Utah Coalition of La Raza et al v. Herbert et al

Filing 62

Amicus Curiae BRIEF In Support of the Plaintiffs filed by Intervenor Immigration Equality. (asp)

Brian M. Barnard, USB No. 00215
UTAH CIVIL RIGHTS & LIBERTIES
FOUNDATION, INC.
214 East Fifth South Street
Salt Lake City, Utah 84111-3204
Telephone: [phone]
[e-mail]
Alan E. Schoenfeld (pro hac vice pending)
WILMER CUTLER PICKERING
HALE AND DORR LLP
399 Park Avenue
New York, New York 10022
Telephone: [phone]
[e-mail]
Attorneys for Amicus Curiae
Immigration Equality
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
Utah Coalition of La Raza, et al.,
Plaintiffs,
v.
Gary R. Herbert, et al.,
Defendants.

BRIEF AMICUS CURIAE OF
IMMIGRATION EQUALITY IN
SUPPORT OF PLAINTIFFS
Case No.: 2:11-CV-401 CW
Judge Clark Waddoups

TABLE OF CONTENTS
STATEMENT OF AMICUS’ INTEREST......................................................................................1
SUMMARY OF ARGUMENT .......................................................................................................2
BACKGROUND .............................................................................................................................4
ARGUMENT...................................................................................................................................7
I. Lesbian And Gay Binational Couples Enjoy A Constitutionally Protected,
Fundamental Right To Intimate Association ...................................................8
II.

The Application Of Section 76-10-2901(2)(b) To Binational
Couples, Including Lesbian And Gay Binational Couples, Is Unconstitutional .......13
A.

The Utah Alien Harboring Statute Imposes Criminal
Liability For Providing Food, Shelter, And Other
Physical Assistance....................................................................................14

B.

Harboring Statutes As Applied To A Person Giving Food,
Shelter, Or Other Physical Assistance To A Spouse
Can Reach Constitutionally Protected Conduct.........................................16

C.

The Utah Alien Harboring Statute Impermissibly
Criminalizes Conduct That Is Not Intended To Frustrate
Law Enforcement And Is Constitutionally Protected ................................20

D.

Utah Lacks A Compelling Interest In Enforcing Section
76-10-2901(2)(b) Absent Defendant’s Intent To Frustrate
Law Enforcement.......................................................................................23

CONCLUSION..............................................................................................................................25

TABLE OF AUTHORITIES
CASES

PAGE(S)

Aid for Women v. Foulston,
441 F.3d 1101 (10th Cir. 2006) .....................................................................................................12
Aptheker v. Secretary of State,
378 U.S. 500 (1964).......................................................................................................................25
Bowers v. Hardwick,
478 U.S. 186 (1986).................................................................................................................10, 11
Eisenstadt v. Baird,
405 U.S. 438 (1972).........................................................................................................................3
Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926).......................................................................................................................24
Griffin v. Strong,
983 F.2d 1544 (10th Cir. 1993) .....................................................................................................11
Griswold v. Connecticut,
381 U.S. 479 (1965).........................................................................................................3, 9, 16, 17
J.B. v. Washington County,
127 F.3d 919 (10th Cir. 1997) .......................................................................................................12
Karouni v. Gonzales,
399 F.3d 1163 (9th Cir. 2005) .................................................................................................12, 13
Lassiter v. Dep’t of Social Servs.,
452 U.S. 18 (1981)...........................................................................................................................8
Lawrence v. Texas,
539 U.S. 558 (2003)............................................................................................................... passim
Lyng v. Castillo,
477 U.S. 635 (1986).......................................................................................................................16
Moore v. City of East Cleveland,
431 U.S. 494 (1977).......................................................................................................................24
Navarro-Lopez v. Gonzales,
503 F.3d 1063 (9th Cir. 2007) .......................................................................................................19

Poe v. Ullman,
367 U.S. 497 (1961)...................................................................................................................9, 10
Prince v. Massachusetts,
321 U.S. 158 (1944).........................................................................................................................9
Razkane v. Holder,
562 F.3d 1283 (10th Cir. 2009) .....................................................................................................12
Reno v. Flores,
507 U.S. 292 (1993).......................................................................................................................24
Roberts v. United States Jaycees,
468 U.S. 609 (1984).....................................................................................................10, 11, 12, 16
Smith v. Org. of Foster Families for Equality and Reform,
431 U.S. 816 (1977).......................................................................................................................10
Stanley v. Illinois,
405 U.S. 645 (1972).........................................................................................................................9
State v. Mobbley,
650 P.2d 841 (N.M. Ct. App. 1982)...............................................................................................18
State v. H.,
421 So. 2d 62 (Fla. Dist. Ct. App. 1982) .......................................................................................18
State v. Wallace,
124 P.3d 259 (Utah Ct. App. 2005), aff’d, 150 P.3d 540 (Utah 2006) ..........................................21
Troxel v. Granville,
530 U.S. 57 (2000)...........................................................................................................................8
Trujillo v. Bd. of County Comm’rs,
768 F.2d 1186 (10th Cir. 1985) ...............................................................................................11, 12
United States v. Acosta De Evans,
531 F.2d 428 (9th Cir. 1976) .................................................................................................4, 5, 15
United States v. Arizona,
703 F. Supp. 2d 980 (D. Ariz. 2010),
aff’d, No. 10-16645, 2011 WL 1346945 (9th Cir. Apr. 11, 2011) ................................................21
United States v. Barajas-Chavez,
162 F.3d 1285 (10th Cir. 1999) .....................................................................................................22

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United States v. De Jesus-Batres,
410 F.3d 154 (5th Cir. 2005) ...........................................................................................................4
United States v. Hill,
279 F.3d 731 (9th Cir. 2002) ................................................................................................. passim
United States v. Hudson,
102 F. App’x 127, 133 n.4 (10th Cir. 2004) ..................................................................................20
United States v. Lockhart,
956 F.2d 1418 (7th Cir. 1992) .......................................................................................................20
United States v. Lopez,
521 F.2d 437 (2d Cir. 1975).............................................................................................................4
United States v. Mitchell,
177 F.3d 236 (4th Cir. 1999) .........................................................................................................20
United States v. Ozcelik,
527 F.3d 88 (3d Cir. 2008)...........................................................................................................4, 5
United States v. Tipton,
518 F.3d 591 (8th Cir. 2008) .........................................................................................................15
United States v. Yarbrough,
852 F.2d 1522 (9th Cir. 1988) .......................................................................................................15
United States v. Ye,
588 F.3d 411 (7th Cir. 2009) ...........................................................................................................4
United States v. Zabriskie,
415 F.3d 1139 (10th Cir. 2005) .....................................................................................................20
United States v. Zerba,
21 F.3d 250 (8th Cir. 1994) ...........................................................................................................20
Washington v. Glucksberg,
521 U.S. 702 (1997)...................................................................................................................9, 24
STATUTES
8 U.S.C. § 1101(f)(3) .....................................................................................................................19
8 U.S.C. § 1324................................................................................................................................4
8 U.S.C. § 1324(a)(1)(A)(ii) ..........................................................................................................22

