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Lawyer says he didn’t need OK of gay couple to file class action on their behalf; suit is tossed

Posted Jan 3, 2014 8:35 AM CDT
By Debra Cassens Weiss

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A class-action lawsuit filed on behalf of a lesbian couple without their permission has been dismissed after they filed a motion asking a court to toss the case.

Utah lawyer E. Craig Smay filed the suit on behalf of Amy Fowler and Pidge Winburn after their marriage was featured in a front-page newspaper story, the Salt Lake Tribune reports. Fowler and Winburn married a few days after a federal judge struck down the state’s ban on same-sex marriage.

Fowler, who is also a lawyer, won dismissal of the case and filed an ethics complaint against Smay.

The federal suit had alleged the state and the Church of Jesus Christ of Latter-day Saints conspired to deprive gays of freedom of religion and the right to marry.

Smay told the Salt Lake Tribune that federal court rules allowed him to file the suit without the couple’s permission. He said he informed Fowler of that fact by email and criticized her for having “blabbed” to the press.

"I’ve explained it carefully," he said. "She can file until the cows come home. She’s wasting her time and she’s wasting my time."

University of Utah law professor Paul Cassell, a former federal judge, disagreed with Smay’s assessment of the federal rules. “You can’t drag someone into a lawsuit without their permission claiming to represent them,” he told the Salt Lake Tribune.

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