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Two all-star legal teams in the fight over Utah's Amendment 3 await the call from the U.S. Supreme Court for the ultimate matchup in the battle over same-sex marriage.
On Sept. 29, the nine justices are set to review seven petitions from same-sex marriage cases in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin. An announcement is likely this fall, perhaps even in early October, with written briefing and oral arguments to follow before a final decision by the Supreme Court in June 2015.
No one outside the Supreme Court knows exactly how the justices will decide which case or cases to take. But Utah's case stands out not only because it was the first to reach the Supreme Court, but also because of the quality of legal representation on both sides of the case.
Sean Reyes came to office as the most experienced litigator to serve as Utah Attorney General in more than a generation, having earned a partnership at one of the state's most prominent law firms. One of his first decisions in office was to hire Gene Schaerr, a veteran appellate lawyer, to lead the state's appeal of U.S. District Judge Robert J. Shelby's decision striking down Amendment 3.
To accept this calling, Schaerr resigned his partnership at the national law firm of Winston & Strawn, which apparently had no appetite to take the case itself. Schaerr explained to his former colleagues that his departure was necessary to "fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in a state where my church is headquartered and where most of my family resides."
Schaerr is being assisted by former Michigan Solicitor General John Bursch and Monte Stewart, a former U.S. Attorney in Nevada who was one of the sponsors of Amendment 3.
Across the aisle is a veritable legal dream team of the gay rights movement. The case against Amendment 3 was launched by the Salt Lake City law firm of Magleby Greenwood, a plucky litigation boutique that has built a well-rounded team of legal experts to support its challenge to Utah's ban.
Lead attorney Peggy Tomsic shepherded the case through the district court proceedings to obtain Judge Shelby's historic ruling last December, paving the way for more than 1,300 Utah couples to marry before the U.S. Supreme Court issued a stay. Tomsic's strong performance in the face of tough questioning at the 10th Circuit Court of Appeals has been widely praised, as she persuaded the 10th Circuit to affirm Judge's Shelby's decision.
The National Center for Lesbian Rights joined the plaintiffs' legal team on appeal. Executive Director Kate Kendell, a graduate of the University of Utah's S.J. Quinney College of Law and the ACLU of Utah's first staff attorney, has both deep roots in Utah and more than two decades of national leadership in the gay rights movement.
NCLR's appellate team includes Legal Director Shannon Price Minter, who successfully argued for marriage rights before the California Supreme Court on two occasions; Constitutional Litigation Director David Codell, who clerked for Justice Ginsburg and has also served as the legal director of the Williams Institute; and Christopher Stoll, a Harvard Law graduate and veteran appellate lawyer.
Once the case moved to the Supreme Court, former Acting Solicitor General Neal Katyal joined the plaintiffs' team. Katyal served as the Obama administration's lawyer before the nation's highest court and now practices at Hogan Lovells, Chief Justice Roberts' former firm.
The final and most recent addition to the plaintiffs' legal team is perhaps the most historic. Mary Bonauto, the Civil Rights Project Director at the Gay & Lesbian Advocates & Defenders, is widely hailed as the Thurgood Marshall of the gay rights movement. On Wednesday Bonauto received a "genius award" from the Mac-Arthur Foundation for her pioneering work on marriage equality.
For more than two decades, Bonauto has been a primary architect of the movement to achieve equal legal protections for same-sex couples, winning in Massachusetts the nation's first case to hold that gay couples must be permitted to marry, securing the first court of appeals decision striking down the federal Defense of Marriage Act, and coordinating a successful amicus strategy in last year's landmark Supreme Court case against DOMA.
Utah's case thus pits against each other some of the key strategists from competing movements, with one side seeking to enshrine "traditional marriage" into state constitutions and the other seeking to establish marriage equality for all Americans.
If the Supreme Court elects to hear Utah's appeal, both the Supreme Court and all Utahns can be confident in the caliber of legal representation presenting these divergent visions of our U.S. Constitution.
Paul C. Burke, Brett L. Tolman, and John W. Mackay led a bipartisan team of lawyers representing the Utah Pride Center to file an amicus brief with the U.S. Supreme Court in last year's marriage cases.