LGBT Groups Unwelcome in Prop. 8 Suit

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.