Not long after a federal appeals court denied Utah’s request to stay a court decision holding that the Constitution forbids marriage discrimination against same-sex couples, the state’s incoming attorney general announced that he would hire outside counsel to assist the state in defending its discriminatory marriage laws. Though the state has not yet announced who it will hire to stand up for its ability to exclude gay Americans from the Constitution’s promise of equality, it has announced how much it expects to spend — $2 million in taxpayer dollars — an amount that both Utah House Speaker Becky Lockhart (R) and Senate President Wayne Niederhauser (R) indicated that they are willing to appropriate.
Two million dollars is an absolutely staggering figure when you consider how much anti-gay lawmakers spent in a similar case defending marriage discrimination. In 2011, U.S. House Republicans hired former Solicitor General Paul Clement, arguably the most skilled appellate attorney arguing cases today, to defend the unconstitutional Defense of Marriage Act. Clement’s bill to the American taxpayers totaled $2.3 million, only slightly more than Utah now plans to spend, despite the fact that Clement handled the DOMA case at the trial, appellate and Supreme Court level, and that he handed multiple different challenges to DOMA in multiple appeals courts.
The Utah case, by contrast, has already been decided at the trial level — often the most expensive and time-consuming portion of any litigation. At most, Utah’s outside counsel will handle the state’s appeal to the United States Court of Appeals for the Tenth Circuit and a likely appeal to the Supreme Court, plus a forthcoming request to the Supreme Court to stay the trial judge’s decision. In other words, whoever Utah hires to defend its discriminatory marriage laws is likely to do much less work than Clement’s team put into defending DOMA, and yet they stand to earn nearly as much in legal fees. Money, by the way, that could otherwise be spent to hire teachers or to build roads.