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Attorney General Sean Reyes says he has a duty to defend Utah's ban on same-sex marriage, his personal and legal opinion notwithstanding. His challenger, Charles Stormont, says it is a foolhardy waste of hundreds of thousands of dollars in taxpayer money arguing for a law that is clearly unconstitutional.
Underlying the marriage debate in Utah is a deeper philosophical rift about the role of the state's elected attorney: Should the attorney general exercise his or her discretion when it comes to deciding which cases to defend, or is there an obligation to take them on?
Carl Tobias, a law professor at the University of Richmond, said the philosophical divide is a fascinating question playing out in states across the country.
"You can probably defend either one," he said, but he tends to lean toward the attorney general exercising discretion on which laws to defend.
"If an attorney general, either at the federal level or at the state level believes legislation is unconstitutional, then you take an oath to the Constitution at the federal and state level," he said. "If you really believe, after you've done the legal analysis, it is unconstitutional, then I think you could argue you're violating your oath to uphold and defend the Constitution. But again, reasonable people can differ and will differ on this issue."
Reyes and Stormont definitely do. And the split cuts to the heart of how the candidates say they will discharge their duties, well beyond the gay marriage case now before the U.S. Supreme Court, to their approach on the defense of a challenge to Utah's ban on gay adoption and its anti-bigamy law, as well as whether the state will sue the federal government to demand control of millions of federal acres.
Sean Reyes • Reyes said his job is to defend the laws of the state, "some of which I agree with, some of which I don't, personally."
"Once laws have been passed, in my mind, the die has been cast. The people have spoken," the Republican officeholder said during a recent meeting with The Salt Lake Tribune editorial board. "Right or wrong, it's their job to elect legislators or it's their job, when they're voting on constitutional amendments, to make a good decision."
As he did in the private sector, Reyes said, he advised the governor and the Legislature on the prospects for prevailing in the defense of Amendment 3 which barred same-sex marriage but it's their decision to proceed, in that case or any other.
Asked if that means he would go to court to defend a law he viewed as patently unconstitutional and morally repugnant all the way to the U.S. Supreme Court, he said: "Yes. Or until the people change the law."
Charles Stormont • Stormont views the role of attorney general differently. In the case of Amendment 3, in particular, he says, he would simply refuse to go to court and defend a marriage ban he considers unconstitutional.
"As a lawyer, I would be obligated to tell [the governor and Legislature] this takes people's constitutional rights away," the Democratic candidate said. "When the law is as clear as it is, I would tell the governor, 'I would be happy to let you pay whatever you want to hire whomever as a special attorney general.' "
Not only does Stormont expect the state to lose its case before the high court, he also fears Utah taxpayers will have to cough up hundreds of thousands, not just for the state's expenses but also to pay legal fees of the victors.
The attorneys in Kitchen v. Herbert challenging Utah's gay marriage ban have not sought legal fees from the state. But others, including a related case challenging Utah's ban on adoptions by gay couples, have.
Such considerations are important when other areas that are the responsibility of the attorney general's office, child-protection cases in particular, are starved for money and have huge backlogs, Stormont said.
The same applies to the Utah Legislature's stance on public lands, he added. Suing the federal government demanding the state be given control of the federal lands in its borders as the Legislature is demanding will make the state look foolish and undermine its negotiating position, in addition to wasting precious resources.
"You take a look at it with your lawyer glasses and not your politician glasses, and you say, 'We're gonna lose. Why spend our money fighting it?' "Stormont said. "When you take extreme positions, you remove the opportunity for [negotiations] to occur, and that benefits some outside lawyers tremendously who get to bill, bill, bill, but it doesn't benefit Utah."
National split • The marriage case shows an interesting dichotomy in how attorneys general nationwide have approached the issue.
Kentucky's attorney general, for example, declined to defend the state's marriage ban and the governor hired outside counsel. Attorneys general in Oregon, Nevada, Virginia, Pennsylvania, California and Illinois are among those who have also declined to defend their states' bans.
Some cited their oaths of office to defend the state and U.S. constitutions; others said they had a professional obligation not to handle a case in which they fundamentally disagree with the issue.
Disagreements between the Utah attorney general and the governor or Legislature are not unprecedented, particularly during the era when Democratic Attorney General Jan Graham sparred with Republican Gov. Mike Leavitt and the GOP Legislature.
When Graham first took office, Leavitt and the Legislature did not believe she was aggressive enough in defending a restrictive abortion law and hired an outside attorney to represent them in the case.
Graham also battled the Legislature and governor over state litigation against Big Tobacco.
Because of friction between Graham and Leavitt, the Legislature considered making the attorney general an appointed, rather than elected, position. Leavitt and the Legislature also passed a law stripping the attorney general's authority over civil matters, but a deal eventually gave the governor more authority to decide which cases the state joins, and the law was repealed.