
Pl. Comp. doc. 1, 11.
6
Pl. Comp. doc. 1, 7.
7
Pl. Comp. doc. 1, 74.
8
See generally doc. 1.
1
2

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the definition of marriage as decided in Kitchen v. Herbert and Obergefell v. Hodges denies
him and different-sex individualsequal protection of the law by restricting civil marriage
to heterosexuals and homosexuals, and not including those people who wish to marry inanimate
objects, animals, or multiple human beings.9
Sevier alleges that he previously married an inanimate object in New Mexico and in an
overseas skype ceremony.10 Sevier brought this lawsuit because the [S]tate of Utah refuses to
recognize Seviers existing right to marry in step with his peculiar sexual orientation that is
neither straight nor gay and the [S]tate of Utah refuses to recognize his out of state marriage.11
As relief, Sevier seeks a declaratory judgment that a definition of marriage that does not
include man-object, man-animal, or multiple partners violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution because it
prohibits different-sex individuals from getting married. Sevier also seeks a permanent
injunction barring enforcement of a definition of marriage which prohibit human beings from
marrying inanimate objects, animals, or several persons at once. Or, in the alternative, Sevier
asks the district court to overturn United States Supreme Court precedent and revive Amendment
3 to the Utah Constitution.
This Court should dismiss Seviers claims against the State Defendants because Sevier
lacks standing to bring his Section 1983 claims on behalf of himself or all beastialists,
machinists, and polygamists and Sevier fails to state any valid constitutional injuries upon which
relief may be granted.

Pl. Compl. doc. 1, 10.

Pl. Compl. doc. 1, 8 and 11.
11
Pl. Comp. doc. 1, 11.
10

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FACTUAL BACKGROUND
The following facts taken from Seviers complaint, or facts that may be judicially
noticed, are treated as true for the purposes of this motion only:
1. Sevier is a resident of Utah and resides in Utah County, Utah.12
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.13
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.14
4. In 2004, the Utah Legislature enacted Utah Code Ann. 30-1-2(5), which prohibited and
declared 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 the
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

12

Pl. Comp. doc. 1, 19.

Pl. Comp. doc. 1, 20.
14
Pl. Comp. doc. 1, 21.
13

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denominated, may be recognized as a marriage or given the same or substantially

equivalent legal effect.15
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 those
voting on it at the next regular general election the amendment would take effect on
January 1, 2005.16
7. Amendment 3 passed with approximately 66% of the vote and became Article I, section
29 of the Utah Constitution.17
8. In 2013, six same-sex couples filed suit against the Governor and Attorney General of the
State 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.18
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.19
10. In 2014, the Tenth Circuit affirmed the district courts holding.20

15
16

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.

17

See Kitchen v. Herbert, 755 F.3d 1193, 1200 (10th Cir. 2014).

18

Id.; see also Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013).

19

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

20

Id. at 1199.

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11. 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 same-sex
couples may exercise the fundamental right to marry in all States.21
12. Sevier self-identifies as a machinist, meaning that he is sexually oriented to machines.22
13. Sevier became addicted to pornography viewed on his computer and cultivated a sexual
preference for sex with objects.23
14. At some unspecified point in time, Sevier had a wedding ceremony overseas via skype
where Sevier wedded his laptop computer.24
15. The State of Utah does not recognize Seviers overseas skype marriage as a legal union.25
16. At some unspecified time, Sevier believes that he married an inanimate object under New
Mexico law.26
17. On June 16, 2016, Sevier applied for a marriage license from the Utah County Clerks
office, but was denied.27
18. Sevier sought the marriage license for himself and a machine.28
19. Sevier presented his drivers license and tendered the filing fee.29
20. On June 20, 2016, Sevier filed this Complaint asking the district court to overturn the
United States Supreme Courts holding in Obergefell v. Hodges or to strengthen the

21

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

22

Pl. Comp. doc. 1, 39.

23
Pl. Comp. doc. 1, 44.
24
Pl. Comp. doc. 1, 11.
25
Pl. Comp. doc. 1, 11.
26
Pl. Comp. doc. 1, 8.
27
Pl. Comp. doc. 1, 45.
28
Pl. Comp. doc. 1, 45.
29
Pl. Comp. doc. 1, 45.

