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Utah AG picks outside counsel in same-sex marriage fight

Published January 16, 2014 9:48 pm

10th Circuit Court • The state hired a BYU and Yale law school grad to help it argue the case against the repeal of Amendment 3.
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The Utah Attorney General's Office has hired Gene C. Schaerr to lead a team of attorneys in the state's defense of its constitutional amendment prohibiting same-sex marriage.

Attorney General Sean Reyes said Schaerr, a Utah native, is an "elite" appellate and Supreme Court expert and "understands our unique history and community." The pick also pleased one of Utah's most conservative think tanks.

Schaerr, a graduate of Brigham Young University and Yale law school, has handled more than 100 cases in federal and state appellate courts. He was a law clerk for U.S. Supreme Court Chief Justice Warren E. Burger and Justice Antonin Scalia, and spent two years as associate counsel to former President George H. W. Bush.

"Mr. Schaerr has spent a long and distinguished career as a leader at some of the world's largest law firms," Reyes said Thursday. "We are pleased that he is so eager to represent our state and that he would leave his firm so he can focus on this case exclusively."

According to a press release from the AG's Office, Schaerr had an 80 percent win rate in the 10th Circuit Court and a 75 percent win rate for dozens of federal appeals argued in the past five years.

Schaerr has agreed to offer his services at a discounted rate and will cap the fee arrangement at $200,000 for the 10th Circuit Court phase of the proceedings, the statement said. However, Schaerr also has been hired as a fellow on marriage and family law issues at the conservative Sutherland Institute.

Paul Mero, president of the Sutherland Institute, said, "We're very happy" about the state picking Schaerr. Mero would not go into details about what role the institute played in Schaerr's selection.

"All along, we've wanted the right counsel and the right strategy," Mero said. "He is the right guy for a variety of reasons. Defending traditional marriage and the natural family is part of his DNA."

Mero added, "that is where other attorneys have gone wrong for us."

While at the Sutherland Institute, Mero said Schaerr will create "key papers for us" on standards for how attorneys and lawmakers across the country can address these issues.

Also joining the team are John Bursch, a former solicitor general and partner at Warner Norcross & Judd in Michigan, and Monte Neil Stewart, a Boise, Idaho, attorney. Both have agreed to cap their fees for work in the appeal to the 10th Circuit Court at $50,000 each.

"After reviewing the proposals, we also saw that there are very qualified individuals who are willing to offer their services to support the case," Reyes said. "Because of this, we have built a dynamic team that Mr. Schaerr will lead, all for a fraction of the cost of their commercial rates and various costs."

Bursch has argued five cases before the Supreme Court in the past year alone, according to the press release.

Like Schaerr, Stewart also clerked for Justice Burger. Stewart led the state's successful effort to get a stay of Shelby's decision from the U.S. Supreme Court. Stewart and his firm, Stewart Taylor & Morris, successfully defended Nevada's laws limiting marriage to opposite-sex couples in district court; that case is currently on appeal to the 9th Circuit Court.

Reyes selected Schaerr from what was reportedly a pool of about a dozen applicants. At $300,000, the cost to the state, so far, will be far less than expected, Reyes said, particularly as staff attorneys are able to turn their attention to regularly assigned caseloads.

The state's deadline to file its first brief with the 10th Circuit Court of Appeals is Jan. 27, less than two weeks from now.

"Although we recognize that Kitchen v. Herbert is a potentially divisive case, it is one of national importance and warrants the best possible representation on both sides," Reyes said.

Attorneys for the plaintiffs who challenged Utah's same-sex marriage ban also are building a larger legal team for the 10th Circuit Court fight.

Peggy A. Tomsic and James E. Magleby are being joined by attorneys Kate Kendell and David Codell of the National Center for Lesbian Rights (NCLR). Kendell, a native Utahn, is the executive director of the NCLR, a graduate of the University of Utah law school and a former ACLU of Utah staff attorney.

Codell, a Harvard Law School graduate who clerked for Justice Ruth Bader Ginsburg, is a constitutional law expert. He most recently served as legal director of the Williams Institute, a think tank at the UCLA School of Law that focuses on sexual orientation and gender identity law and policy. Codell was lead counsel with NCLR and other organizations in a series of lawsuits that successfully upheld California's domestic partnership laws and in a 2008 California Supreme Court decision legalizing same-sex marriage.

On Dec. 20, U.S. District Court Judge Robert J. Shelby ruled that Amendment 3, passed by 66 percent of voters who participated in the 2004 general election, was unconstitutional because it violated due process and equal protect rights of same-sex couples. Between that ruling and Jan. 6, when the U.S. Supreme Court stayed Shelby's order, more than 1,300 Utah couples received marriage licenses.

All briefs from both sides are due to the 10th Circuit Court by the end of February. Oral arguments are likely to take place by summer.

On Tuesday, a federal judge in Oklahoma overturned that state's constitutional amendment barring same-sex marriage — which was approved by 76 percent of Oklahomans who voted in the 2004 election. Like Utah's amendment, it also barred recognition of licenses issued by states where same-sex marriage is legal and other relationships, such as civil unions and domestic partnerships.

Oklahoma Attorney General E. Scott Pruitt called the decision "troubling." Pruit said Oklahoma plans to watch what happens to the Utah appeal rather than wage its own battle defending its law.

"There is a case involving the State of Utah currently pending before the 10th Circuit that is identical to the case in Tulsa," Pruitt said in a statement. "The issue most likely will end up at the U.S. Supreme Court and the outcome will dictate whether Oklahoma's constitutional provision will be upheld."

brooke@sltrib.com