SALT LAKE CITY — A Washington, D.C., lawyer with Utah ties and vast constitutional and appellate law experience will handle the state's case against same-sex marriage in an unconventional arrangement involving a conservative political think tank.
Attorney General Sean Reyes named Gene C. Schaerr as lead outside counsel among three lawyers the state hired Thursday to make Utah's case in the 10th Circuit Court of Appeals.
"Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community," Reyes said.
Also Thursday, the Utah State Tax Commission decided that married same-sex couples in Utah may file joint state income tax returns — a change from an earlier state position that would not have allowed them to file as married.
Schaerr's hiring ended Reyes' two-week search for outside counsel, which included an extra week due to a lack of responses. A dozen applicants ultimately vied for the job.
The Sutherland Institute, a conservative public policy think tank in Salt Lake City, was heavily involved in the decision. Executive director Paul Mero offered to foot the bill for the "right counsel and the right strategy."
After the hiring, Mero said Schaerr is "our guy."
"He meets the criteria that Sutherland Institute has been insisting on. I think he has the capability to provide a deep, rich, meaningful case before the 10th Circuit, and a winning case," he said.
Schaerr will cap his fees to the state at $200,000 for the appeal, according to the attorney general's office. But Sutherland sweetened the deal by making him a paid fellow at the institute.
"It was one way that we were able to make sure that Mr. Schaerr had the ability to accept this position with the state in defending Amendment 3," Mero said.
Schaerr will write papers about family and marriage law for Sutherland, he said. Schaerr also is quitting his job as a partner at Winston & Strawn in Washington, D.C., to work on the state's case.
"We are pleased that he is so eager to represent our state and that he would leave his firm so he can focus on this case exclusively," Reyes said in a prepared statement.
Utah voters approved a state constitutional amendment in 2004 defining marriage as between a man and a woman. U.S. District Judge Robert Shelby ruled Dec. 20 that the law violates the equal protection clause of the 14th Amendment to the U.S. Constitution.
Same-sex couples married in Utah for 17 days until the U.S. Supreme Court halted the weddings pending the state's appeal to the 10th Circuit.
In addition to Schaerr, the state hired former Michigan Solicitor General John Bursch and Idaho attorney Monte Neil Stewart for the appeal. Stewart helped lead the campaign for Amendment 3 in 2004. Both agreed to cap their fees at $50,000 for the appeal.
The lawyers, including two assistant attorneys general, will have 10 days to write the state's first arguments, which are due to the Denver-based appeals court on Jan. 27.
Schaerr earned an undergraduate degree at Brigham Young University and a law degree at Yale. He is a former law partner of the late Rex Lee, who served as U.S. solicitor general and is the father of Sen. Mike Lee, R-Utah. He also worked two years as associate counsel to President George H.W. Bush.
Schaerr has an 80 percent win rate in the 10th Circuit and a 75 percent win rate for dozens of federal appeals in the past five years, according to the attorney general's office.
Reyes said his office has a duty to defend state law.
"Although we recognize that Kitchen vs. Herbert is a potentially divisive case, it is one of national importance and warrants the best possible representation on both sides,” he said.
Earlier Thursday, the State Tax Commission said that same-sex couples who were married between Dec. 20, 2013, and Dec. 31, 2013, or whose marriages were solemnized in other states before Dec. 31, 2013, may file individual state tax returns as "married."
Tax commissioners met with the attorney general's office in the past week and said they "feel this is the best way to go," said Charlie Roberts, tax commission spokesman.
The decision runs counter to a governor's office directive last week putting recognition of same-sex marriages in Utah on hold after the U.S. Supreme Court granted a stay to Shelby's ruling.
The memo to members of Gov. Gary Herbert's cabinet, based on an opinion from Reyes, said the original laws governing marriage in Utah return to effect pending final resolution by the courts.
"It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages," Herbert's chief of staff, Derek Miller, wrote in the memo.
Roberts said the tax commission "fully respects" the governor's position but believes for the 2013 tax year it must abide by Shelby's ruling.
"Where they were legally married and authorized to be married, we feel because of that they can file as married on their state returns," he said.
The tax commission has no mechanism to track a tax filer's gender, Roberts said, adding that that isn't the reason for the decision, but it was a factor.
Peggy Tomsic, an attorney for the three gay and lesbian couples who sued Utah over its same-sex marriage ban, applauded the commission's decision.
"These couples have willingly assumed the mutual responsibilities and obligations of marriage, and they deserve the same certainty, stability and protection as other married couples," she said.
Contributing: Peter Samore
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