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Courts holdings by establishing a fundamental right to marry machines, beasts, and multiple
partners.30
I. ARGUMENT
A. Seviers Complaint Violates Fed. R. Civ. P. Rule 8
As an initial matter, Seviers complaint fails to comply with the requirements of Rule 8 of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8. Under Rule 8, a pleading must
contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2); see also DUCivR 3-5 (complaint should state the basis for the courts
jurisdiction, the basis for the plaintiffs claim or cause for action, and the demand for relief.).
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 defendants action harmed him or her; and, what specific
legal right the plaintiff believes the defendant violated.31 Absent these basic elements,
Defendants lack the sufficient information to prepare a defense and the court lacks the specificity
necessary for adjudication.32
A complaint is further susceptible to dismissal under Rule 8 when it is so verbose,
confused and redundant that its true substance, if any, is well disguised.33 Here, Seviers fiftypage complaint sets forth over ninety four facts the majority of which lack any discernable
relevance to his stated causes of action and appear to be only legal conclusions and opinion. In

30

Pl. Comp. doc. 1, 6. Plaintiff previously filed a similar Complaint that he voluntarily dismissed, see
Sevier v. Herbert, et al., case no. 2:16-cv-00124-JNP, doc. 3.
31
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 Cir. 2007).
32
Id.
33
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.).

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addition, the pleadings fail to provide a short and plain statement of Seviers claims showing his
entitlement to relief.
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 because of the inadequacy
of the federal claim is proper when the claim is so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal
controversy.34 When a federal court concludes that it lacks subject-matter jurisdiction, the
court must dismiss the complaint in its entirety.35 The party asserting jurisdiction bears the
burden of proving jurisdiction exists.36 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 by undisputed facts plus the courts resolution of disputed
facts.37
Dismissal under Federal Rule of Procedure 12(b)(6) is proper when a plaintiffs complaint
fails to state a claim upon which relief can be granted. In reviewing a 12(b)(6) motion to
dismiss, the court assumes the truth of well-pleaded facts and draws reasonable inferences in a
light most favorable to the plaintiff.38 But a claim survives only if there is plausibility in the
complaint.39 A claim has facial plausibility when the plaintiff pleads factual content that

34

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)).
35
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
36
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014).
37
Barnson v. U.S., 531 F.Supp. 614, 617 (D. Utah 1982).
38
See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).
39
Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citations and quotations omitted).

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.40 The plaintiffs factual allegations must be enough to raise a right of relief above the
speculative level, upon the assumption that all the factual allegations in the complaint are
true.41 Courts will not accept as true mere conclusory allegations or legal conclusions
masquerading as factual allegations.42
In reviewing a motion to dismiss, the Court may rely on the facts as alleged in the
complaint, 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.43 In the context of a motion to
dismiss, this Court may take judicial notice of court dockets and filings.44 ([I]t has been held
that federal courts, in appropriate circumstances, may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings have a direct relation to
matters at issue.).
C. This Court Lacks Subject-Matter Jurisdiction Over Seviers Claims Because He
Does Not Have Standing To Assert Them.
Sevier has not satisfied his burden to establish both the prudential and Article III standing
requirements necessary to assert his claims. Article III of the United States Constitution limits
federal courts jurisdiction to actual cases and controversies.45 Courts developed the

40

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 at 555.
42
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding Court will not accept as true a legal conclusion
couched as a factual allegation.).
41

43

See Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 32223
(2007); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).
44

See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).
U.S. CONST. art. III, 2; see also Brown v. Buhman, -- F.3d --; docket no. 14-4117, *18 (10th Cir.,
April, 11, 2016).
45

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standing doctrine to give meaning to Article IIIs case-or-controversy requirement.46 To

satisfy Article III standing, a plaintiff must show: (1) an injury-in-fact; (2) that is traceable to the
defendants challenged conduct (causation); and (3) that is likely to be redressed by a favorable
decision in the district court (redressability).47 These elements are an indispensable part of the
plaintiffs case.48 The party seeking to invoke federal jurisdiction bears the burden of
establishing all three elements.49 If a party lacks standing to bring a claim, the court lacks
subject-matter jurisdiction over that claim.50
In addition to Article III standing requirements, standing also encompasses prudential
standing requirements which embody judicially self-imposed limitations on the exercise of
federal jurisdiction.51 Prudential standing includes the general prohibition on a litigant raising
another persons rights or asserting generalized grievances, and it requires that the complaint fall
within the zone of interests protected by the law invoked.52
Here, Sevier fails to establish both prudential and Article III standing. Sevier has not
established any of the three elements required to confer Article III standing. First, Sevier cannot
show an injury-in-fact. An injury- in-fact is an invasion of a legally protected interest which is .
. . concrete and particularized.53 Sevier merely alleges that he attempted to secure a marriage
licenseor achieve recognition of a previously issued marriage licenseto his laptop
46

