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Story Updated : 8/1/2009 8:44:18 AM

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.

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Reader Comments
  • Name: Etaoin Shrdlu
    Date posted: 7/10/2009 8:28:00 PM
    Hometown: Tolleson, AZ

    Comment:

    To 21st centruy human (7/10/09 @ 10:37 AM): I agree that in the long term the prospects for same-sex marriage (or Civil Unions) appears bright. But that doesn't mean this litigation is a smart idea. It's not. Given the current make up of the Supreme Court the odds are it will fail. It strikes me as a tragic mistake to be pursuing this case (and the DOMA case in Massachusettes) at a time when the cause is being advanced by Legislative action in many states. That's the way to proceed, especially since it removes the argument of "judicial tyranny" from the equation. Those enraptured by their own rhetoric may not want to hear this, but there is a valid case to be made that any change of the law in this area must be by legislation and not judicial decree. STAY OUT OF THE COURTS!

  • Name: Etaoin Shrdlu
    Date posted: 7/10/2009 8:22:00 PM
    Hometown: Tolleson, AZ

    Comment:

    michaelandfred on 7/10/09 @ 9:34 AM claims that: "So far, most of the strides we have made in the courts have been at the hands of 'republican' judges. Sir, where did you derive that delusion? You cite the case striking down sodomy laws (Lawrence v. Texas). Well, two of the judges who voted to do so were appointed by a Democrat (Bryer and Ginzburg), two more were appointed by Republicans who later regretted their choice as the judges proved to be liberals (Stevens and Souter), the last (appointed by a Republican) was the notorious "swing vote" Kennedy. On the other hand, the three judges who would have sustained sodomy laws were all Republicans (Rhenquist, Scalia, and Thomas). Party affiliation doesn't matter as much as judicial philosophy. You want to gamble Kennedy will be the "swing vote" for gay rights this time? I'd call that a very bad bet! STAY OUT OF THE COURTS!

  • Name: Etaoin Shrdlu
    Date posted: 7/10/2009 8:13:00 PM
    Hometown: Tolleson, AZ

    Comment:

    Justice Miller on 7/9/09 @ 10:48 PM claims the Supreme Court will rule in favor of gay marriage, with Clarence Thomas providing the vital 5th vote. I have two questions, sir: 1) Are you being sarcastic? 2) If not, what are you smoking?

  • Name: Argos
    Date posted: 7/10/2009 2:52:00 PM
    Hometown: Sacramento

    Comment:

    Really Tim? And who was it who won Lawrence v. Texas? LAMBDA

  • Name: Jim Watson
    Date posted: 7/10/2009 2:21:00 PM
    Hometown: Madison, WI

    Comment:

    You LGBT conspiracy theorists sound as crazy as the right-wing conspiracy theorists. YOU'RE NUTS! /rant Olson and Boies are a hell of a lot better than that ambulance chaser representing the Smelt case...you know the really dangerous suit that holds up the constitution and says to the courts, "Pick a spot and tell us Prop8 is unconstitutional because we can't decide which clause is violated."

  • Name: 21st centruy human
    Date posted: 7/10/2009 10:37:00 AM
    Hometown: the world

    Comment:

    It often helps to stand back and look at the big picture. The unmistakable trend of history is for more acceptance of gays and gay rights, and that trend has been accelerating in recent years throughout the modern world. Laws against homosexuality are disappearing from civilized nations. Marriage equality is a reality in a growing number of countries, provinces, and states. Many more have recognized some sort of civil unions, not equality, but better than what was there, and these will serve as transition mechanisms to help people to ajust to more modern thinking. Little by little, sometimes in big chunks, homophobia is disintegrating. The bigots will lose, and eventually their way of thinking will all but die out. Even the churches will adapt to this reality just as the Christian right changed on slavery. The world is telling those who presume to know God's will that they have been wrong. They'll learn. Oh yes, there will be some setbacks, but the tide of history cannot be stopped.

  • Name: michaelandfred
    Date posted: 7/10/2009 9:34:00 AM
    Hometown: miami Beach

    Comment:

    So far, most of the strides we have made in the courts have been at the hands of "republican" judges on constitutional/discrimination grounds. In almost every state where we have won rights. The two fighting this case understand those two principles very well. It's as we all say all the time. This is a civl rights issue, NOT a gay one. A bunch of conservative judges don't want to her about us as gays, they want to hear the facts of the case and it's constitutionality and how it affects American citizens. This is most likely why these two have a chance. The recent sodomy case was won for exactly these reasons. Not because the justices on the Supreme Court thought we should all be out having sex with each other and enjoyed hearing our sob stories about not getting any, but because we had a RIGHT to do so if everyone else in the country did. Let them fight.

  • Name: John
    Date posted: 7/10/2009 8:08:00 AM
    Hometown: New Haven

    Comment:

    I do not understand why Ted Olsen is interested in this case at all. He has never been in favor of progressive causes. He has always been far to the right on social issues. I don't like to be suspicious, but I can't help feeling that he wants to rush this case to defeat.

  • Name: PJR
    Date posted: 7/10/2009 2:23:00 AM
    Hometown: Michigan

    Comment:

    Holly I think many hope your assessment comes true, as the silent majority of Americans who totally disagree with the gay agenda can only hope you're right, and these misguided attorneys mess up and lose big!! The other option that appears as hopeful is that the gay agenda organization's whining lawyers come in uninvited and mess up and lose big too! Both would be great outcomes that hopefully put this stinkin' thinkin' to bed with the appropriate morally correct outcome reflecting the majority's better values and will, thus solving it as settled law for all generations to come and more!! Cross your fingers and pray!

  • Name: Holly Gunner
    Date posted: 7/10/2009 1:07:00 AM
    Hometown: Newton, Mass.

    Comment:

    Boies & Olson aren't civil rights lawyers, let alone experienced in bringing gay rights cases. This is like having a cardiologist - even a great one - do brain surgery. They showed how green they are at this kind of impact litigation when they held a press conference, did all the talking themselves, while the gay & lesbian plaintiff couples stood by in silence. When plaintiffs tell their stories in their own words, we have won in the courts. It's essential to do the public education work hand in hand with the legal work. Otherwise, we lose. Boies & Olson don't get it. They will set us back 50 years. The road to hell is paved with good intentions. I don't question their motives. They are inexperienced at litigation that involves emotionally-charged social issues, and they haven't spent their careers on Constitutional Law. They shouldn't be cutting their teeth on gay people's lives and families.

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