Law Dork on Olson-Boies “Turf War”

Arm Wrestling Chris Geidner at Law Dork has an exclusive read on that explosive letter from American Foundation for Equal Rights that was obtained by Towleroad yesterday, along with some reactions from the letter's recipients.

Geidner notes that Chad Griffin's letter makes clear that "far from being blindsided by the Perry lawsuit—the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit."

Regarding Griffin's point that the groups seeking to intervene had earlier opposed AFER's efforts and so would not be effective in litigating, James Esseks, co-director of the ACLU LGBT Rights Project, says, "People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side…We're all in the pool; it's not just those plaintiffs."

Highlights of Law Dork's take:

"This is, in part, a turf fight, and there is no denying it. But it is a legitimate turf fight. These three groups and their boards have been involved in dozens of lawsuits relating to marriage equality. They have, for the most part, been well-planned and carefully strategized cases that have resulted in great forward movement in a relatively short time…

"The lawyers for the proposed intervenors might be coming late to the party, but the reality is that the groups they are representing have the right to seek intervention in the case and to have counsel of their choosing in such an intervention effort…

"In light of the very diversity of the LGBT community that the proposed intervenors claim to represent, this intra-LGBT fight might have been inevitable. Regardless, though, here's to hoping that everyone sits down in the coming days and weeks and figures out the best way to move forward with this case to help advance equality for all the Californians and LGBT people across the country who are watching this lawsuit with bated breath."


  1. Jonathan says

    I agree with Esseks, but with even more cynisism.

    The mainstream and very successful gay civil rights litigators said, “This lawsuit is not ready to be filed now.”

    These latecomers to the party decided to file it anyway.

    Well, the genie can’t be put back in the bottle, but if they couldn’t be trusted to file at the right time, why should the people who’ve filed the majority of successful cases trust them to litigate this case properly?

  2. kujhawker says

    When are people going to get that we have been sold out by our so called “gay leaders”. Gone is the activism of Harvey Milk and actup. Replaced by insiders who are more interest in power, prestige, influence and face time.

    It isn’t just a big thing. I am reminded of a time a friend had a homophobic run in with a business, he went to the press sun the gay leadership showed up telling him how to manage the situation. One group even went as far as to try to convince him just to drop seems the business in question had made contributions.

    Many of us have been waking up since Novemember realizing that these leaders are now part of the system and no longer fighting for all they are worth to effect change.

    If you want to get aggressive they worry about setbacks and what it will cost them. Activism is dead it is now get yourself into a good position and keep yourself there.

    We need grassroot organizations again we need activism. We need to fight at every turn and not worry that it may get us disinvited to a Presidential cocktail party or cost as the andual suck up award hosted by another organization that now exists just to host award shows rather than do any real work.

    I will support anyone that fights, and will leave behind the cowards that call for patience and working within the system.

  3. says

    Bravo kujhawker:

    Geitners right about one thing though it is a turf war. But one really has to wonder why the sudden these organizations want inclusion in the case after badmouthing it so and not supporting it. Really think about it their main argument has been now is not the time. But really when is the time? How many MORE years must we take this passive wait and see for the “perfect” time that will probably never come. These groups who want to “jump in the pool” now knoe damn well that the more groups involved the longer the case will take and thats what they want.

    As for Gietners objectivity on this I call that into question also. I read Law Dork and Geitner is definately of the “slow and steady wins the race” mode and sides with our self appointed leaders and organizations and has been calling out people and blogs who are pushing harder for equality due to everything thats going on and has been calling out “reactionary” moves. Geitner calls out Avarois for being reactionary constantly. (And I’ll admit John might sometimes go a bit overboard but he like many of us are angry but geitners the exact opposit and supports Obama’s handeling and the way our Organizations handel thing. He’s even called out Pam’s and TowlerRoad itself in his posts that he deemed reactionary.

    If the ACLU et al. Now think that lawsuits are now good idea now that can get together and present their own Gay Rights issues.

