Who should defend Utah ban on gay marriage?

The issue of who should represent the state on this issue has become increasingly heated, even though there is no immediate threat of a lawsuit. Opponents of the amendment have said they'll wait to see what happens to similar changes made to other states' constitutions.

Last week, members of the Senate GOP caucus met with Shurtleff behind closed doors in what was described as an emotional session and agreed to postpone a decision on hiring outside legal counsel until a lawsuit is filed.

Shurtleff had angered lawmakers by joining his Democratic opponent and coming out against the amendment earlier this year, before the election, even though he personally opposes gay marriage. His concern was with its second part, which forbids granting "the same or substantially equivalent legal effect" as marriage to other relationships.

The attorney general, a Republican, as are both Walker and Huntsman, said during the campaign to pass the amendment that it was "a bad law and should be rejected" because it "goes too far."

Buttars, who co-sponsored the amendment, said despite the governor's statement he still believes the state will end up hiring outside counsel to replace the attorney general's office if and when a lawsuit is filed over the amendment.

"Mark Shurtleff compromised his right. There has to be confidence in someone who is going to carry out that representation," Buttars said. "How could he have his heart in defending something that he had his heart in defeating?"

Buttars, who heads the appropriations subcommittee that oversees the attorney general's budget, said that "if he wants to take on the Legislature and we wanted to go outside, Mark Shurtleff would lose."

Awaiting a case

Duncan and Stewart said they have a keen interest in ensuring that Amendment 3 is interpreted narrowly, as both insisted before voters approved the measure.

Their announcement of the new Marriage Law Foundation came on the one-year anniversary of a Massachusetts Supreme Court decision that legalized same-sex marriage in that state.

Although opponents had suggested the second part of Amendment 3 could be broad-reaching and negatively impact unmarried couples, Duncan said, "We really do stand by our legal analysis during the campaign. It wasn't purely political. It was our reasoned judgment."

To that tune, Duncan said, the foundation will look at a recently filed motion that Amendment 3 makes it unconstitutional to enforce a court protective order against someone who's not a spouse.

Scott McCoy, who headed the Don't Amend Alliance opposing the marriage measure, said there are already several similar groups on both sides of the marriage issue offering advice around the country.

"I'm not real sure what the big deal is," McCoy said. "This is certainly not a first. . . . Here are two new people competing for that business with the theocratic right being the client."