Board of County Commissioners of Sweetwater County v. Geringer, 297 F.3d 1108, 1111-12 (10th Cir.
2002).
47
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 18081 (2000); see also
Brown, --F.3d---, docket no. 14-4117, *21.
48
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
49
Id.
50
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).
51
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004).
52
Id. at 12.
53
Id. at 560.

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 17 of 34

computer.54 However, there is no legally protected interest in securing a marriage license to a

laptop computer.55 Because Sevier has no legally protected interest in marrying his laptop
computer, the State could not interfere with this non-existent right in a manner sufficient to
constitute an injury-in-fact to establish standing.
Second, Seviers claimed injury was not caused by either Governor Herbert or Attorney
General Reyes. Sevier specifically alleges that he sought a marriage license from the Utah
County Clerk.56 County clerks within the State of Utah are tasked with issuing marriage licenses,
not the Governor or the Attorney General. See Utah Code 17-20-4(1).57 Therefore, Seviers
Complaint does not allege any injury traceable to the State Defendants conduct.
Third, Seviers alleged injury 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 of which Sevier
complains. For this reason, Sevier fails to satisfy the redressability prong of standing.
To the extent Sevier purports to bring claims on behalf of all different-sex
individuals for their purported injuries, he lacks standing to do so. The prudential requirements

54

Pl. Compl., doc. 1, 8.

See Section F (discussing Plaintiffs failure to state an equal protection or due process claim upon
which relief can be granted because there exists no fundamental right to marry an inanimate object).
56
Pl. Compl., doc. 1, 45.
57
Utah Code 17-20-5(1) provides that the county clerk shall . . . issue all marriage licenses and keep a
register of marriages as provided by law.
55

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 18 of 34

of standing prohibit him from asserting claims on behalf of such unidentified third parties.58
Because Seviers Complaint demonstrates he lacks standing, this Court should dismiss Seviers
claims against the State Defendants pursuant to Fed. R. Civ. P. 12(b)(1).
D. This Court Should Dismiss Seviers Claims For Lack Of Subject-Matter
Jurisdiction Because District Court Judges Lack Authority to Overturn
Supreme Court Holdings.
Because, the district of Utah, like all federal district courts, is bound by Supreme Court
and Tenth Circuit precedent, Sevier is not entitled to the relief he seeks overturning of the
United States Supreme Courts holdings in United States v. Windsor and Obergefell v. Hodges.59
Federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions
binding other judges, even members of the same court.60 District court decisions cannot be
treated as authoritative on issues of law.61 The reasoning of district judges is of course entitled
to respect, but the decision of a district judge cannot be a controlling precedent.62
Sevier has failed to state a plausible claim for relief because the district court lacks
authority to render a precedential decision overturning the United States Supreme Court or the
Tenth Circuit. Any decision made in favor of Sevier would not have binding power even within
the district of Utah. Therefore, Seviers claims fail and should be dismissed.

Elk Grove, 542 U.S. at 12; Barrows v. Jackson, 346 U.S. 249, 255 (1953) (Ordinarily one may not
claim 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).
59
See U.S. v. Kirby, 490 Fed. Appx. 113, 115 (10th Cir. 2012).
60
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011).
58

61
62

Garcia v. Tyson Foods, Inc., 534 F.3d 1320, 1329 (10th Cir. 2008).
Id. quoting Bank of Am., N.A. v. Moglia, 330 F.3d 942, 949 (7th Cir.2003) (quotation omitted).
6