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8 U.S.C. § 1324(a)(1)(A)(iii) ...................................................................................................14, 21
18 U.S.C. § 1071......................................................................................................................14, 20
Utah Code Ann. § 76-10-2901.........................................................................................................2
Utah Code Ann. § 76-10-2901(2)(b) ..................................................................................... passim
Utah Code Ann. § 76-10-2901(2)(c)..............................................................................................14
MISCELLANEOUS
Dan Markel et al., Criminal Justice and the Challenge of Family Ties,
2007 U. Ill. L. Rev. 1147 (2007)....................................................................................................18
Eisha Jain, Immigration Enforcement and Harboring Doctrine,
24 Geo. Immigr. L.J. 147 (2010) .....................................................................................................2
Gary J. Gates, The Williams Institute, Same-sex Couples and the Gay, Lesbian, Bisexual
Population: New Estimates from the American Community Survey (2006)....................................2
Human Rights Watch & Immigration Equality, Family, Unvalued: Discrimination,
Denial, and the Fate of Binational Same-Sex Couples under U.S. Law (2006) ..................2, 5, 6, 7
News Release, Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011) .........24
News Release, Governor Herbert Issues Statement on Illegal Immigration Reform (Aug.
13, 2010) ........................................................................................................................................24
Utah Senate Floor Debate on HB 497, Day 39..............................................................................24

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STATEMENT OF AMICUS’ INTEREST
Immigration Equality is a national organization that works to end discrimination in
immigration law against those in the lesbian, gay, bisexual, and transgender (“LGBT”)
community and immigrants who are living with HIV or AIDS.

Incorporated in 1994,

Immigration Equality helps those affected by discriminatory practices through education,
outreach, advocacy, and the maintenance of a nationwide resource network and a heavilytrafficked website. Immigration Equality also runs a pro bono asylum program and provides
technical assistance and advice to hundreds of attorneys nationwide on sexual orientation,
transgender, and HIV-based asylum matters.
Immigration Equality is particularly concerned by Utah’s Illegal Immigration
Enforcement Act (“HB 497”), because it criminalizes the conduct of lesbian and gay United
States citizens who “harbor” foreign-born same-sex spouses or partners.

And unlike

heterosexual couples, who are afforded the legal means to sponsor foreign-born spouses and
partners, providing them a path to residency and U.S. citizenship through marriage, lesbian and
gay citizens are deprived of the ability to affect the status of their same-sex partners, because
they cannot sponsor a foreign-born spouse or partner to immigrate lawfully.

By recent estimates, nearly 260 families comprised of U.S. citizens and lesbian or gay
non-citizen partners live in Utah,1 many with children. HB 497 makes it likely that many of
these families will suffer the inequitable effects of Utah’s law that criminalizes many of the most
routine aspects of a couple’s intimate relationship, and, by its terms, demands that such families
tear themselves apart, else the U.S. citizen be subject to criminal prosecution for “harboring” and
“sheltering” an undocumented alien.
Immigration Equality supports the arguments of Plaintiffs Utah Coalition of La Raza et
al. regarding the preemption of HB 497 by federal law. With this amicus brief, Immigration
Equality supplies an additional reason why enforcement of Utah Code Ann. § 76-102901(2)(b)—the Utah alien harboring statute—raises troubling constitutional issues and should
be permanently enjoined.

SUMMARY OF ARGUMENT
Immigration Equality submits this brief to draw the Court’s attention to the singular and
acute constitutional peril for same-sex binational couples2 living in Utah posed by Section 10 of
HB 497, which amended Utah Code Ann. § 76-10-2901. Section 76-10-2901(2)(b) threatens
severe and irreparable harm to individuals in binational couples who may be subject to its
1

UCLA’s Williams Institute estimates that in 2005, 4,307 same sex couples lived in Utah.
Gary J. Gates, The Williams Institute, Same-sex Couples and the Gay, Lesbian, Bisexual
Population: New Estimates from the American Community Survey (2006) App’x 1, available at
http://www.law.ucla.edu/williamsinstitute/publications/SameSexCouplesandGLBpopACS.pdf.
Immigration Equality and Human Rights Watch estimate that roughly 6% of same sex couples in
the U.S. include one non-U.S. citizen partner. Human Rights Watch & Immigration Equality,
Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under
U.S. Law (2006) 7, available at http://www.immigrationequality.org/uploadedfiles/
FamilyUnvalued.pdf (“Family, Unvalued”). See also Eisha Jain, Immigration Enforcement and
Harboring Doctrine, 24 Geo. Immigr. L.J. 147, 153 nn.31 & 32 and accompanying text (2010).
2

Binational couples are couples in which one partner is a U.S. citizen or permanent
resident, and the other is a foreign national.

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enforcement. These individuals, as committed partners, have an interest recognized under the
Due Process Clause of the United States Constitution in maintaining their “noble” association,
“harmony in living,” and “bilateral loyalty,” free from unwarranted interference by the
government. Griswold v. Connecticut, 381 U.S. 479, 486 (1965); see also Eisenstadt v. Baird,
405 U.S. 438, 453 (1972) (confirming “the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting a person”).
Under Griswold, Eisenstadt, and Lawrence v. Texas, 539 U.S. 558 (2003), the state may not
criminalize the relationships of these couples, or the incidences of such relationships, absent the
most compelling of reasons.
But Section 76-10-2901(2)(b) sweeps broadly, purporting to break apart a protected
intimate relationship by criminalizing mere cohabitation with an alien spouse or partner who
lacks legal status. As at least one United States Court of Appeals has recognized, harboring
statutes such as Section 76-10-2901(2)(b) raise serious due process concerns because of the ways
in which they interfere with family relations. See United States v. Hill, 279 F.3d 731, 736-37
(9th Cir. 2002) (because the federal fugitive-harboring statute reaches conduct that “is the norm
in the context of marriage—indeed, it is expected and integral to the relationship,” the statute
“could conceivably operate directly on an intimate relation of a marriage and exert a maximum
destructive impact upon it,” such that “basing a harboring or accessory conviction on normal and
expected spousal conduct might well violate Griswold”). Immigration Equality’s clients are
particularly vulnerable to the destructive force of Section 76-10-2901(2)(b) because, as same-sex
couples, sponsorship by the citizen partner for the adjustment of immigration status of the noncitizen partner to lawful permanent residence is unavailable.

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BACKGROUND
HB 497 includes a provision criminalizing the “conceal[ing], harbor[ing], or shelter[ing]
from detection [of] an alien in any place within this state, including a building or means of
transportation,” if the accused knows or recklessly disregards the fact that the alien is in the
United States in violation of federal law. HB 497 § 10 (amending Utah Code Ann. § 76-102901(2)(b) (the “Utah alien harboring statute”)).3 The provision appears to be modeled, at least
in part, on the federal statute that criminalizes the harboring of undocumented immigrants. See 8
U.S.C. § 1324.