  4. Bill says

    Lambda Legal has fought and won many rights for gay people for decades. Don’t ever question their dedication!!!

    Heterosexuals are on every court. Heterosexuals have oppressed gay people for thousands of years. Heterosexuals are very likely to side with heterosexuals. The majority always tries to protect their privileges. Heterosexuality is connected to systematic discrimination. All those things have occurred when heterosexual-only/ anti-gay constitutional amendments were challenged in courts. Don’t you remember the court challenge to Prop 8? Gay people have lost every court battle challenging these heterosexual-only/ anti-gay constitutional amendments. I think we will lose in the Supreme Court too.

  5. ohplease says

    Who the hell is Chad Griffin and why does he think he singlehandedly gets to decide the fate of millions of Americans?

    I am extremely grateful that the organizations that have won me every single right I have today are still looking out for me.

    I don’t know if it’s obvious that they’re trying to slow this case down, but I sure hope that’s their main goal. By keeping the Republicans from racing this through the system, California will have the chance to repeal Prop 8 next year — which they will most surely do, and the Republicans know it — and then render this case moot.

    I will not cheerlead professional Republican right-wing extremist traitor Ted Olson as he works to destroy everything that a community to which he has no connection has built over forty years. I did not support him when he successfully worked to overthrow democracy and give us eight years of Dick Cheney and I will not support him now or ever.

    And who the hell is Chad Griffin — besides someone who, if he isn’t stopped now, will go down as the single most despised figure in LGBT history?

    How anyone could think that simply deciding that we “aren’t going to wait anymore” — as if forty years of steady progress and monumental success is “waiting” — is the key to magically being given a gay utopia by our worst enemies (both Olson and the majority of the current Supreme Court) is mind-boggling.

    Anyone who engages in that magical thinking clearly has no sense of history, no understanding of our legal system, and no ability to discern friend from foe.

    Everyone wants equality, and, fortunately, we still have our defenders and advocates who are still looking at for us. Good luck to them in slowing this down and taking our power back from this nobody named Chad Griffin and the American traitor Ted Olson.

  6. Gianpiero says

    While I’m all for the “activism of Harvey Milk and actup” where it can have some effect (e.g., raising consciousness and getting out voters for repeal of antigay laws), how exactly would that help in this instance, where we’re dealing with important questions of law? Whether Olson/Boies and the other groups work together or not, it’s reason and writing, not yelling and demanding, that’s going to solve this particular matter.

    I’m of two minds about the intervenor issue. On the one hand, the statement in AFER’s letter are correct, and I can’t say they’re not justified in feeling as they do. On the other hand, the role of people like Jenny Pizer at Lambda Legal in getting the first marriage decision in California was enormous, and the attitude that some people are taking that Lambda has somehow abandoned us or “done us wrong” is unfounded. If they don’t get intervenor status, I certainly hope they take up AFER’s invitation to submit amicus briefs. In fact, we must expect it of them, or they really will lose credibility.

  7. Z says

    Law Dork’s analysis is right on the mark. Thank god these organizations are getting involved. It was a huge mistake to bring this case, but now at least the grown ups will be there to make sure it gets done right, so that we have the best shot of winning and the damage is at least minimized if we lose.

  8. says

    I am not saying that Lambda Legal et all have not done great things and will probably continue to. But they originally wanted nothing to do with this case. And now that they want inclusion they shouldn;t automatically get it because of “what they’ve done in the past”.

    And the HUGE thing that people are forgeting is that the DEFENDENTS are asking that they not be involved. That is in the letter. Griffin just wrote it.

    It IS the Defendents case after and I am sure that one of the main reasins is that they DON’T want the other organizations involved is because they probably refused them and tried to disuade them from filing the suit in the first place.

