Veteran Supreme Court and appellate advocate Gene Schaerr is leaving Winston & Strawn to represent the state of Utah in defense of its constitutional ban on same-sex marriage.
“We are pleased that he is so eager to represent our state and that he would leave his firm so he can focus on this case exclusively,” Utah Attorney General Sean Reyes said in a press release announcing the hiring of Schaerr Thursday. Reyes said Schaerr has agreed to cap his fees at $200,000 for his work on the case before the U.S. Court of Appeals for the Tenth Circuit.
Schaerr will lead the team appealing the December 20 decision in Kitchen v. Herbert in which a U.S. District Court judge struck down the Utah constitutional provision prohibiting same-sex marriage on equal protection and due process grounds.
“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said in the announcement, also noting that Schaerr used to work with the late U.S. solicitor general Rex Lee. Lee is a revered figure in Utah, where he also served as president of Brigham Young University. Schaerr worked with Lee at Sidley Austin before joining Winston in 2005.
Winston & Strawn Friday morning released a statement about Schaerr's departure: "Gene Schaerr, our former partner and formerly one of the co-leaders of our appellate and critical motions practice, has decided to resign from the firm in order to take a position as Special Assistant Attorney General for the State of Utah in order to lead the State’s appellate efforts in the Kitchen, et al. v. Herbert et. al case. Linda Coberly will continue to lead the firm’s appellate practice and will facilitate a seamless transition for our clients. The firm wishes Gene all the best."
The statement does not address reports by some online commentators suggesting that Schaerr left Winston because representing challengers to same-sex marriage would be too controversial for the firm. The Winston web site boasts of its work with LGBT organizations and issues and has an LGBT affinity group within its work force. It also was one of the first law firms to extend certain benefits to same-sex partners of employees.
The news of Schaerr's move calls to mind Paul Clement’s highly public 2011 departure from King & Spalding when he signed on as counsel for congressional supporters of the Defense of Marriage Act. Pressure from within King & Spalding -- as well as from some of its clients -- were said to be factors in Clement’s exit.
Also joining Utah’s team in the case will be John Bursch of Warner Norcross & Judd, who recently quit the position of Michigan solicitor general, where he argued numerous times before the Supreme Court.