The federal statute—and, presumably, its Utah analog—sweeps broadly,

reaching any “conduct tending substantially to facilitate an alien’s remaining in the United States
illegally.” United States v. Lopez, 521 F.2d 437, 440–441 (2d Cir. 1975) (internal quotation
marks omitted); see also, e.g., United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008) (same);
United States v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005) (same); but see United
States v. Ye, 588 F.3d 411, 416 (7th Cir. 2009) (“Whether that conduct ‘tends substantially’ to
assist an alien is irrelevant, for the statute requires no specific quantum or degree of assistance.”).
Harboring under the federal alien harboring statute is not limited to the affirmative
conduct associated with smuggling aliens into the country, but rather includes assistance
provided to aliens, even if they entered the country legally but they have remained here after the
expiration of their lawful status. See Lopez, 521 F.2d at 439–441 (discussing legislative history
and determining that non-smuggling activities like provision of housing and assistance in finding
employment constitute harboring); see also United States v. Acosta de Evans, 531 F.2d 428, 430
3

Section 76-10-2901(2)(b) includes a requirement that the conduct be committed
“knowingly, with the intent to violate federal immigration law.” It also specifies that any
concealment, harboring or sheltering within “a building or means of transportation” be “for
commercial advantage or private financial gain.” As discussed below, neither of these
limitations is sufficient to prevent the Utah alien harboring statute from infringing upon
constitutionally protected behavior.

-4-

(9th Cir. 1976) (same). The federal provision covers a broad range of activities, including
“shelter, transportation, direction about how to obtain false documentation, or warnings about
impending investigations.” Ozcelik, 527 F.2d at 99. The Ninth Circuit has held that the term
“harbor” means simply “to give shelter to.” Acosta de Evans, 531 F.2d at 430 (upholding
conviction of defendant for housing undocumented immigrant relative for two months without
requiring “clandestine sheltering”).
As would be expected of any normal, loving couple, lesbian and gay binational couples
living in Utah engage in precisely the kind of conduct described in the harboring case law: they
give shelter to one another, and engage in conduct intended to keep both partners physically and
emotionally proximate and safe from harm. This conduct has been recognized as “expected and
integral” to the relationship of a committed couple. Hill, 279 F.3d at 763. Yet, Utah’s Illegal
Immigration Enforcement Act criminalizes this conduct. By failing to turn in the people that
they have committed to sharing their lives with, lesbian or gay U.S. citizens in binational
relationships could be arrested and criminally prosecuted for harboring an undocumented alien.
During its more than sixteen years of operation, Immigration Equality has counseled
countless couples that would be subject to the Utah alien harboring statute. Across the country,
an estimated 36,000 binational same-sex couples live together, with foreign-national partners
from almost every nation in the world.4 As a joint Immigration Equality and Human Rights
Watch report states:
[S]uch families face [crippling barriers] in pursuing a goal enshrined in America’s
founding document—happiness. Those barriers center around a simple fact.
With only rare exceptions, a heterosexual couple where one partner is foreign
[and] one [is] a U.S. citizen[] can claim the right to enter the U.S. with a few
strokes of a pen. They need not even marry; they need only show to a U.S.

4

Family, Unvalued 7.

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consulate abroad that they intend to do so and have met at least once before in
their lives. . . .
But a lesbian or gay couple cannot even claim basic rights. Their relationship—
even if they have lived together for decades, even if their commitment is
incontrovertible and public, even if they have married or formalized their
partnership in a place where it is possible—is irrelevant for purposes of [obtaining
lawful status] in the United States. Instead, they face a long limbo of legal
indifference, harassment, and fear…. [This has a] devastating impact not only on
their partnerships but on their careers, homes, children, livelihoods, and lives.5
Two couples’ stories illustrate the peril these individuals confront. M., 54 years old, is a
disabled veteran who served honorably in the United States Coast Guard for thirteen years. M.’s
life revolves around his friends and family, including his partner B. M. and B. met and fell in
love three years ago, when B., an Italian citizen, visited the United States as a tourist. B.
returned later that year on a student visa and began studies in Utah. A short time later, however,
B. was forced to abandon his visa status to travel to Italy following a death in his family. After
being forced to live apart for some time, B. was able to secure a second student visa to study in
the United States and again joined M. in Utah.
B. has always been in the United States legally, but fears that he could one day lose his
student visa status. M. lives on a very limited income from his disability and restrictions on B.’s
ability to work make it hard for them to make ends meet and to afford the tuition for B.’s school.
When B.’s visa expires, he and M. will confront difficult options. First, the couple may
immigrate to Italy and leave behind the life they have built together in the United States. For M.,
living abroad will make it difficult for him to access the care that he receives through his doctors
at the Veterans Administration and will force him to separate from his adult son who also calls
Utah home. Second, the couple may decide to stay in the United States, with B. residing here
after his authorized stay expires. This scenario would expose M. to obvious legal peril under HB
5

Id. at 8.

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497, and would expose B. to potential legal peril, as well, for conduct that he has engaged in
without incident for years.
Another couple, T. and R. face an even more imminent risk of harm under HB 497
simply for continuing their relationship. T. and R. have been living together as a loving couple
for two years. T., 30 years old, an American citizen. T.’s partner R. is a Peruvian citizen. R.
entered the United States lawfully, but his authorized stay has expired. T. is a recent graduate of
the University of Utah, where he earned a Masters in Social Work. R. finished most of medical
school in his native Peru before coming to the United States and hopes to complete his medical
education and to work as a physician one day. T. and R.’s hopes and dreams are much like those
of many young couples—they hope to marry and build a life together. T. would like to marry R.
and sponsor him for a lawful immigration status based on their relationship—but he cannot. The
passage of HB 497 makes the couple feel even more vulnerable. They both worry that merely by
virtue of their continued cohabitation T. may expose himself to criminal charges under HB 497.
As a result of this uncertainty, T.— a lifelong resident of Utah—and R. are considering leaving
the state.
For most binational couples like these, if the foreign partner goes undocumented, this
means a life of “privation, immobility, and fear.”6 They choose this option not out of wanton
disregard for the law or specific intent to violate federal immigration law, but because the law
has left them no other way to keep their relationship alive and their family together.

ARGUMENT
The relationships shared by lesbian and gay binational couples, like all forms of intimate
family association, are subject to the protection of the Due Process Clause of the United States
6

Id. at 73.

-7-

Constitution. Utah’s harboring statute unjustly and unconstitutionally forces the citizen spouse
or partner to choose between violating state law or turning in his or her spouse or partner to the
authorities for certain deportation.

As the Ninth Circuit predicted in Hill, this statute, if

enforced, would “operate directly on an intimate relation … and exert a maximum destructive
impact upon it,” 279 F.3d at 737. The statute thus also runs afoul of the Due Process Clause and
the Supreme Court’s decisions in Griswold and Lawrence, among others.

I.