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 19 of 34

E. This Court Should Dismiss Seviers Claims Because Sevier Relies on Factual
Allegations That Are Not Plausible.
In reviewing a 12(b)(6) motion to dismiss, the court assumes the truth of well-pleaded
facts and draws reasonable inference in a light most favorable to the plaintiff.63. But a claim
survives only if there is plausibility in the complaint.64 A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.65 Threadbare recitals of elements, facts merely
consistent with liability, labels and conclusions, or unadorned, the-defendant-unlawfullyharmed-me accusation[s] are insufficient.66
Seviers factual allegations that he had a legal wedding ceremony overseas via skype or
that he obtained a legal marriage in New Mexico wherein he married an inanimate object are not
plausible. A wedding ceremony where one party is entirely unable to consent is not a valid
marriage.67
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, Seviers computer is not a party legally capable
of entering into a solemnized marriage and cannot meet the consent requirement of the
63

E.g., Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).

64

Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citations and quotations omitted).
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
66
Iqbal, 556 U.S. at 678; Leverington, 643 F.3d at 723 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)); Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (citations and quotations
omitted); Hall, 584 F.3d 863 (citations and quotations omitted).
67
See Dion v. Rieser, 285 P.3d 678, 682 (N.M. Ct. App. 2012) (In New Mexico, [m]arriage is
contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in
law of contracting, is essential.); Pierson v. Long, No. 32,688, 2013 WL 4538119, at *1 (N.M. Ct. App.
July 23, 2013); NMSA 1978, 4011 (1915); NMSA 1978, 4011 (1862).
65

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unsolemnized marriage statute. See Utah Code Ann. 30-1-9 and 30-1-4.5. 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 dismissed.
F. This Court Should Dismiss Seviers Claims For Failure To State A Claim Upon
Which Relief May Be Granted Because Sevier Does Not State A
Constitutional Injury For Which Relief May Be Granted.
1. Sevier Cannot Show A Violation Of His Substantive Due Process Rights.
Sevier claims that Amendment 3 to the Utah Constitution violates his substantive due
process rights.68 Specifically, Sevier contends that because he cannot marry his laptop
computer, he is denied the fundamental right to marriage which is 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.69 In order
to state a valid substantive due process claim, a plaintiff must first allege facts showing a
deprivation of a protected liberty interest.70 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.71
Consequently, the Court 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 a showing that the asserted right is objectively, deeply rooted in this Nations

The Supreme Courts decision on Obergefell v. Hodges, 135 S. Ct. 2584 (2015) struck down
Amendment 3 as unconstitutional.
69
See U.S. CONST. amend. XIV, 1.
68

70

See Judkins v. Jenkins, 996 F.Supp.2d 1155 (D. Utah 2014) (citing Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 569 (1972)).
71
Reno v. Flores, 507 U.S. 292, 302 (1993) (citation and internal quotations omitted) (emphasis
added).
8

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 21 of 34

history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.72
Here, the Court should dismiss Seviers claims because he has not alleged facts that
show a deprivation of a protected liberty interest. In Obergefell v. Hodges, the Supreme Court
recently 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 recognize a marriage between two people of the same sex when their marriage was
lawfully licensed and performed out-of-State.135 S. Ct. 2584, 2588 (2015). But Obergefell,
does not establish a constitutionally protected right to marry a laptop computer.73 Nor does
any other decision of a court of final jurisdiction expand the right to marry to such an absurd
result. Simply put, there is no substantive due process liberty interest in marrying an
inanimate object. Accordingly, Seviers purported substantive due process claim based on
being denied the ability to marry a computer fails as a matter of law.
2. Sevier Cannot Show A Violation Of His Equal Protection Rights.
Sevier contends that Utahs alleged refusal to allow him to marry his laptop computer
deprives him of equal protection of the law.74 The Equal Protection Clause of the Fourteenth
Amendment commands that no state shall deny to any person within its jurisdiction the equal
protection of the laws.75 To state a valid claim for violation of ones equal protection rights, a

72

Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997).

