West Jordan Republican Sen. Chris Buttars says cutting Shurtleff, also a Republican, out of the state's legal strategy is a "foregone conclusion." It's just a matter of who the state will hire to defend the law and how that attorney will be paid.

"It's the best money we could spend," Buttars said Tuesday.

Buttars says Shurtleff's vocal opposition to the amendment and concerns about its potential unintended consequences disqualifies him from representing the state.

"Well my goodness, he's been against it all the way through. Why should we let him defend it?" Buttars asked. "There isn't any of us who's going to let Mark Shurtleff now try to tell us he can represent it. He's not going to defend this."

Amendment 3, which 66 percent of Utah voters approved on Election Day, is written in two parts. The first sentence defines marriage as the legal union of a man and a woman. A second sentence prohibits the state from granting any other relationships "substantially equivalent" legal status to marriage. That language will be added to the State Constitution Jan. 1. Similar amendments in Louisiana and Nebraska have been challenged in federal court.

In August, Shurtleff, along with Democratic challenger Greg Skordas and Libertarian Andrew McCullough, issued a joint statement opposing the marriage amendment on grounds it would hurt unmarried heterosexual and homosexual Utah couples and their children and invite lengthy and expensive litigation. More than 20 state lawmakers responded with their own analysis of the amendment dismissing the three candidates' concerns.

At the time, Sen. Dave Thomas, R-South Weber, who wrote the analysis, said the attorney general would be able to defend the amendment if it passed.

And Murray Democratic Sen. Patrice Arent, a former assistant attorney general, said Shurtleff should be the one to decide if he will defend the amendment. His personal opposition to the amendment doesn't mean his office can't take the case, she said.

"I have faith the attorney general's office has the expertise to handle this case. It's a big office. They have lots of good attorneys," Arent said. "Lawyers don't necessarily agree with every position they have to take in court. What they try to do is the best job for their client."

But some amendment supporters have doubts.

Last week, Eagle Forum Director Gayle Ruzicka - one of Buttars' colleagues on a political issues committee organized to back the amendment - hinted at the idea that Shurtleff should be removed from the case. Shurtleff brushed Ruzicka's comments off and said he hoped lawmakers would not be "vindictive" about his election-year statements.

"If there are legislators who are concerned, I will sit down with them and convince them that this office has the ability and the dedication to do this job," Shurtleff said at the time. "I've opposed matters that have then become law and then zealously defended them."

But Shurtleff, who could not be reached for comment Tuesday, may have been too optimistic. Buttars is Senate chairman of the Executive Offices Appropriations Subcommittee that sets Shurtleff's budget - $18.5 million this year. Legislators could simply slice into the attorney general's office budget to pay for outside counsel.

Lawmakers have forced Shurtleff to step away from other issues. After he warned that 2003 legislation blocking payroll deduction of public employee political donations to unions could be unconstitutional, lawmakers pressured him to hire an outside attorney. That case has cost taxpayers about $1 million in legal fees and settlement costs so far.

Although Buttars insists the legal bill for defending the controversial amendment will be put to good use, subcommittee member Rep. Brad King, D-Price, isn't so sure.

"I don't ever think that taxpayer money is best used in paying attorneys fees," he said.