David Boies and Theodore B.
Olsen
It's official: The
simmering tensions between competing groups of LGBT rights
activists over the wisdom of trying to overturn California's
Prop. 8 in federal court have just reached a boiling point.
For the past six weeks
LGBT legal advocacy groups that have long fought for
marriage equality at the state level, including Lambda
Legal and the National Center for Lesbian Rights, have
responded with varying degrees of awkwardness to the lawsuit
filed in the San Francisco district court by a hotshot team of
federal litigators led by Ted Olson and David Boies.
Now Lambda, NCLR, and
the American Civil Liberties Union have made a formal
application to intervene in the case -- indicating none too
subtly in their court filing that they don't have confidence
their interests will be protected if they leave the case solely
in the hands of the named plaintiffs and their lawyers.
That, in turn, has
enraged the organization behind the lawsuit, the American
Foundation for Equal Rights, whose president, Chad Griffin, has
pronounced himself "surprised and disappointed" at what he
sees as a concerted effort to sabotage the suit altogether and
vowed to fight the motion to intervene tooth and nail.
The very public rift --
coming just two weeks after Lambda, NCLR, and the ACLU filed an
amicus brief ostensibly supporting the AFER suit -- can only be
good news for the Alliance Defense Fund and other opponents of
same-sex marriage who have already been allowed to intervene in
the case by U.S. district court judge Vaughn Walker.
And it follows a
depressingly familiar pattern in the world of progressive
politics wherein groups fighting for the same outcome -- in
this case, marriage equality -- turn on each other rather than
saving their firepower for their adversaries.
The motion to intervene
by Lambda, NCLR, and the ACLU cites what it calls a
"potential of divergent interests" with the plaintiffs and
adopts what might be described as a "me too" line of
argument. The groups say, correctly, that they have been in the
forefront of the battle for same-sex marriage from the
beginning and that they should therefore be front and center in
this lawsuit also.
Their corrective is to
insert three LGBT rights groups -- the Our Family Coalition,
based in San Francisco; Lavender Seniors of the East Bay; and
Parents, Families, and Friends of Lesbians and Gays -- into the
case as a supplement to the existing plaintiffs, a lesbian
couple with four children from the Bay Area and a gay couple
living in Southern California.
These groups, the
motion says, "represent much broader diversity among same-sex
couples than the two Plaintiff couples (or any two couples by
themselves), [and] would facilitate a more comprehensive
examination of the harms inflicted on same-sex couples by
Proposition 8's exclusion of those couples from marriage.
"In addition, given
the extensive experience and expertise of Proposed Intervenors
and their counsel in litigating the very factual issues
identified by the Court as in need of adjudication here,
Proposed Intervenors would be of great assistance to the
parties and the Court in developing an evidentiary record as
thoroughly and efficiently as possible."
Chad Griffin, however,
sees such arguments as nothing less than an attempt to
undermine the suit altogether -- by a trio of groups who have
never felt comfortable about the strategy of going to federal
court and have repeatedly said so.
"Your
intervention," he wrote in an eleventh-hour letter attempting
to stop the groups from filing their motion on Wednesday
afternoon, "would create a complex, multi-party proceeding
that would inevitably be hampered by procedural inefficiencies
that are directly at odds with our goal -- and the goal of
Chief Judge Walker -- of securing an expeditious, efficient,
and inexpensive resolution to the district court
proceedings.
"As a result of your
intervention, we could be mired in procedurally convoluted
pre-trial maneuvering for years -- while gay and lesbian
individuals in California continue to suffer the daily
indignity of being denied their federal constitutional right to
marry the person of their choosing. Such potentially
interminable delay is antithetical to the values on which your
organization was founded and for which you and your supporters
have fought so tirelessly."
Griffin went on to lay
out a timeline of all his efforts to include the groups in the
federal lawsuit, starting with an overture last fall to Paul
Smith, the co-chair of Lambda Legal's board of directors.
He also revealed some
extraordinary backstage fighting that went on in the wake of
the amicus brief filed by the groups on June 26.
"Even after you filed
an amicus curiae brief urging the district court to grant our
motion for a preliminary injunction against the enforcement of
Prop. 8, you refused to characterize your position as one of
'support,'" he wrote. "Indeed, Jennifer Pizer of Lambda
Legal went so far as to insist that we alter a press release
that described your amicus curiae brief as 'supporting'
our suit. In response, we issued a second release addressing
her concerns."
Moments after the
application was filed, writer and activist Larry Kramer weighed
in, urging the gay groups to back off.
"I implore your
three organizations... to not interfere with the Olson/Boies
case," he wrote in an e-mail obtained by
The Advocate
. "You will only botch up what they are trying to achieve.
You have thus far not achieved it on your own and with your own
tactics, so why are you trying to kybosh someone who has come
along with fresh new energy, ideas, and clout? You are only
behaving in the worst possible bitchy way, the way gay groups
can fall victim to when their feelings are hurt. Keep your
noses out of it, will you please? I beg of you."
It remains to be seen
if the motion to intervene succeeds. Some legal sources
questioned whether the groups could successfully make the
argument that lawyers of the caliber of Olson and Boies were
not up to the task of arguing the case in all its complexity.
They also queried the unusual decision to propose groups rather
than individuals as intervening plaintiffs.
The motion is expected
to be heard by the beginning of September.
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