73

See id.
Pl. Compl., doc. 1, 80.
75
See U.S. CONST. Amend. XIV, 1.
74

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 22 of 34

fundamental right or suspect classification must be implicated.76 Accordingly, if a law neither

burdens a fundamental right nor targets a suspect class, a court will uphold the law.77
Regarding equal protection and marriage, the district courts of this Circuit have held,
following Obergefell, that States must allow same-sex couples to marry on the same terms and
conditions as opposite-sex couples.78 In Obergefell, the Supreme Court extensively observed
that, in regards to the issue of marriage, due process and equal protection rights are inherently
intertwined. See 135 S. Ct. at 260205 (The Due Process Clause and the Equal Protection Clause
are connected in a profound way, though they set forth independent principles. The Courts cases
touching upon the right to marry reflect this dynamic.). Accordingly, the same reasons
Sevier fails to state a substantive due process claim upon which relief may be granted dictate
that Sevier also fails to state an equal protection claim upon which relief may be granted
chiefly, that he has no fundamental right to marry his laptop computer.
The Court in Obergefell 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
scrutiny-tiers in the context of same-sex marriage at all.79 Because Sevier does not belong to a
suspect or quasi-suspect class, rational basis scrutiny applies to the decision to prohibit the
marriage of Sevier and his laptop.80

76

See Heller v. Doe by Doe, 509 U.S. 312, 312 (1993).

U.S. v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (citing Romer v. Evans, 517 U.S. 620, 631
(1996)).
78
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).
79
See generally Obergefell, 135 S. Ct. 2584.
80
See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319320).
77

10

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 23 of 34

The rational bases that support the prohibition on marrying inanimate objects are
voluminous. The right to marry ones computer is not objectively, deeply rooted in the nations
history and tradition such that it qualifies as a protected interest.81 The rational basis for
prohibiting 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 of
the benefits conferred by states as a recognition of societys 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 and
benefits of survivors; birth and death certificates; professional ethics
rules; campaign finance restrictions; workers compensation
benefits; health insurance; and child custody, support, and visitation
rules.
Obergefell, 135 S. Ct. at 2601. Since Sevier has no fundamental right to marry his laptop
computer, does not belong to either a suspect or quasi-suspect class, and a myriad of
rational bases for denying marriage to an inanimate object exist, Sevier fails to state an equal
protection claim upon which relief may be granted. Accordingly, this Court should dismiss his
equal protection claim pursuant to Fed. R. Civ. P. 12(b)(6).
3. Sevier Cannot Show a Violation of the Establishment Clause.
The Establishment Clause of the First Amendment, which applies to the states through
the Fourteenth Amendment, provides that Congress shall make no law respecting an
establishment of religion.82 The Clause mandates governmental neutrality between religion and
religion, and between religion and nonreligion.83 The definition of marriage given in Obergefell

81

See Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

U.S. CONST. AMEND. I, cl. 1; Everson v. Bd. of Educ., 330 U.S. 1, 14-15 (1947).
83
Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
82

11

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 24 of 34

is neutral regarding religion. Yet, Sevier strains to imbue the definition with religious meaning,
primarily by defining all secular purposes as endorsements of the religious dogmas and semi
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,84 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
Seviers claims regarding the purported establishment of anti-theist or secular humanist
religion.85 Although the state may not establish a religion of secularism in the sense of
affirmatively opposing or showing hostility to religion, thus preferring those who believe in no
religion over those who do believe,86
By conflating the term secular with his definition of secularism as a religion, Sevier
asks the court to adopt an impossible Establishment Clause test that has already been rejected by
other courts. To that end, the court need not accept Seviers definition of secularism for the
purposes of a motion to dismiss because Seviers definition of secularism is conclusory and
not a factual allegation. Because Sevier cannot show that secularism is a religion, Sevier

84

Wells v. City and Cnty. of Denver, 257 F.3d 1132 (2001)

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
(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).
86
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226 (1963), the neutrality the Establishment
Clause mandate does not itself equate with hostility towards religion. Smith, 827 F.2d at 692.
85

12

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 25 of 34

cannot state a plausible claim for relief under the Establishment Clause. On that basis alone, the
court can dismiss Seviers claims under the Establishment Clause.
Further, since Sevier cannot show that secularism is a religion, Seviers claim cannot
satisfy the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971), as modified by Justice
OConnor in Lynch v. Donnelly, 465 U.S. 668, 673 (1984).87 To survive under 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.88
i. The Purpose Prong.
The purpose prong tests whether the governments actual purpose is to endorse or
disapprove of religion.89 The stated purpose of adopting an expanded definition of marriage to
include same-sex marriage was not to endorse or disapprove of religion, but to offer fundamental
rights to all persons, a wholly appropriate purpose under the Establishment Clause.90 Sevier
cannot show a government violation of the first prong of the Lemon 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 as
communicating a message of government endorsement or disapproval of religion.91 Because it

