The lawyers Utah tapped to defend a constitutional ban on same-sex marriage are more than hired hands selected for their experience and expertise.
They believe in the ethos of "traditional marriage." They support the rights of a state and its residents to have autonomy over legal unions. And they trust in Utah’s claim that society will suffer should same-sex marriage be permanently legalized.
None of the three hired attorneys has spoken publicly about his motivations for defending Amendment 3 since each was appointed in January by Sean Reyes, Utah’s new attorney general.
Lead counsel Gene Schaerr, former Michigan Solicitor General John Bursch and well-known Idaho attorney Monte Neil Stewart declined to comment for this article, citing Thursday’s fast-approaching arguments before the 10th U.S. Circuit Court of Appeals in Denver.
But through essays, letters and actions, all have left little question as to their commitment to the state’s cause.
Schaerr is a Utah native and member of The Church of Jesus Christ of Latter-day Saints. He has been hired as a fellow by the Sutherland Institute and was recently criticized for his involvement in killing SB100, a statewide nondiscrimination bill, during Utah’s legislative session.
Days after his appointment as Utah’s lead attorney on the marriage lawsuit, an email Schaerr purportedly sent to his colleagues at a prestigious Washington, D.C., law firm was leaked detailing his reasons for taking the job.
"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 wrote in the Jan. 17 email to co-workers at Winston & Strawn.
Reyes has said Schaerr’s Mormon faith was not a factor in the state’s decision to hire the prominent attorney, citing Schaerr’s 80 percent win rate at the 10th Circuit.
But others, including the Human Rights Campaign and Democratic state Sen. Jim Dabakis, have lambasted Schaerr for citing his religious views as motivation in this case and questioned his ability to represent the best interest of all Utahns.
Stewart, who, along with his Boise-based firm, Stewart Taylor & Morris, successfully defended Nevada’s laws limiting marriage to opposite-sex couples in district court and has written academic papers, essays and arguments detailing why he believes it is essential for society that "marriage" remain between a man and a woman.
In these writings, Stewart does not refer to gay and lesbian unions as "same-sex marriage," but instead "genderless marriage," meaning the gender of those entering such marriages would be legally irrelevant.
In an essay titled "Marriage Facts," published in 2008 in the Harvard Journal of Law and Public Policy, Stewart argues that marriage is a "vital social institution" that promotes "at least six valuable social goods."
Among those benefits to man-woman marriage, Stewart cites the "right of a child to know and be raised by her biological parents," society’s "most effective means of bridging the male-female divide," the long-term benefits of turning men into husbands and fathers and women into wives and mothers and the "social and official endorsement" of heterosexual intercourse.
"When the social institution of marriage disappears, what remains is a motley crew of lifestyles," Stewart wrote. "A lifestyle without institutional context is like Monopoly money: It resembles true currency but lacks the essential shared meaning that provides its value."
Bursch wrote a legal opinion to the U.S. Supreme Court in favor of opposite-sex marriage that was considered in the hearing of Hollingsworth v. Perry — the case that essentially set aside California’s Proposition 8 and allowed same-sex marriages to resume in the Golden State.
In his brief, Bursch asserted that "the traditional family is the ideal setting in which to raise children" and "other relationships do not share the unique characteristics of traditional marriage."
All three lawyers will appear before a panel of 10th Circuit judges Thursday to support the state’s appeal of U.S. District Judge Robert J. Shelby’s decision tossing out Utah’s Amendment 3 ban on same-sex marriage. firstname.lastname@example.org
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