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In Utah, new lawyers join marriage equality litigation on both sides, and new tax policy for married same-sex couples is put in place for now

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A few major developments took place in Utah yesterday, and they will impact the Tenth Circuit appeal and future litigation in the state over the legality of existing same-sex marriages performed there.

First, the Utah Tax Commission issued a notice on its policy toward existing same-sex marriages. Because the district court’s decision declaring the state’s same-sex marriage ban unconstitutional wasn’t put on hold until after December 31, 2013, same-sex couples who can file a joint federal tax return will be able to file a joint state tax return. The new policy applies to same-sex couples married in the state as well as those living in Utah who married outside the state. The policy only applies for 2013 – future tax policy will have to be decided on after the federal courts dispense with the Tenth Circuit appeal.

In another development, Utah’s attorney general has finally announced the legal team who will step in to handle the same-sex marriage litigation. (The state’s opening brief at the Tenth Circuit is due in 10 days.) Appellate lawyer Gene Schaerr is leading the new legal team, and he’ll be assisted by Monte Neil Stewart, who wrote the state’s request for a stay in the Supreme Court; Michigan’s former solicitor general, John Bursch, who recently argued in favor of a Michigan constitutional amendment banning affirmative action before the Supreme Court (Schuette v. BAMN) will also be on the team. Stewart and Bursch are capping their legal fees at $50,000 each, and Schaerr will get $200,000.

EqualityOnTrial has previously reported that the National Center for Lesbian Rights (NCLR) is joining the plaintiffs in the Kitchen appeal. In recent days, constitutional law expert David Codell has joined NCLR, and has filed a notice of appearance in the Kitchen appeal, meaning he will be part of the litigation at the Tenth Circuit. Codell worked on In Re Marriage Cases in the California Supreme Court, the case that held California’s constitution (pew-Prop 8) required marriage equality. He also helped defend the ban on so-called “ex-gay” therapy.

The two legal teams will face each other at the Tenth Circuit Court of Appeals within months, probably in March.

Thanks to Kathleen Perrin for these filings

For more information on Kitchen v. Herbert from The Civil Rights Litigation Clearinghouse, click here.

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  • 1. Jim  |  January 17, 2014 at 10:46 am

    Schaerr has resigned from the law firm of Winston & Strawn. W&S likes to talk up W&S's 100% perfect score from HRC. I guess W&S didn't want the bad publicity that would come from employing a 100% anti-gay, pro-discrimination attorney, so Schaerr is gone.

    [I posted this in other EoT string; reposting here.]

  • 2. RAJ  |  January 17, 2014 at 10:49 am

    Hmmm, didn't Paul Clement resign from the law firm he was working for fairly soon after he took on BLAG?

  • 3. allen  |  January 17, 2014 at 12:10 pm

    I remember the resignation came AFTER the announcement caused a huge outcry against the firm.

  • 4. Equality On TrialState of&hellip  |  January 17, 2014 at 12:14 pm

    […] The request was anticipated by some, since the opening brief is due in ten days, and the state only hired its outside counsel for the marriage litigation yesterday. The appeal is on a very fast track in the […]

  • 5. Rick O.  |  January 17, 2014 at 1:17 pm

    Hmm… Schaerr, Stewart, and Bursch. I suppose I should be relieved defendant's counsel has all the diversity of a Klan meeting.
    Checked with Colorado Attorney General's office. The state has a constitutional marriage ban, and a Republican AG, but so far no brief supporting Utah has been filed with the 10th Circuit, and I got the distinct impression there are no plans to do so.

  • 6. RAJ  |  January 17, 2014 at 5:19 pm

    Interesting side note — the name Schaerr, (recently named outside counsel for the Utah same-sex marriage appeal) might ring a bell to Maryland and DC residents. His wife was involved in this effort:

    Mormons working to overturn Maryland marriage law

    "Members of the Mormon Church in Maryland are working to overturn the state’s recently passed marriage equality law, according to an email obtained by the Washington Blade."


    "The email says the “important effort” is being led by Martha Schaerr, an LDS member who’s organizing signature collection within Montgomery County and within the church. "

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