  9. jimmyboyo says

    our orgs


    The best way to sum them up

    If a someone gives you a cure for what ails you then what reason do you have to ever visit them again, pay them more money, etc

    The ideal to keep the money rolling in/ keep one’s job is to string you along with a minimum of relief but no cure

  10. Jeff says

    Any claim that Lambda Legal and the ACLU’s Lesbian and Gay Rights Project have somehow abandoned the LGBT community is absolutely absurd. It’s just completely wrong. These groups are not HRC or whoever else you feel has failed us. They have been OUR “law firm” (even if you haven’t been paying them, lots of us have been) and they have been smart and dedicated and successful. For years.

    I do know people at both groups, and at NCLR. They coordinate their efforts, and the efforts of dozens of pro bono (doing it for free) lawyers at high profile law firms, incredibly well. They are used to working collaboratively, and winning. Part of winning is avoiding cases that would lose, but it’s because a loss is not just a loss for that one small case. Decisions against us are then used by other courts to justify further decisions against us; one legal loss can spread to countless others, and in unexpected ways.

    So I implore everyone to take them at their word: they did not think this case was wise at this time but it’s happening, so they want to be involved (as they have on every major litigation affecting our interests in the past few decades) and they desperately want a victory.

    Do you know any lawyers? Especially litigators? They want to win. If you doubt anything else about their motivation, never doubt that. It is their single defining quality.

  11. Jeffrey says

    This will take YEARS to work it’s way to the Supreme Court and I am glad they are starting now. Slow it down???!!! Are you kidding me?
    Who knows what the conditions will be 5 or 10 years down the line. There might actually be MORE conservatives on the court at some future date. There is no guarantee that there will EVER be a ‘perfect’ time to do it. At least now, we have a very possible 5-4 win and I think it’s worth taking that chance.

  12. kujhawker says

    “Part of winning is avoiding cases that would lose, but it’s because a loss is not just a loss for that one small case. Decisions against us are then used by other courts to justify further decisions against us; one legal loss can spread to countless others, and in unexpected ways.”

    My God that sounds like something Sarah Palin would say.

    “So I implore everyone to take them at their word: they did not think this case was wise at this time but it’s happening, so they want to be involved (as they have on every major litigation affecting our interests in the past few decades) and they desperately want a victory. ”

    In other words it was a bad idea but now the want to be involved because if there is a win they want a credit. Once agains sound like Palin logic.

    You either believe in something and fight for it or you don’t. Once you start only playing the winable cards your no longer fighting only playing the game.

    ACLU and NCLR have done great things and made great strides there choices in cases are political. I have heard from people who were tunred away because it was not winable, or the timing or setting was not right.

    Now their caution and fear and political strategy as locked them out of a case with great potential and now they want to be included. Why include a group that actively tried to prevent the case in the first place?

  13. says

    I’ll second those who cite the importance of timing and not establishing a bad precedent with the SCOTUS.

    Bowers was valid from 1986 to 2003 and was a major obstacle to gay rights.

    On marriage, the Baker v Nelson case from 1971 is cited to this day as proof that limiting marriage to opposite-sex couples does not violate the US Constitution. It was cited in that awful DOJ brief.

    We do not need a loss at the Supreme Court level now.

  14. says

    Seems like there’s a lot of lumping together of gay groups on the threads related to this case. As Jeff points out, the LGBT legal organizations know what they’re doing, and we owe much of our court progress on marriage equality to the people in these groups. So to dismiss them out of hand, as some did on the previous thread, to make way for the American Foundation for Equal Rights with its star conservative lawyer and relatively untested leader, is foolish. On the other hand, their intervention, given their previous opposition, raises questions. Clearly, now that the case is going forward and the disgruntlement is on the table, all those involved need to work it out and keep their eye on the ball instead of on the infighting. Timing is important–the marriage fight isn’t just about this case, so it’s simplistic to say that we should do this NOW because there is never a perfect time. There isn’t a perfect time but there are wrong times, and careful coordination of our efforts is crucial however impatient we are for the end victory.