87

See Bauchman for Bauchman v. West High School, 132 F.3d 542, 551-54 (10th Cir. 1997).
Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1031 (10th Cir. 2008) (quoting Lemon, 403 U.S.
at 612-13).
89
Bauchman, 132 F.3d at 551 (citing Edwards, 482 U.S. at 585; Wallace, 472 U.S. at 56).
90
See Obergefell v. Hodge, 135 S.Ct. 2584, 2599-2600 (2015).
91
Id. at 551-52 (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. at 779-81 (O'Connor,
J., concurring)).
88

13

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 26 of 34

is an objective inquiry, it is irrelevant whether particular individuals might be offended by [the

government action]. Id. at 555. [N]ot every governmental activity that confers a remote,
incidental, or indirect benefit upon religion is constitutionally invalid.92
Sevier alleges that effect of the definition of marriage to include same-sex couples will be
to reduce marriage into a religious matter, and allow the LGBT community to use [the]
government to impose their religious ideology on everyone else, . . . leaving no room for
objection.93. However, Sevier has failed to show that the expanded definition of marriage is a
religious matter, or how the religious ideologies will be imposed on everyone else in the way
Sevier alleges. Seviers allegations are all conjecture. On this basis alone, the Court should find
that Sevier has not alleged the primary effect of adopting the definition of marriage as stated in
Obergefell is to advance or inhibit religion.94
But, even taken at face value, Seviers Complaint falls short of alleging that the expanded
definition of marriage to include same-sex marriage will have the primary effect of advancing or
inhibiting religion. The definition of marriage to include same-sex marriage conveys a message
of neutrality: the definition neither endorses secularism as a religion, nor does it discredit
theistic religion as a system of belief. See Smith, 827 F.2d at 694. Taking all of Seviers factual

92

Id. at 555; see also Lynch v. Donnelly, 465 U.S. 668 at 683; McGowan v. Maryland, 366 U.S. 420, 442
(1961).
93
Pl. Compl., doc. 1, 56.
94
See Bowen v. Kendrick, 487 U.S. 589, 612 (1988) (stating that it has not been the Court's practice to
strike 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; OO'Connor v.
Washburn University, 416 F.3d at 1227; Weinbaum, 541 F.3d at 1038.

14

Case 2:16-cv-00659-DN-EJF Document 19 Filed 07/28/16 Page 27 of 34

allegations as true, Sevier has stated only legal conclusions and opinion. Sevier 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 relationship
between the government and the religious authority.95 In other words, neither a state nor the
Federal Government can, openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa.96 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.97
As discussed previously, Sevier has failed to show that the definition of marriage as
stated in Obergefell involves the State of Utah in any recognized religious institution or activity.
Although a definition of marriage that includes same-sex marriage does not coincide with
Seviers particular religious beliefs, this definition of marriage does not excessively entangle the
state with religion. That is not sufficient to state a plausible claim for relief under the
Establishment Clause. Thus, Sevier cannot show a government violation of the third prong of the
Lemon test. Therefore, Sevier fails to state a plausible claim for relief under the Establishment
Clause and his claims should be dismissed.

95

Lemon, 403 U.S. at 615.

Everson, 330 U.S. at 16; see also Lee Lee v. Weisman, 505 U.S. 577, 602 n.3 (1992).
97
Bauchman, 132 F.2d at 556; see also Lemon, 403 U.S. at 615.
96

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4. Sevier Cannot Show a Violation of the Free Exercise Clause.

The Free Exercise Clause of the First Amendment, which applies to the states through the
Fourteenth Amendment, provides that Congress shall make no law . . . prohibiting the free
exercise [of religion].98 The Free Exercise Clause guarantees the right of every person to
freely choose his own course with reference [to religious training, teaching and observance], free
of any compulsion from the state.99 The Free Exercise Clause does not impart on an individual
the right to dictate that the definition of marriage conform to a plaintiffs religious beliefs.
Bauchman, 132 F.3d at 557. The governments ability to carry out public policy, cannot depend
on measuring the effects of a government action on a religious objectors spiritual
development.100
To state a Free Exercise claim, Sevier must show the coercive effect of the definition of
marriage to include same-sex couples as it operates against [Sevier] in the practice of [his]
religion.101 The Tenth Circuit has held that the opportunity to opt out of activities that offend a
plaintiff's religious beliefs negates the element of coercion and therefore defeats [a] Free
Exercise claim.102 Sevier has not alleged nor is there any law that would require Sevier to
engage is same-sex marriage. This alone is a sufficient basis for dismissing Seviers Free
Exercise claim.
Moreover, [n]eutral rules of general applicability like a general definition of
marriage- do not raise Free Exercise concerns if they only incidentally burden a particular
98