LESBIAN AND GAY BINATIONAL COUPLES ENJOY A CONSTITUTIONALLY PROTECTED,
FUNDAMENTAL RIGHT TO INTIMATE ASSOCIATION
Although they are afforded no legal protection by the laws of the State of Utah, lesbian

and gay couples living in Utah—regardless of their immigration status—are protected by the
United States Constitution. As the Supreme Court held in Lawrence, these couples enjoy a
“right to liberty under the Due Process Clause,” which “gives them the full right to engage in
their conduct” without undue or burdensome government intervention or intrusion. 539 U.S. at
578.
The Due Process Clause “expresses the requirement of ‘fundamental fairness,’ a
requirement whose meaning can be as opaque as its importance is lofty.” Lassiter v. Dep’t of
Social Servs., 452 U.S. 18, 24 (1981). “Applying the Due Process Clause is therefore an
uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular
situation by first considering any relevant precedents and then by assessing the several interests
that are at stake.” Id. at 24-25. While superficially concerned only with fair procedures, the Due
Process Clause “guarantees more than fair process.” Troxel v. Granville, 530 U.S. 57, 65 (2000).
The substantive component of due process “provides heightened protection against government
interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg,

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521 U.S. 702, 720 (1997); see also Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J.,
dissenting) (“[C]ertain interests require particularly careful scrutiny of the state needs asserted to
justify their abridgment.”).
Among the fundamental rights protected by the Due Process Clause is the right to
intimate association, which includes the right to be free from unfair or undue government
interference with ongoing family relations. The Court’s protection of intimate association is
grounded in a broad conception of privacy, which holds that there is a “private realm of family
life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). At the
core of that realm is a couple’s “coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
Accordingly, the Court has vigilantly protected against state actions that unduly or
unfairly interfere with ongoing interpersonal relations. The Supreme Court’s emphasis on the
“integrity” of the home underscores its concern for an undisturbed family life. See Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (discussing the importance of “[t]he integrity of the family
unit”). As Justice Harlan observed in his dissenting opinion in Poe v. Ullman, “The home
derives its pre-eminence as the seat of family life. And the integrity of that life is something so

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fundamental that it has been found to draw to its protection the principles of more than one
explicitly granted Constitutional right.” 367 U.S. at 551-52 (emphasis added).7
In expounding the Due Process Clause in Lawrence, the Supreme Court held that choices
made by consenting adults regarding their intimate, interpersonal existence are a matter of
personal liberty beyond the reach of government. See Lawrence, 539 U.S. 558. Observing that
“the case should be resolved by determining whether the petitioners were free as adults to engage
in the private conduct in the exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution,” id. at 564, the Court answered the question
affirmatively and held that “petitioners are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by making their private sexual conduct a
crime. Their right to liberty under the Due Process Clause gives them the full right to engage in
their conduct without intervention of the government.” Id. at 578.
Notably, the Court in Lawrence also explicitly adopted Justice Stevens’s dissenting view
in Bowers v. Hardwick, 478 U.S. 186 (1986). See Lawrence, 539 U.S. at 578 (“Justice Stevens’
analysis, in our view, should have been controlling in Bowers and should control here.”). In his
dissent, Justice Stevens had opined that “individual decisions” made by adults “concerning the
intimacies of their physical relationship, even when not intended to produce offspring, are a form

7

Marriage or some other form of state recognition of a personal or intimate relationship, is
not, and has never been, the lynchpin of the Supreme Court’s substantive due process analysis.
The Court’s treatment of foster families is instructive. In a case involving the protectable rights
of foster parents and children despite the absence of any state-sanctioned relationship between
the parties, the Court has recognized that “the importance of the familial relationship, to the
individuals involved and to the society, stems from the emotional attachments that derive from
the intimacy of daily association.” Smith v. Org. of Foster Families for Equality and Reform,
431 U.S. 816, 844 (1977); see also Roberts v. United States Jaycees, 468 U.S. at 609, 618 (1984)
(“The Court has long recognized that, because the Bill of Rights is designed to secure individual
liberty, it must afford the formation and preservation of certain kinds of highly personal
relationships a substantial measure of sanctuary from unjustified interference by the State.”).

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of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” Bowers, 478
U.S. at 216 (Stevens, J., dissenting). According to Justice Stevens, the Court’s precedent—
including Griswold and Eisenstadt—was animated by a “fundamental” concern for the
individual’s right to make such decisions, and a belief that state interference with such decisions
could be an intolerable intrusion into the protected sphere of individual liberty:
In consideration of claims of this kind, the Court has emphasized the individual
interest in privacy, but its decisions have actually been animated by an even more
fundamental concern . . . . These cases do not deal with the individual’s interest
in protection from unwarranted public attention, comment or exploitation. They
deal, rather, with the individual’s right to make certain unusually important
decisions that will affect his own, or his family’s destiny. The Court has referred
to such decisions as implicating ‘basic values,’ as being ‘fundamental,’ and as
being dignified by history and tradition. The character of the Court’s language in
these cases brings to mind the origins of the American heritage of freedom—the
abiding interest in individual liberty that makes certain state intrusions on the
citizen’s right to decide how he will live his own life intolerable.
Bowers, 478 U.S. at 217 (Stevens, J., dissenting) (internal quotation marks and citations
omitted). Justice Stevens concluded that the “essential liberty that animated the development of
the law … surely embraces the right to engage in nonreproductive, sexual conduct that others
may consider offensive or immoral.” Id.
Consistent with these bedrock principles, the Tenth Circuit has recognized that the right
to intimate association is an “‘intrinsic element of personal liberty.’” Trujillo v. Bd. of County
Comm’rs, 768 F.2d 1186, 1188 (10th Cir. 1985) (quoting Roberts v. United States Jaycees, 468
U.S. 609, 620 (1984); see also Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993) (“We
believe the familial right of association is properly based on the ‘concept of liberty in the
Fourteenth Amendment.’” (citation omitted)).

