This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Hasn't the Utah Legislature driven off this cliff before?
After they passed a ban of most elective abortions in 1991, Republican lawmakers decided that because Attorney General Jan Graham, a Democrat, was pro-choice, she could not be trusted to defend the new abortion law in court.
At considerable public expense and after much partisan rancor, the Republicans hired outside counsel Mary Anne Wood, who had pro-life bona fides, to defend the law. The state lost the battle anyway, and the law was declared unconstitutional. The six-year battle cost Utah taxpayers about $1.2 million.
Now comes Sen. Chris Buttars, R-West Jordan, opining that Attorney General Mark Shurtleff is disqualified to defend Utah's newly minted amendment to the state constitution banning gay marriage. Why? Because, during the campaign, Shurtleff urged voters not to pass the amendment because its second part could deprive some Utahns of basic rights.
Shurtleff opposes gay marriage and supported the first part of the amendment, which reads, “Marriage consists only of the legal union between a man and a woman.” But, like many other lawyers, he believed the second part is bad law.
That second part says, “No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
Shurtleff argued that this language could strip away rights of parents and children in families created by common-law marriages and other relationships in cases of death, disability or breakups. He said it could affect protective orders, tax benefits and inheritance rights, hospital visits and medical decisions during emergencies, health insurance from private employers and powers of attorney, wills, property arrangements and joint bank accounts.
We shared the A.G.'s concerns.
On Nov. 2, however, voters ignored Shurtleff's advice and passed the amendment overwhelmingly.
From the beginning, Shurtleff has said he would defend the amendment in court if it passed, and we believe he can.
Attorneys are professional advocates. Statements during an election campaign do not disqualify Shurtleff from mounting a spirited defense of the amendment.
But even that is beside the point, because Shurtleff is not the only attorney in the A.G.'s office. There are 211. Surely there is among them a highly qualified lawyer with no ties to Shurtleff's campaign statement who can competently and passionately represent the people of the state in the defense of their new constitutional amendment.
Without, by the way, costing those same people a small fortune in legal fees for outside counsel.