The move by state leaders this week to petition the U.S. Supreme Court for a hearing on Judge Robert Shelby’s ruling that Utah’s ban of same sex marriage is unconstitutional revises an old argument that plagued past attorneys general.
Just what is the worth of spending hundreds of thousands of dollars or even millions on private attorneys contracting with the state and what, if any, personal biases the A.G. in office might harbor that would influence the decision to litigate ad nauseam?
Republican Attorney General Sean Reyes’ decision to hire attorney Gene Schaerr as the lead attorney in the appeals of Shelby’s ruling raises a few questions.
Schaerr also has been made a fellow at the conservative Sutherland Institute, a moral crusading organization that has been one of the leading voices against legalizing same-sex marriages and distributed a treatise defending the "natural family" being defined as a union between one man and one woman.
Schaerr, who said in a memo to his colleagues at the Washington, D.C., law firm he left to take the Utah case that he was thrilled to fulfill his "religious and family duty," joined with Reyes in a closed Senate Republican caucus during the legislative session to dissuade the senators from considering legislation to protect gays and lesbians from housing and employment discrimination.
Schaerr was referring in the memo to his membership in the LDS Church, which has long held a strong position against same-sex marriages.
The state has already paid Schaerr and the other two attorneys on his team $300,000 — $200,000 going just to Schaerr — and will spend up to $300,000 more on the appeal to the U.S. Supreme Court.
Some attorneys in Utah have questioned the wisdom of Utah taking the lead in the appellate trail to the Supreme Court, given the cost. Piggybacking on another state’s lawsuit would be much cheaper, they say.
But the state’s petition to the Supreme Court argues an expeditious decision is critical in order to stop the confusion that has occurred in Utah since Shelby’s ruling.
Whether the decision to hire Schaerr has anything to do with his Mormon faith and his connections to the conservative Sutherland Institute is unclear. Reyes has said it was not a factor.
But if the A.G.’s office is playing to the sentiments of the state’s dominant church, it’s not the first time.
Former Utah Attorney General David Wilkinson, the son of Ernest Wilkinson, a one-time president of the LDS Church-owned Brigham Young University, spent close to $2 million hiring counsel to appeal federal courts’ rulings that the state’s restrictive Cable TV law was unconstitutional.
Wilkinson justified his continuous appeals, hoping to get the case to the Supreme Court, because he believed the court was becoming more conservative and would uphold a state’s right to regulate the content of subscription television programming.
Again, the actions were consistent with LDS Church concerns about the R-rated nature of many of the movies aired on cable TV.
The case never made it to the Supreme Court, and Wilkinson lost his bid for re-election.
Then there was the time the Utah Legislature enlisted private attorney Mary Ann Wood, an anti-abortion activist supported by right-wing groups such as the Eagle Forum, to file a brief on its behalf in the federal appeals over Utah’s restrictive anti-abortion laws. The move was seen as a snub to then-Attorney General Jan Graham, a Democrat who conservative legislators didn’t trust to fight the abortion law appeals aggressively enough.
And later, then-Utah Gov. Mike Leavitt signed on to a friend of the court brief in a lawsuit over same-sex civil unions in Vermont that was prepared by a team led by BYU professor Lynn Wardle. That, again, was a snub to Graham, who wanted the amicus brief handled by her office and based solely on legal issues.
The Wardle brief was filled with religious references and biblical passages that Graham did not deem to be an adequate legal brief and was an embarrassment to the state.
It seems the more things change, the more they stay the same.
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