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Why is Utah's hired gun fighting gay marriage? His Mormonism

Published January 31, 2014 9:30 am

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In an email purportedly sent to his colleagues, Gene Schaerr made it clear why he was leaving his lucrative post as a partner at a prestigious Washington, D.C., law firm to defend Utah's laws barring same-sex marriage: his Mormon faith.

The leaked email was first posted by Elie Mystal on the Above The Law blog. In it, Schaerr said he was taking a temporary position with the Utah attorney general's office.

"I have accepted that position so that I can fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides," Schaerr said in the Jan. 17 email to co-workers at Winston & Strawn.

Then, quoting from the Bible, Schaerr said he left with confidence that "all things work together for good to them that love God" and invoked a blessing on the firm and his colleagues.

Mystal's reaction was "whatever."

"Some people's God calls them to help the poor or feed the hungry or sue for peace," he wrote. "Other people's God gets bent out of shape when loving gay or lesbian couples call themselves 'married.' ... People are (allegedly) called, by their faiths, to do all sorts of things."

But Mystal did question the appropriateness of the email.

"You can't send out firm-wide emails wishing Jews a 'Merry Christmas' and hoping that they accept Jesus Christ as the one true savior over the holidays," he wrote. " ... It's only with gay people where Bible-based inequality is still professionally respected as a difference of opinion. But maybe that's changing?"

The Human Rights Campaign (HRC) took umbrage with Schaerr for citing his personal religious beliefs as the primary reason for taking on the case.

"It's alarming that the reason Gene Schaerr gives for taking this position has nothing to do with the U.S. Constitution or the legal issues at play," Fred Sainz, HRC's vice president of communications, said in a statement. "Schaerr's entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns — and that's wrong. When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine."

Utah, Sainz noted, did not raise any religious-freedom arguments before U.S. District Court Judge Robert J. Shelby, who ruled Dec. 20 that Amendment 3's ban on same-sex marriage was unconstitutional.

"It's fair to question," Sainz said, "whether all of the arguments they have made are just an elaborate front for some other agenda."

Utah Attorney General Sean Reyes issued a statement Wednesday night that said religious views were never a factor in hiring Schaerr.

"Mr. Schaerr was hired because he was the most qualified applicant and gives us the best chance to win," Reyes said. "Any intimation that he was hired for reasons other than his qualifications, his understanding of the Constitution and his mastery of the legal issues in this case are offensive and detract from the civility this case merits."

Reyes announced Jan. 16 that Schaerr, a Utah native and graduate of Brigham Young University, would lead the legal team defending Amendment 3's ban on same-sex marriage. A federal judge ruled Dec. 20 the law was unconstitutional.

The state is paying Schaerr $200,000 to guide an appeal through the 10th U.S. Circuit Court.

Paul Mero, president of the conservative Sutherland Institute, said HRC's reaction "shows how insensitive HRC is to anything having to do with faith and family."

"Their worldly paradigm is so foreign to what we are trying to do in defending Utah's marriage law," Mero said. "That someone would resign a good job to take on a great cause isn't shocking to me, but I guess it's shocking to HRC. I just don't see the separation of church and state as meaning an individual has to give up every ounce of faith and freedom they believe in to somehow entertain a secular idea that the law is such and such."

Mero disclosed last week that Schaerr also has been hired as an institute fellow who will write policy papers for the Salt Lake City-based think tank. Mero wouldn't disclose what role the institute played in Schaerr's selection but said he was the "right guy" for the job, one who has "traditional marriage and the natural family" as part of his DNA.

Steve Owens, a former Utah State Bar president and Ethics Advisory Committee member, said Schaerr was free to "resign for whatever reason he wants or no reason."

His email "sheds light on his personal motives," said Owens, who is in private practice with the firm Epperson & Owens.

"Still, as I see it, it is not unethical for a lawyer to have a personal religious motivation to represent his or her client's position," Owens said. "However, it may make it harder for the attorney to be objective."

Attorney Paul C. Burke, who represented the Utah Pride Center when it filed an amicus brief at the U.S. Supreme Court in the Defense of Marriage Act and Proposition 8 cases, said it was laudable when an attorney is willing to make professional sacrifices because of conscience, personal conviction, or sincerely held religious beliefs.

But Burke lamented Schaerr's conflation of religious belief with civil law.

"In our pluralistic country, every American citizen has the right to hold religious beliefs of the person's own choosing," Burke said. "What the U.S. Constitution forbids is the conversion of any religious beliefs held by any person or sect into laws that would discriminate and deprive any group of fellow citizens of their fundamental rights."

brooke@sltrib.com

Twitter: @Brooke4Trib