WASHINGTON — Monte Stewart — a former U.S. Attorney and Supreme Court clerk who advocates for “man-woman marriage” — is reportedly working with the Utah Attorney General’s Office in its planned attempt to get the Supreme Court to stop same-sex couples from marrying in the state. His firm — Stewart, Taylor and Morris — confirmed that the firm “has a role” in the case.
The Salt Lake Tribune’s Brooke Adams tweeted that Stewart “has assisted” on the case and will be counsel of record in the request to the Supreme Court. Adams’ colleague, Robert Gehrke, also tweeted that Stewart has been paid a “small amount.” Deseret News also tweeted about Stewart’s involvement on Monday.
A representative of Stewart’s firm, reached Monday evening, told BuzzFeed, “Although Stewart, Taylor and Morris has a role in the Utah marriage case known as Kitchen v. Herbert, no one at the firm will make any communication or speak with any representative of the media about the case.”
In the case, U.S. District Court Judge Robert Shelby struck down Utah’s 2004 marriage amendment on Dec. 20 as unconstitutional. Both he and the 10th Circuit have refused to issue a stay of the judgment in the case while Utah pursues an appeal, which has led to same-sex couples being allowed to marry in the state since the ruling.
Earlier Monday, Sean Reyes was sworn in as attorney general for the state, and said he would be starting on day one with work on the marriage case that has captured headlines across the country in the past two weeks.
Asked whether there was any news regarding outside counsel or the filing of a Supreme Court stay request, Utah Attorney General’s Office spokesman Ryan Bruckman told BuzzFeed a little before 6 p.m. MT, “Not yet on either.” Officials with the office, including Reyes, have previously said that the office is seeking the advice of outside counsel in the case. It was not immediately clear if any other outside counsel was being consulted in addition to Stewart’s firm.
The state is expected to ask the Supreme Court this week to issue a stay in the case, a request that first will go to Justice Sonia Sotomayor, who can decide the request on her own or refer it to the entire court. As to the timing of that filing, Bruckman told BuzzFeed, “Haven’t heard from our attorneys with an updated timeline.”
The 10th Circuit, meanwhile, on Monday set a schedule for the briefing of the appeal of Shelby’s ruling about the constitutionality of the Utah amendment, requiring the state to file its first brief by Jan. 27 and concluding the briefing in the case by Feb. 25.
According to Stewart’s firm biography, he has worked for the state of Utah previously, as it notes, “Utah’s then-governor Michael Leavitt chose Mr. Stewart to lead that state’s legal efforts relative to placement of high-level nuclear waste.”
Stewart is the author of the 2008 law review article, “Marriage Facts,” which details the arguments of those advancing “man-woman marriage” and “genderless marriage” and concludes, “The successful constitutional arguments advanced in support of man-woman marriage succeed because they are ultimately premised on the factually accurate broad (or institutional) description of a complex whole—the marriage institution—that guides individual activity, sustains identity, gives sense and purpose to the lives of its participants, and thereby produces valuable social goods.”
In describing why that is so, Stewart wrote, in part:
A fundamental purpose of marriage, then, is to situate heterosexual passion within a social institution that will to the largest practical extent assure that the consequences of procreative passion (namely, children) begin and continue life with adequate private welfare.
Stewart continued to advance these arguments earlier this year, filing an amicus brief — as noted by Appellate Daily’s Michelle Olson — on behalf of the Coalition for the Protection of Marriage in the Perry v. Brown challenge to California’s Proposition 8.
In late 2012, he had filed a brief with the Supreme Court asking it to hear the Nevada case challenging that state’s ban on same-sex couples marrying before the federal appeals court to hear appeals from federal courts in Nevada could consider an appeal. The court declined to do so, and the appeal is being considered by the 9th Circuit Court of Appeals.
This article was updated at 8 p.m. with comment from the Attorney General’s Office.