The circuit has held that this right protects

individuals’ “choices to enter into and maintain certain intimate human relationships,” including
“[f]amily relationships, [which] by their nature, involve deep attachments and commitments to
the necessarily few other individuals with whom one shares not only a special community of
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thoughts, experiences, and beliefs but also distinctly personal aspects of one’s life.” Trujillo, 768
F.2d at 1188 (quoting Roberts, 468 U.S. at 619-20); see also J.B. v. Washington County, 127
F.3d 919, 927 (10th Cir. 1997). The Tenth Circuit has left no doubt that “freedom of intimate
association protects associational choice as well as biological connection.” Trujillo, 768 F.2d at
1188. Moreover, the court has cited Lawrence for the proposition that conduct between two
adults who have chosen to be together is amongst “‘the most private human conduct,’” with
which the state should resist interfering. Aid for Women v. Foulston, 441 F.3d 1101, 1124 (10th
Cir. 2006) (citation omitted).
Moreover, the Tenth Circuit has cited with approval an out-of-circuit case that reads
Lawrence to prohibit the state from imposing unconscionable choices on lesbians and gays in the
service of otherwise legitimate government interests. In Karouni v. Gonzales, 399 F.3d 1163
(9th Cir. 2005) (cited with approval in Razkane v. Holder, 562 F.3d 1283, 1288 (10th Cir.
2009)), the court considered a gay Lebanese man’s application for asylum. The United States
argued that he was removable, even though the Lebanese government might subject him to
torture for engaging in homosexual conduct upon his return to Lebanon. The court rejected the
United States’ argument:
[T]he Attorney General appears content with saddling Karouni with the Hobson’s
choice of returning to Lebanon and either (1) facing persecution for engaging in
future homosexual acts or (2) living a life of celibacy. In our view, neither option
is acceptable. As the Supreme Court has counseled, “[w]hen sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring.” Lawrence, 539 U.S. at 567….
By arguing that Karouni could avoid persecution by abstaining from future
homosexual acts, the Attorney General is essentially arguing that the INA requires
Karouni to change a fundamental aspect of his human identity, and forsake the
intimate contact and enduring personal bond that the Due Process Clause of the
Fourteenth Amendment protects from impingement in this country and that
“ha[ve] been accepted as an integral part of human freedom in many other
countries,” Lawrence, 539 U.S. at 577.

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Karouni, 399 F.3d at 1173. Karouni thus stands for the proposition that the government should
not and cannot put lesbian and gay individuals to unconscionable choices that arise uniquely as a
natural result of their intimate associations.
Yet by its terms, Section 76-10-2901(2)(b) does just that. Although the reach of the Act
extends to heterosexual couples and other familial relationships, it has a uniquely all-or-nothing
impact on same-sex couples—requiring the U.S. citizen partners in lesbian and gay binational
couples either to break up their families, abandon the U.S. to live in exile with their noncitizen
partners in his or her native country, or to honor their commitments to their partners or spouses
and face the prospect of criminal prosecution.

II.

THE APPLICATION OF SECTION 76-10-2901(2)(B) TO BINATIONAL COUPLES,
INCLUDING LESBIAN AND GAY BINATIONAL COUPLES, IS UNCONSTITUTIONAL
The Utah alien harboring statute criminalizes conduct that is protected by the Due

Process Clause as integral to spousal and intimate relationships. The statute criminalizes the
constitutionally protected support and care that spouses and partners provide to each other on a
regular basis, and does so without regard to whether such conduct is intended to frustrate law
enforcement.

The statute thereby impermissibly infringes upon constitutionally protected

conduct, because an individual may violate the statute simply by providing support and care for a
spouse or partner with knowledge of that spouse or partner’s lack of legal immigration status—
and it does so against a backdrop of legal rules that do not permit lesbian and gay couples, unlike
their heterosexual counterparts, to regularize the non-citizen partner’s status.

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A.

The Utah Alien Harboring Statute Imposes Criminal Liability For Providing
Food, Shelter, And Other Physical Assistance

The Utah alien harboring statute makes it illegal for a person to “conceal, harbor, or
shelter from detection an alien in a place within” Utah. Utah Code Ann. § 76-10-2901(2)(b). A
defendant under Section 76-10-2901(2)(b) must know or recklessly disregard “the fact that the
alien is in the United States in violation of federal law.” Id. Section 76-10-2901(2)(b) also
requires that the conduct be committed “knowingly, with the intent to violate federal
immigration law.” Id. Another subsection also provides criminal consequences for one who
“encourage[s] or induce[s] an alien to come to, enter, or reside in this state, knowing or in
reckless disregard of the fact that the alien’s coming to, entry, or residence is or will be in
violation of law.” Id. § 76-10-2901(2)(c).
Although courts have yet to interpret the precise requirements of the Utah alien harboring
statute, that statute closely resembles the federal statutes criminalizing the harboring of a
fugitive, 18 U.S.C. § 1071, and the harboring of an undocumented alien, 8 U.S.C.
§ 1324(a)(1)(A)(iii).

The federal fugitive harboring statute imposes liability on one who

“harbors or conceals” a person for whom an arrest warrant or process has been issued “so as to
prevent his discovery and arrest,” after having notice or knowledge of the warrant or process. 18
U.S.C. § 1071. The federal undocumented alien harboring statute imposes liability on one who
“conceals, harbors, or shields from detection,” or attempts to do so with respect to an alien, with
knowledge of or reckless disregard for the fact that the alien has “come to, entered, or remains in
the United States in violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iii).
These federal statutes have been interpreted to reach the acts of providing physical and
economic support to fugitives or undocumented aliens. With respect to the federal fugitive
harboring statute, “[a]ny physical act of providing assistance, including food, shelter, and other

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assistance to aid the [fugitive] in avoiding detection and apprehension,” can rise to the level of
harboring a fugitive. Hill, 279 F.3d at 738 (quoting United States v. Yarbrough, 852 F.2d 1522,
1543 (9th Cir. 1988) (alteration in Hill)).

The term “harbor” as used in the federal

undocumented alien harboring statute has been held to mean “to give shelter to,” and that statute
has also been interpreted broadly to cover non-smuggling activities, such as provision of housing
and assistance in finding employment. See Acosta de Evans, 531 F.2d at 428, 430; United States
v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008) (conduct that “substantially facilitates an alien’s
remaining in the United States illegally” is sufficient to constitute harboring).
Given the broad interpretations of “harboring” and “concealing” in the federal fugitive
harboring and undocumented alien harboring statutes, it is reasonable to expect that any person
providing food, shelter, or other assistance to a spouse or partner who does not have legal status
could very well be covered by the Utah alien harboring statute, and hence could be subject to
prosecution thereunder. As courts have recognized in the context of the federal and state fugitive
harboring statutes,8 in certain circumstances prosecutions for such conduct would violate the
constitutional protection due to intimate and spousal relationships. Even though the government
clearly has a stronger interest in preventing individuals from harboring fugitives than preventing
them from harboring undocumented aliens, in cases involving fugitive harboring statutes courts
have still been reluctant to allow prosecutions that would intrude into the private sphere of
familial relationships.

8

As discussed below, Congress has plenary authority over immigration and naturalization
law. See infra Part II.D. The federal alien harboring statute accordingly must be analyzed under
an entirely different rubric from Utah’s law, balancing the federal government’s undisputed
interest in maintaining the integrity of our nation’s borders with any competing interests. The
lack of any compelling Utah state interest in enforcing federal immigration law only underscores
the constitutional peril posed by Section 76-10-2901(2)(b).

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B.