U.S. CONST. AMEND. I, cl. 1; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963).
100
Smith, 494 U.S. at 885 (quoting Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 451
(1988)).
101
Abington, 374 U.S. at 223; see also Bauchman, 132 F.3d 542, 557.
102
Bauchman, 132 F.3d at 557.
99

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religious practice or belief. Such rules need only be rationally related to a legitimate
governmental interest to survive a constitutional challenge.103
Here, Sevier alleges that Governor Herbert and Attorney General Reyes violated the Free
Exercise Clause by creating coercive pressure . . . to change his orientation or violate his
religious beliefs, being subjected to higher taxes and other fines.104 However, Sevier makes no
factual allegation to support his assertion that denial of his desire to marry an inanimate object
violated his religious beliefs. Nor does Sevier state what religious beliefs would require that he
be allowed to marry an inanimate object. The only religious beliefs that Sevier alleges to espouse
are traditional Christian values. But even then, Sevier does not allege that the exclusion of manobject marriage from the definition of marriage burdens his religious beliefs as a traditional
Christian. Sevier does not even allege that his desire to marry an inanimate object is motivated
by his religious beliefs. To the contrary, Sevier makes very clear that exposure to pornography is
what lead to his sexual preference for machines.105 Therefore, he cannot allege that exclusion of
man-object marriage from the definition of marriage is a substantial burden on his right to the
free-exercise of his religion. Sevier has failed to state a plausible claim for relief under the Free
Exercise Clause.
5. Sevier Cannot Show a Violation of His Constitutional Right to Free Speech
Under the First Amendment.
The Free Speech Clause, which applies to the states through the Due Process Clause of
the Fourteenth Amendment, provides that Congress shall make no law . . . abridging the

103

Id.
Pl. Compl., doc 1, 62.
105
Pl. Compl., doc 1, 44.
104

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freedom of speech.106 Like the rest of Seviers claims, this claim represents a profound
misinterpretation of the definition of marriage as stated in Obergefell - the definition of marriage
regulates conduct, not speech. Contrary to Seviers assertions, the definition of marriage to
include same-sex marriage does not dictate that Sevier espouse a belief in same-sex marriage or
punish Sevier for speaking out against same-sex marriage. Nothing in the definition of marriage
purports to restrict Seviers thoughts or discussion of his beliefs regarding marriage, including
man-object marriage.
Sevier alleges that the definition of marriage excludes him from benefits, dignity
status predicated on egoism, and forces him to marry a member of the same-sex or oppositesex.107 None of Seviers allegations are infringements on his free speech rights. Sevier has
failed to plead the most basic elements of a Free Speech Clause claim. The Court should dismiss
Seviers Free Speech claim for failure to state a plausible claim.
6. Sevier Cannot Show that the State Defendants Violated Seviers Constitutional
Right to Be Free of Compelled Speech Under the First Amendment.
The First Amendments safeguard against state action includes both the right to speak
freely and the right to refrain from speaking at all.108 Thus, the Supreme Court has consistently
prohibited the government from telling people what they must say.109 In order for the
government to compel speech, the government measure must punish, or threaten to punish,
protected speech by governmental action that is regulatory, proscriptive, or compulsory in

106

U.S. CONST. AMEND. I; see, e.g., Gitlow v. New York, 268 U.S. 652, 666 (1925).
Pl. Compl., doc. 1, 66.
108
Cressman v. Thompson, 798 F.3d 938, 951 (10th Cir. 2015) (quoting Wooley v. Maynard, 430 U.S.
705, 714 (1977)).
109
Winter, 555 U.S. at 20-21.
107

