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Attorney general updates Amendment 3 case on Capitol Hill

By Lisa Riley Roche and Dennis Romboy | Posted - Jan 31st, 2014 @ 7:43am

SALT LAKE CITY — Utah Attorney General Sean Reyes met with House Republicans on Thursday to discuss the state's same-sex marriage case but said he did not tell them how to handle religious freedom bills.

"I don't think it's my province to talk about what legislation should be considered or shouldn't be considered or what affect it may or may not have," Reyes said after the 90-minute closed GOP caucus.

"I'm really focused on the case right now," he said. "I'll leave the legislating to the legislators."

But rank-and-file Republican representatives walked away feeling that marriage related bills won't be heard this session because any comments seen as animus or hostile could be used against the state in court.

“How do I feel about it? It’s unfortunate,” Rep. Jacob Anderegg, R-Lehi, said. “But it’s a reasonable step because of the importance of the issue. I just don’t think it’s wise for us to add any fuel to the fire.”

Anderegg has proposed a law and a resolution for a constitutional amendment that would exempt clergy from having to marry same-sex couples if that goes against their religious teachings.

The “general consensus is we need to step back and maybe have a period of settling down, of reflection,” and that leadership doesn’t want to add any animus to the Amendment 3 case, he said.

Anderegg said the caucus discussed how speeches from the House floor were used against the state in a past case about the Utah Highway Patrol memorial crosses. In that case, the 10th Circuit ruled that the crosses on public property violated the separation of church and state.

“It backfired on them,” he said, describing the reason the state ultimately lost that case “was because we as a Legislature opened our mouth.”

Reyes said he didn't want speculate on the effect any legislation might have on the court case.

Utah is appealing a federal judge's ruling last month that struck down its voter-approved definition of marriage as the union of a man and a woman. The state's opening argument is due to the 10th Circuit Court of Appeals next Monday.


The state hired Gene Schaerr, a lawyer from Washington, D.C., with extensive constitutional and appellate law experience, as lead counsel for the appeal. He joined Reyes in the meeting with GOP House members that the attorney general described as "just informational."

House Speaker Becky Lockhart, R-Provo, said neither the caucus nor GOP leadership took a position on whether to allow religious freedom bills to move forward. But she said they should consider stepping back.

"What we're mostly looking at is what is the right thing to do in terms of where we are in this process. Where we are right now is the court has it, and so let's let the court deal with it," she said.

Senate President Wayne Niederhauser, R-Sandy, said earlier this week that there's a "strong possibility" lawmakers won't take up any religious liberty or nondiscrimination bills this year because of the court case.

Anderegg said he doesn’t expect his legislation dealing with religious freedom issues to go forward, possibly for several years as the case makes its way to the U. S. Supreme Court.

“I won’t go rogue,” he said. “The reality is, the issue is important enough that it’s not about who’s getting their name of fame.”

Anderegg said the issues he hoped to address this session “don’t need to happen this minute. Of course it’s not going to go away. We have some time. So it’s not anything we need to ramrod through.”

Rep. Mike Noel, R-Kanab, said he believes “it’s important to be very, very prudent and focus on the issue at hand. There’s a lawsuit out there. … Especially in that case, you don’t get into a lot of the particulars.”

Rep. Ken Ivory, R-West Jordan, said he believes it's a good idea to hold off on related legislation this session.

“We look at our counsel. We look at where we’re at. If we can’t protect as a Legislature and as leaders of this state, if we can’t protect the right of the people to govern themselves on something that is so unquestionably the jurisdiction of the state as marriage, then there’s going to little left to protect,” Ivory said.

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