A lesbian couple is asking a federal judge to dismiss a class-action lawsuit against the state and the LDS Church that lists their names without permission.
Amy N. Fowler and Pidge Winburn married in Utah on Dec. 23, days after U.S. District Court Judge Robert J. Shelby found the state’s ban on same-sex marriage unconstitutional. The newlyweds were featured in a front page story in The Salt Lake Tribune on Dec. 26.
A day later, Salt Lake attorney E. Craig Smay filed a $10 million civil lawsuit in U.S. District Court, listing Winburn and Fowler as plaintiffs. The lawsuit alleged the state and Church of Jesus Christ of Latter-day Saints conspired to deprive the couple and hundreds of others of freedom of religion and the right to marry.
Fowler, 35, and Winburn, 37, learned of the lawsuit last week after it was filed.
"It was a shock to us," Fowler told The Tribune, and turned "something happy and joyous into something else neither of us have any interest in."
Fowler, an attorney, says in an affidavit filed Tuesday that neither she nor her wife filed or authorized the complaint. And neither "has ever met, spoken with, heard from, or in any way communicated with Mr. Smay."
Fowler said she believes Smay came up with their names from the Tribune article.
"It feels in a weird way like an invasion of privacy," she said.
Fowler left several telephone and email messages for Smay but so far he has not responded.
In an email sent to Smay on Monday, Fowler asked him to immediately remove their names from the complaint and said she plans to file a complaint with the Utah State Bar about his unauthorized use of their names — a step taken reluctantly given the professional courtesy attorneys typically extend to each other.
But Smay’s lack of response left her no other option, she said.
"The fact I’ve called several times and emailed and can’t reach him is upsetting," she said.
Fowler said it was fortunate that as an attorney she knew how to take immediate action to get their names removed from the complaint, which might have been more difficult for someone else.
Shelby specifically addressed the issue of religious freedom in his Dec. 20 ruling, saying nothing in the decision mandated any change in any faith’s practice or policy regarding same-sex marriage.
Smay graduated from the University of Utah law school in 1970. He was admitted to the bar in Utah about two years later.
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