Harboring Statutes As Applied To A Person Giving Food, Shelter, Or Other
Physical Assistance To A Spouse Can Reach Constitutionally Protected
Conduct

The fundamental right of intimate association arising under the Due Process Clause
protects persons against prosecution for at least some acts that the state might otherwise
criminalize. The Supreme Court’s decisions in Griswold, Eisenstadt, and Lawrence make that
much clear. Utah’s harboring statute, as applied to a person giving ordinary support to a spouse
or partner, reaches constitutionally protected conduct because the statute prohibits acts that are
an integral part of an intimate association or relationship. Cohabitation, in particular, is a
protected incident of a loving relationship, and the government may not forbid it absent
compelling reasons and means narrowly tailored to advance state objectives. See, e.g., Roberts,
468 U.S. at 618 (“The Court has long recognized that, because the Bill of Rights is designed to
secure individual liberty, it must afford the formation and preservation of certain kinds of highly
personal relationships a substantial measure of sanctuary from unjustified interference by the
State.”); see also Lyng v. Castillo, 477 U.S. 635, 638 (1986) (classification is subject to
heightened scrutiny if it “directly and substantially interfere[s] with family living arrangements
and thereby burdens a fundamental right”).
In Griswold, for example, the Court struck down a Connecticut statute that criminalized
the use of contraception. 381 U.S. at 480. The Court did not base its decision on a review of
“the wisdom, need, and propriety of laws that touch economic problems, business affairs, or
social conditions.” Id. at 482. Rather, it concluded that the law unnecessarily invaded an area of
protected freedoms. See id. at 485. The State might have achieved its objectives by regulating
the manufacture or sale of contraceptives, the Court reasoned, but erred in enacting a statute that
“operates directly on an intimate relation of husband and wife.” Id. at 482 (emphasis added); see

- 16 -

also id. at 485 (holding that the State cannot seek to achieve its goals through means that have an
unnecessarily “destructive impact” upon a constitutionally protected relationship).

State

intervention in a couple’s decision whether to use contraception (not to speak of state collection
of evidence pertaining to such use) was undoubtedly disruptive and damaging to an intimate
relationship. See id. at 485-86.
Just as a statute that operates directly on a couple’s decision whether to use contraception
is unnecessarily intrusive, a statute that operates directly on a person’s decision whether to
continue living with his or her intimate partner is unnecessarily destructive. The United States
Court of Appeals for the Ninth Circuit, applying Griswold, has recognized this principle. In Hill,
the Ninth Circuit considered a challenge to convictions under the federal fugitive harboring and
accessory statutes based on the defendant’s “rights of association, marriage, privacy, and due
process.” 279 F.3d at 736. The defendant there was found to have provided her fugitive
husband with “food, shelter, and other assistance,” after learning that a felony arrest warrant had
been issued for him. Id. at 738. The Hill court observed that “[t]he problems in Griswold were
that the anti-contraceptive statute operated ‘directly on an intimate relation’ of the marriage and
sought to ‘achieve its goals by means having a maximum destructive impact upon [the marital]
relationship,’ thus ‘sweep[ing] unnecessarily broadly.’” Hill, 279 F.3d at 736 (quoting Griswold,
381 U.S. at 482) (alteration in Hill). The court noted that providing shelter and material support
to a spouse “is the norm in the context of marriage—indeed, it is expected and integral to the
relationship.” Id. at 736-37. Thus, the court found that the fugitive harboring and accessory
statutes “could conceivably operate directly on an intimate relation of a marriage and exert a
maximum destructive impact upon it,” such that “basing a harboring or accessory conviction on
normal and expected spousal conduct might well violate Griswold.” Id. at 737.

- 17 -

The Hill court ultimately determined, however, that as applied to the defendant the
federal fugitive harboring and accessory statutes did not “sweep unnecessarily broadly” and were
not unconstitutional because the defendant’s provision of “shelter, employment, money, food and
other material support” after her fugitive husband fled the country, and her attempt to orchestrate
delivery of the couple’s possessions abroad “was self-evidently intended to assist [her spouse] in
evading discovery or apprehension by law enforcement officials.”

Hill, 279 F.3d at 737.

Because the defendant so clearly intended to frustrate law enforcement, the Hill court found that
it did not need to resolve “the core Griswold issue … [of] where lies the line between conduct
that is normal spousal support and sharing of resources, and conduct that demonstrates an intent
to frustrate law enforcement.” Id. Nevertheless, the Hill court made it clear that “normal and
expected spousal conduct” were subject to exacting constitutional protection, and further that
prosecution of an intimate partner or spouse under the federal criminal harboring and accessory
statutes could potentially run afoul of the mandates of the Due Process Clause.
In a similar vein, state legislatures have recognized that state laws criminalizing the
harboring of fugitives can also be interpreted to criminalize the support or physical assistance
integral to spousal or intimate relationships. A significant number of states have provided for
exemptions to or reduced liability under their harboring statutes for family members, generally
defined as spouses, parents, grandparents, children, grandchildren and siblings.9

These

exemptions have been justified by the belief that “it is unrealistic to expect persons to be deterred
from giving aid to their close relations.” State v. Mobbley, 650 P.2d 841, 842 (N.M. Ct. App.
1982); see also State v. H., 421 So. 2d 62, 65 (Fla. Dist. Ct. App. 1982) (Florida’s statutory
exemption for family members properly balanced the state’s interest in apprehending criminals
9

See Dan Markel et al., Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L.
Rev. 1147, 1158-59 (2007).

- 18 -

against its interest in “safeguarding the family unit from unnecessary fractional pressures … by
conferring immunity so that [close family members] need never choose between love of family
and obedience to the law”).
Federal courts, too, have recognized the significance of these family-member exemptions
from state criminal harboring laws. For example, the Ninth Circuit determined that a conviction
under the California accessory after the fact statute did not constitute a “crime of moral
turpitude” as the term is used in the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(3). See
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007). The court relied, in part, on
the fact that “[m]any states, including one in this circuit, have recognized the difficult choices
facing the family members of an escaping felon and have exempted family members from
accessory after the fact liability.” Id. at 1071-72. In concluding that a California accessoryafter-the-fact conviction is not a crime “involving conduct that is inherently base, vile, or
depraved, and contrary to the private and social duties man owes to his fellow men or to society
in general,” id. at 1068, the court observed, “It would be illogical to conclude that society in
general would call the action of harboring one’s son or daughter a crime that is inherently base or
depraved when many states do not even consider such conduct criminal,” id. at 1072. As shown
by courts’ recognition of family-member exceptions from fugitive harboring statutes, support or
physical assistance provided to family members should not be subject to criminal prosecution,
especially because family, spousal, and intimate relationships have been recognized as
constitutionally protected.

- 19 -

C.

