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Price tag for defending Amendment 3 expected to reach $2 million

About 1,500 people gather to celebrate marriage equality after a Federal Judge declined to stay his ruling that legalized same sex marriage in Utah, at Washington Square just outside of the Salt Lake City and County Building Monday, Dec. 23, 2013, in Salt
About 1,500 people gather to celebrate marriage equality after a Federal Judge declined to stay his ruling that legalized same sex marriage in Utah, at Washington Square just outside of the Salt Lake City and County Building Monday, Dec. 23, 2013, in Salt Lake City.
Tom Smart, Deseret News

SALT LAKE CITY — The price tag for hiring outside counsel to defend Utah's voter-approved constitutional amendment on marriage is expected to be close to $2 million, money that key GOP lawmakers are willing to spend.

"We need the best we can get," House Speaker Becky Lockhart, R-Provo, said after a House GOP leadership meeting Friday with newly named Attorney General Sean Reyes. "He's coming into this, frankly, in the middle."

Reyes laid out his case for bringing in help to seek a stay from the U.S. Supreme Court of last Friday's ruling striking down Amendment 3, a decision resulting in same-sex marriage being allowed in Utah.

He has said he also intends to use the outside counsel to bolster the state's appeal of U.S. District Judge Robert Shelby's ruling to the 10th Circuit Court of Appeals and possibly to the Supreme Court.

After hearing Reyes' strategy and the projected cost, Lockhart said the House Republican majority leadership "felt comfortable telling him, 'Move forward with what you think is in the best interest of the state.'"

Reyes, tapped Monday by Gov. Gary Herbert to replace former Attorney General John Swallow who continues to be investigated for influence peddling, is set to be sworn into office at 2 p.m. Monday in the state Capitol rotunda.

The acting spokesman for the attorney general's office, Ryan Bruckman, said Friday that negotiations with the lawyers being hired were still underway and no details were available, including their names.

Lockhart said she is hearing from other lawmakers that their constituents are willing to fight for Amendment 3 in court, even if that means coming up with more cash.

"To go through the court process on an issue that, on a 2-to-1 vote the people of our state felt was important to have in our constitution, I think is of value," the speaker said.

Senate President Wayne Niederhauser, R-Sandy, said he has yet to talk with Reyes about hiring outside counsel but would likely be willing to appropriate the funds in the coming legislative session.

"This is a big deal for the Legislature and for Utah," Niederhauser said. "We want the details, but my guess is that our body, the Senate Majority Caucus, is going to be very supportive of that idea."

Sen. John Valentine, R-Orem, who considered running for attorney general after Swallow announced his resignation last month, said there is a need for outside counsel.

"We should be paying for the best and the brightest," Valentine said. "This is a case that is not only a historic precedent, but it's one that really goes to the core of what states' rights is all about."

Valentine said while bringing in outside counsel is expensive, members of the Legislature "generally are going to be concerned about the precedential nature of this case and the need for Utah to put it's best foot forward."

Senate Minority Leader Gene Davis, D-Salt Lake City, however, said there's no need to hire outside counsel.

"I think it's a ridiculous way to go. I don't think we're going to win," Davis said. "I believe we have appropriated the money for the attorney general's office for good attorneys to be able to argue any issue."

Sutherland Institute President Paul Mero said the conservative think tank has already called for the attorney general to appoint outside counsel on the Amendment 3 case.

"We've been very disappointed with counsel in the A.G.'s office to date," Mero said. "And we think given that Sean is new in that seat, that outside counsel would make sense."

Mero said the Sutherland Institute is even willing to pick up the bill for outside counsel on the case, depending on both the law firm and the strategy Reyes chooses.

He declined to be more specific, but he said the money could be easily raised "all contingent on having the counsel do it our way and actually having competent attorneys."

Mero said, so far, the attorney general's office doesn't seem to "know how to defend marriage and family. … We just want to win. I'm willing to put my money where my mouth is."

Accepting such an offer could be problematic for the state.

"We wouldn't be turning over control to another entity," Niederhauser said.

The Human Rights Campaign, which supports lesbian, gay, bisexual and transgender rights, criticized the move to hire outside counsel in a statement.

"Defending discrimination while expending millions of taxpayer dollars to do it is beyond explanation," the HRC said. "It should be an affront to all Utahns that their hard-earned tax dollars — dollars that should be going into schools, roads or health programs — will instead be used to be on the wrong side of history."

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