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nature.110 In other words, in order to state a claim for compelled speech, a plaintiff must
establish (1) speech; (2) to which he objects; that is (3) compelled by some government action.111
Seviers claim fails on the first element of a compelled speech claim. Sevier has made no
allegation that he was made to speak regarding the definition of marriage in Obergefell. To
state a plausible claim, Sevier must show that he was obliged personally to express the
definition of marriage including same-sex marriage.112 Sevier has not alleged that he was ever
compelled to utter a message or speak as directed by government authorities regarding the
definition of marriage expressed in Obergefell. Sevier cannot show a government violation of his
rights as to the first element of a compelled speech cause of action.
As for the third element of a compelled speech claim, Sevier does not allege that he was
pressed into either fostering public adherence to an ideological point of view or fac[ed]
prosecution for failing to adhere to an ideological point of view.113 Sevier simply alleges that he
was not eligible for benefits available for those who engage in marriage. This is insufficient to
show that Sevier was compelled to foster public adherence to the definition of marriage or that
Sevier would face prosecution for failure to adhere to the definition of marriage in Obergefell.
Further, Sevier has not alleged the Governor Herbert or Attorney General Reyes ever threatened
to prosecute Sevier for failure to personally express his adherence to the definition of marriage
including same-sex marriage. Sevier cannot show a government violation of his rights under the

110
111

See Cressman, 798 F.3d at 951.

Id.

See Johanns v. Livestock Marketing, Assn, 544 U.S. 550, 557 (2005) (The First Amendment
does not leave it open to public authorities to compel a person to utter a message with which he
does not agree.)
112

113

See Cressman, 798 F.3d at 951.

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third element of a compelled speech cause of action and thus, Sevier has failed to state a
plausible claim for compelled speech.
7. Sevier Cannot State a Plausible Claim for Relief for Violation of 1983 As An
Independent Cause of Action.
Section 1983 does not itself create or establish any federally protected right. Instead, it
creates a cause of action for plaintiffs to enforce federal rights created elsewhere federal rights
created by the federal Constitution or, in some cases, other federal statutes.114 In other words,
1983 provides a procedural and remedial vehicle for plaintiffs to assert a claim for relief
against a defendant who, acting under the color of state law, violated the plaintiffs federal rights.
In addition, 1983 provides the exclusive available federal remedy for violation of federal
constitutional rights under the color of state law. Sevier cannot bring claims directly under the
Constitution, but must use 1983 as a means for bringing all constitutional claims.115 Therefore,
there is no independent cause of action for violation of 1983 and thus, Seviers seventh cause
of action fails to state a claim.
8. Sevier Cannot State a Plausible Claim for Relief for Irreparable Injury As An
Independent Cause of Action.
A plaintiff seeking a preliminary injunction must establish, inter alia, that he is likely to
suffer irreparable harm in the absence of preliminary relief.116 A plaintiff suffers irreparable
injury when the court would be unable to grant an effective monetary remedy after a full trial
because such damages would be inadequate or difficult to ascertain.117 However, irreparable

114

See Albright v. Oliver, 510 U.S. 266, 271 (1994).

See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989).
116
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
117
Planned Parenthood Ass'n of Utah v. Herbert, No. 15-4189, 2016 WL 3742008, at *15 (10th Cir. July
12, 2016) citing Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012).
115

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injury is not an independent cause of action. Instead irreparable injury is a necessary element of
obtaining a preliminary injunction.118 Therefore, Sevier cannot establish an independent cause of
action by claiming irreparable injury to his constitutional rights. Accordingly, Seviers eighth
cause of action fails to state a plausible claim for relief.
II.

CONCLUSION

For the reasons set forth above, State Defendants Governor Gary Herbert and Attorney
General Sean Reyes respectfully request that this Court dismiss Seviers Complaint in its entirety,
with prejudice.
DATED: July 28, 2016.
OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ David N. Wolf

DAVID N. WOLF
Assistant Attorney Gener
Counsel for Defendants Governor Herbert
and Attorney General Reyes

118

Winter, 555 U.S. at 20-21.

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CERTIFICATE OF MAILING
I certify that on July 28, 2016, I electronically filed the foregoing, STATE
DEFENDANTS MOTION TO DISMISS AND SUPPORTING MEMORANDUM, and I
also certify that a true and correct copy of the foregoing was sent by United States mail, postage
prepaid, to the following:
Chris Sevier
9 Music Square South, #247
Nashville, TN 37203
PLAINTIFF Pro Se

/s/ Valerie Valenica

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