The Utah Alien Harboring Statute Impermissibly Criminalizes Conduct
That Is Not Intended To Frustrate Law Enforcement And Is Constitutionally
Protected

Based on the generally accepted interpretations of the federal and state criminal harboring
statutes, the Utah alien harboring statute would likely criminalize the “normal and expected”
support that characterizes spousal and intimate relationships. The statute thus infringes on
constitutionally protected conduct because it criminalizes normal spousal support that is not
intended to frustrate law enforcement. Hill makes clear that only when conduct demonstrates an
overt intent to frustrate law enforcement can the government’s law enforcement interest trump an
individual’s constitutionally protected rights of privacy, association, and family life. Hill, 279
F.3d at 737 (declining to determine “where lies the line between conduct that is normal spousal
support and sharing of resources, and conduct that demonstrates an intent to frustrate law
enforcement” when defendant’s actions were “self-evidently intended to assist [fugitive husband]
from evading discovery or apprehension by law enforcement officials”). Indeed, an intent to
prevent a fugitive’s discovery and arrest is a required element for a conviction under the federal
fugitive harboring statute, 18 U.S.C. § 1071. See, e.g., Hill, 279 F.3d at 737 (“by their terms, the
harboring and accessory statutes reach only conduct that is intended to frustrate law
enforcement”); see also United States v. Zabriskie, 415 F.3d 1139, 1145 (10th Cir. 2005)
(holding that intent “to prevent the fugitive’s discovery or arrest” is an element of the crime);
United States v. Hudson, 102 F. App’x 127, 132 n.1 (10th Cir. 2004); United States v. Mitchell,
177 F.3d 236, 238 (4th Cir. 1999); United States v. Zerba, 21 F.3d 250, 252 (8th Cir. 1994);
United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir. 1992).
The Utah alien harboring statute is not limited to conduct that is intended to frustrate law
enforcement, and thus it essentially criminalizes mere cohabitation with an alien spouse or

- 20 -

partner who lacks legal status. The statute does not require that the partner or spouse be
convicted of a crime or be the subject of an arrest warrant. Rather, the Utah statute refers to a
person’s immigration status, a status that is not always easily determined or necessarily final.
See United States v. Arizona, 703 F. Supp. 2d 980, 1005 (D. Ariz. 2010) (with respect to Arizona
alien harboring law, finding that the determination of an alien’s legal status requires reference to
“the complicated scheme of determining removability,” which is further complicated by federal
officials’ power to, “under certain circumstances … cancel or suspend the removal of an alien,”
as well as by the fact that “[u]ltimately, immigration court judges and federal appeals court
judges determine whether an alien’s offense makes an alien removable”), aff’d, No. 10-16645,
2011 WL 134694 (9th Cir. Apr. 11, 2011).
Although the Utah statute also requires that a defendant act “knowingly, with the intent to
violate federal immigration law,”10 this requirement does not limit the reach of the Utah statute

10

Utah criminal law does not address what it means to act with “the intent to violate” a law.
See, e.g., State v. Wallace, 124 P.3d 259, 263 (Utah Ct. App. 2005) (Utah courts have held that
willfulness “does not require an intent to violate the law”) (internal quotation marks and citation
omitted), aff’d, 150 P.3d 540 (Utah 2006). The harboring provision of the Utah alien harboring
statute seems to require an “intent to violate” the federal alien harboring statute, 8 U.S.C. §
1324(a)(1)(A)(iii), or any other part of the federal immigration laws that a person offering
support or assistance to an undocumented alien might violate. The federal alien harboring statute
requires knowledge or reckless disregard of the fact that “an alien has come to, entered, or
remains in the United States in violation of law,” and reaches the essentially the same substantive
conduct as the Utah alien harboring statute. 8 U.S.C. § 1324(a)(1)(A)(iii). An “intent to violate”
that statute would seem to require an intent to provide the prohibited support with knowledge or
reckless disregard of the fact that the alien who would receive such support lacks legal
immigration status. An individual providing such assistance to his or her undocumented spouse
or partner would thus easily satisfy the “intent to violate federal immigration law” requirement.

- 21 -

to “conduct that demonstrates an intent to frustrate law enforcement.” Hill, 279 F.3d at 737. A
person providing support to an undocumented spouse or partner with no criminal record and who
is not subject to an arrest warrant can still be subject to prosecution under the Utah statute,
simply by virtue of his or her awareness of the spouse or partner’s immigration status.11
Support or physical assistance provided to a spouse or partner who lacks legal status is
not necessarily, or even likely, to be given with the intent to thwart law enforcement, especially
if there is no removal order or warrant with respect to the foreign spouse or partner. Cf. Hill 279
F.3d at 737 (“Harboring and accessory liability is limited to conduct intended to ‘prevent [the
fugitive’s] discovery or arrest,’ or ‘to hinder or prevent [the fugitive’s] apprehension, trial or
judgment.’”). To hold otherwise is to hold that one intends to frustrate law enforcement unless
he refuses to allow an undocumented person into his home—including a long-time partner whose
However, a provision related to the federal alien harboring statute contains an analogous
“in furtherance of” requirement. This provision criminalizes the transportation of an alien in
“knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the
United States in violation of law,” and the conduct must be “in furtherance of such violation of
law.” 8 U.S.C. § 1324(a)(1)(A)(ii). The Tenth Circuit has held that this “in furtherance of”
requirement “is sufficiently broad to encompass any person who acts . . . with knowledge or with
reckless disregard of the fact that the person transported is an illegal alien and that transportation
or movement of the alien will help, advance, or promote the alien’s illegal entry or continued
illegal presence in the United States.” United States v. Barajas-Chavez, 162 F.3d 1285, 1288
(10th Cir. 1999) (en banc). The Utah alien harboring statute’s “intent to violate federal
immigration law” requirement would thus likely be satisfied by the mere knowledge that the
support or assistance given to an undocumented alien will “help ... the alien’s ... continued illegal
presence in the United States.” Id.
11

Similarly, the statute’s reference to concealment, harboring, or sheltering from detection
in “a building or means of transportation for commercial advantage or private financial gain”
does nothing to prevent the statute from infringing upon constitutionally protected behavior,
because that scenario is offered as an example of conduct that violates the statute, and not a
limitation on the reach of the statute. Even if the “commercial advantage or private financial
gain” provision were interpreted as an element of the harboring provision that applies to all
harboring activities, the provision would still fail to limit the reach of the statute to conduct
meant to evade law enforcement. A person cohabiting with an undocumented spouse or partner
can easily be interpreted to receive an economic benefit from the presence of that spouse or
partner, particularly if the couple shares finances.

- 22 -

immigration status has changed. See supra pp. 6-7. Such a position conflicts with the reasoning
in Hill, which relied on affirmative acts specifically intended to frustrate law enforcement in
determining that the defendant’s convictions for harboring a fugitive and being an accessoryafter-the-fact were constitutional. See Hill, 279 F.3d at 737 (noting that defendant had provided
material support to spouse while he was a fugitive in Mexico).
Lesbian and gay couples whose cohabitation would fall within the ambit of the Utah
statute are especially vulnerable to prosecution, because federal law currently prevents an alien
spouse from gaining legal permanent residence or citizenship through his or her spouse. The
prohibited conduct thus results from the lack of a legal mechanism to adjust the foreign spouse or
partner’s immigration status to lawful permanent residence, rather than any intent to frustrate law
enforcement. The provision of support or physical assistance to one’s lesbian or gay spouse or
partner therefore cannot reasonably be characterized as displaying an intent to frustrate law
enforcement, and the Utah alien harboring statute as applied to an individual whose lesbian or
gay spouse or partner lacks legal status thus infringes upon constitutionally protected conduct.

