Last year they could have been deciding the case, but now former Utah Supreme Court justices Deno Himonas and Thomas Lee are on opposite sides of a lawsuit over Utah’s ban on transgender athletes.
Add former Chief Justice Christine Durham and you have, likely for the first time (at least in recent memory), three retired justices squaring off.
The legal challenge is being brought on behalf of two young girls, identified in the lawsuit by the pseudonyms Jenny Roe, a 16-year-old who wants to play volleyball with her high school team, and 13-year-old Jane Noe, who hopes to join her swim team. They would be barred from competing in high school sports under a law passed earlier this year prohibiting transgender girls from competing with women’s teams.
“Parents want their kids to be happy and to be surrounded by people who love and nurture them,” the mother of one of the girls said when the civil rights lawsuit was filed last month. “This law does the opposite — it tells my daughter that she doesn’t belong and that she is unworthy of having the same opportunities as other students at her school.”
Himonas and Durham argue in their briefs that the law violates both the Utah and United States constitutions and illegally discriminates against transgender girls (it does not impact transgender boys). They have asked the 3rd District Judge Keith Kelly to issue an injunction, blocking the ban while the litigation proceeds.
The two justices, however, will have to overcome their former peer on the bench. Lee joined the case last week as one of the lawyers defending the ban on behalf of the state. His opposition to the request for an injunction is due to be filed with the court on Wednesday.
Lee submitted his resignation from the court in January. It was initially supposed to take effect at the end of this month, but the timetable was subsequently moved up. Last week, Gov. Spencer Cox nominated Judge Jill Pohlman to replace Lee.
This month, Lee — the brother of U.S. Sen. Mike Lee and son of former U.S. Solicitor General Rex Lee — started his own firm with attorney John G. Nielsen, a former assistant solicitor at the Attorney General’s office. Nielsen is also representing the state in the case.
Lee, who clerked for U.S. Supreme Justice Court Clarence Thomas and (along with his senator brother) was once on former President Donald Trump’s shortlist for a Supreme Court vacancy, has a judicial philosophy rooted in “originalism” — an attempt to interpret the original intent of constitutional language.
The state is making similar “originalism” arguments in a different case as it defends Utah’s trigger law, which would ban almost all abortions. This week, Judge Andrew Stone blocked that law from taking effect.
Himonas left the court on March 1 and opened the Salt Lake City office of Wilson Sonsini law firm, a tech-focused firm with offices in 10 U.S. cities and four foreign countries. He spent 11 years as a trial court judge and seven on the high court where he spearheaded the creation of Utah’s legal sandbox, an effort to use technology to help average Utahns get access to certain legal services.
One of his first hires at the new firm was Durham, who became Utah’s first female judge in 1978 and its first Supreme Court justice in 1982 after being nominated by former Gov. Scott Matheson. She, too, was shortlisted for a U.S. Supreme Court vacancy by President Bill Clinton and served as Utah’s chief justice from 2002 to 2012.
Since retiring in 2017, she has represented the family of murdered University of Utah athlete Jill McCluskey and served as a member of the state’s Independent Redistricting Commission.
And these are just the lawyers on the case who you have to call “Justice.” All told, there are 15 attorneys on the case representing the plaintiffs, the State of Utah, the American Civil Liberties Union and the National Center for Lesbian Rights, all with impressive resumés and credentials of their own.
It is a massive amount of legal firepower, all being brought to bear simply because one girl wanted to play volleyball, another wanted to swim and Utah’s Republican legislators simply couldn’t stomach the thought of these girls doing what they love.
Where’s the “justice” in that?