D.

Utah Lacks A Compelling Interest In Enforcing Section 76-10-2901(2)(b)
Absent Defendant’s Intent To Frustrate Law Enforcement

Because enforcement of Section 76-10-2901(2)(b) infringes upon fundamental rights of
privacy, association, and ongoing family relations, it is unconstitutional except in those cases in
which Utah can demonstrate that (1) it has a compelling state interest in enforcing Section 76-10-

- 23 -

2901(2)(b), and (2) the statute is narrowly tailored to achieve that state interest.12 See, e.g., Reno
v. Flores, 507 U.S. 292, 301-02 (1993) (recognizing that substantive due process “forbids the
government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is
provided, unless the infringement is narrowly tailored to serve a compelling state interest”).
Section 76-10-2901(2)(b) fails this test: Where the defendant does not act with an intent to
frustrate law enforcement, the State has no compelling interest in prosecution. Utah’s stated
interest in enacting HB 497—to create what Governor Herbert dubbed the “Utah solution for
immigration reform”13 in light of the perceived “[a]bsen[ce of] any meaningful leadership from
the federal government on this issue”14—is not compelling because while fashioning a “solution
for immigration reform” is a potentially vindicable interest of the federal government, without
more, the issue has no readily ascertainable effect on the public health, safety, or general welfare
of citizens of Utah, cf. Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (“all … laws and
regulations, must find their justification in some aspect of the police power, asserted for the
public welfare”), let alone a substantial effect sufficient to justify infringement of a fundamental
right. To be sure, Utah may argue that anyone who comes to or remains in the United States in
12

The right of intimate association, including cohabitation, is a fundamental right subject to
strict scrutiny. See supra at Part I; Washington v. Glucksberg, 521 U.S. 702, 728 (1997)
(reviewing Court’s history of substantive due process review and observing that strict scrutiny is
appropriate standard for examining state action that interferes with the exercise of rights that are
deeply rooted in “the traditions and conscience of our people” such as the right to “the sanctity of
the family”); cf. also Lawrence v. Texas, 539 U.S. 558 (2003); Moore v. City of East Cleveland,
431 U.S. 494 (1977).
13

News Release, Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011),
available at http://www.utah.gov/governor/news_media/article.html?article=4435.
14

News Release, Governor Herbert Issues Statement on Illegal Immigration Reform (Aug.
13, 2010), available at http://www.utah.gov/governor/news_media/article.html?article=3368.
During the legislative debate, Senator Dayton stated, “What we have in this bill are federal laws
put into state statutes so that we can enforce the federal laws since the federal government is
not.” Utah Senate Floor Debate on HB 497, Day 39, available at http://le.utah.gov/jsp/jdisplay/
billaudio.jsp?sess=2011GS&bill=hb0497s01&Headers=true.

- 24 -

violation of its laws is inherently dangerous and detrimental to the public welfare. The Court
should reject any such argument, just as it would invalidate any statute that purports to
criminalize the exercise of constitutional rights by persons who associate with members of a
disfavored group. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500 (1964) (holding statute
prohibiting members of communist party from applying for or using a passport was facially
unconstitutional).
Even assuming that Utah has a compelling interest in prosecuting persons who give
shelter to their undocumented family member, the harboring provision does not survive scrutiny
because it is not narrowly tailored to accomplish Utah’s objectives. To the contrary, the statute
is extremely broad and covers a wide variety of conduct implicating associational rights. And as
the other provisions enacted as part of HB 497 demonstrate—whether they are preempted by
federal law or otherwise unlawful is a separate question—illegal immigration can be deterred
without prosecuting family members who give ordinary familial support to their undocumented
partners.

CONCLUSION
The Utah alien harboring statute threatens members of all families, including binational
lesbian and gay couples, with criminal prosecution simply for engaging in the constitutionallyprotected conduct that is central to any loving relationship. For the reasons above, and for the
reasons given by Plaintiffs and their other amici, the Court should permanently enjoin
enforcement of all provisions of H.B. 497, including Section 76-10-2901(2)(b).

- 25 -

Dated May 31, 2011

Respectfully submitted,
Brian M. Barnard, USB No. 00215
UTAH CIVIL RIGHTS & LIBERTIES
FOUNDATION, INC.
214 East Fifth South Street
Salt Lake City, Utah 84111-3204
Telephone: [phone]
[e-mail]
Alan E. Schoenfeld (pro hac vice pending)
WILMER CUTLER PICKERING
HALE AND DORR LLP
399 Park Avenue
New York, New York 10022
Telephone: [phone]
[e-mail]
Attorneys for Amicus Curiae Immigration Equality

- 26 -

CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2011, I electronically transmitted the attached document
to the Clerk’s Office using the CM/ECF system for filing, and transmittal of a Notice of
Electronic Filing to the following ECF registrants:
UTAH ATTORNEY GENERAL’S OFFICE
Jerrold S. Jensen
[e-mail]
Thomas D. Roberts
[e-mail]
OFFICE (160-140857)
160 E 300 S
P.O. BOX 140857
SALT LAKE CITY, UT 84114-0857
[phone]
Attorneys for State Defendants Gary R. Herbert and Mark Shurtleff
ACLU OF UTAH
Darcy M. Goddard
[e-mail]
355 N 300 W STE 1
SALT LAKE CITY, UT 84103
[phone]
Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint
Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
NATIONAL IMMIGRATION LAW CENTER
Linton Joaquin
[e-mail]
Karen C. Tumlin
[e-mail]
Shiu-Ming Cheer
[e-mail]
Melissa S. Keaney
[e-mail]
3435 WILSHIRE BLVD STE 2850
LOS ANGELES, CA 90010
[phone]
Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint

Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
AMERICAN CIVIL LIBERTIES UNION FOUNDATION (NY)
Omar C. Jadwat
[e-mail]
Andre Segura
[e-mail]
Elora Mukherjee
[e-mail]
125 BROAD ST 18TH FL
NEW YORK, NY 10004
[phone]
Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint
Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
AMERICAN CIVIL LIBERTIES UNION FOUNDATION (SF)
Cecillia D. Wang
[e-mail]
Katherine Desormeau
[e-mail]
39 DRUMM ST
SAN FRANCISCO, CA 94111
[phone]
Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint
Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
Esperanza Granados
355 N 300 W
SALT LAKE CITY, UT 84103
801-521-9862 ext. 113
[e-mail]
Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint
Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
MUNGER TOLLES & OLSON LLP
Bradley S. Phillips
[e-mail]
355 S GRAND AVE STE 3500
LOS ANGELES, CA 90071-1560
[phone]

Attorneys for Plaintiffs Centro Civico Mexicano, Coalition of Utah Progressives, Latin
American Chamber of Commerce, Salt Lake City Brown Berets, Service Employees
International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint
Board, Alicia Cervantes, Eliana Larios, and Milton Ivan Salazar-Gomex
Dated May 31, 2011

Signed: /s/ Brian M. Barnard