    Bill, yep, heterosexuals have been our oppressors, no argument there. But, you know what, they don’t all hate us, they really don’t! Know who the strongest advocates behind the successful marriage equality bill in VT were, the people who made it happen this year? Hint: Not homos.

  15. says

    The timing thing. They want to wait until more states say gay okay to gay marriage. The thing is that There really aren’t many more on the horizon. NY is out of the queation now this year. PA has a 50/50 chance. Rhode Island doesn’t look good. And after that there aren’t many more states even close to getting Gay Marriage passed. New England was the high point. Don’t fool yourselves in thinking at any southern states are going to allow gay marriage, Iowa was a fluke but don;t look to the rest of the Midwest. And people in Maine are already trying to get a No on Gay Marriage on the ballot and if they succeed theres a chance it will be struck down there like in California.

    When WE DO win our enemies ALWAYS find ways to battle the gains we made and they always will. And the sad thing is that our wins in individual states hardly help further gay marriage in other states. The only real was to start ending this is to either start fighting back by going to court. If we follow the “patience” campaign we are looking at least anothr 10-20 years.

    Fight in the Courts. Put pressure on politicians and the Goverment. But for gods ssake give up this inspid state by state plan which will take forever and is easily reversable. We should have been focusing on the unconstitutionalit of DOMA from the beginning. To wait for more States before proceeding is risdiculous because there aren’t that many more on the horizon that will make a difference in the numbers.

  16. says

    Our greatest strength is our biggest liability.

    Unlike Blacks, Latinos, Jews, Women, etc., we Gays are actually the only oppressed group that cuts across every line and demographic.

    Because of this, we don’t have a national leader. This is the real reason we are so mad at Obama.

    We thought he was “The One.”

    He’s not.

    Neither are any of these Lawyers.

    Until we find a true leader who doesn’t come off as same old same old, we are in trouble.

    A leader would have sat these people down and come up with a common strategy. And NOT like California Equality where you just ignore anyone who doesn’t live in 90069.

    I don’t really understand the legalese here at all. I do know that if the Supreme court says no, we’re screwed.

    Where is our leader?

    Dan Choi?

  17. Z says

    Kujhawker says this is “Sarah Palin logic:

    “Part of winning is avoiding cases that would lose, but it’s because a loss is not just a loss for that one small case. Decisions against us are then used by other courts to justify further decisions against us; one legal loss can spread to countless others, and in unexpected ways.”

    Umm, no, it’s not. It’s something anyone who knows anything about the legal system understands very well. Cases that get decided by the Supreme Court set a precedent, which then gets quoted and used by other courts for years to come in all kinds of different ways. After Bowers v. Hardwick upheld sodomy laws in the 1980s, it was used by courts all over the country to rule against gay people in employment discimination cases, military expulsion cases, marriage cases, and just about every other kind of case. You can be in favor of the lawsuit if you want, but you have to acknowledge that a loss could have negative repercussions that go far beyond marriage. This is not a game, kids, and it’s not something we should do just to express our anger and frustration. It is serious business, and it will affect real people’s lives for decades to come.

  18. Jeffrey says

    @Z “It is serious business, and it will affect real people’s lives for decades to come.”

    And peoples lives have been negatively affected for decades and continue to be affected and this needs to stop.
    Who can promise me that at some point in the future it will be a slam dunk to win this case before the Supreme Court? You can’t.
    Suppose a Republican wins in 2012. And suppose two of the more liberal justices have to retire for health reasons or they die. And that Republican President appoints 2 more conservatives to the bench and all the other conservatives enjoy perfect health and serve until they are 95 years old. What then? How long do we wait until we have that perfect scenario?
    Maybe now is the best shot we will have for the next 30 years. You just don’t know. so do it now.

  19. kujhawker says

    Z is just giving the typical response of the gay leadership of being patient and waiting in the back of the bus till the time is just right. And don’t worry about figure out that time for yourself the leadership will tell us.

    No it is not a game it is a fight, and you don’t fight by not fighting and by quiting like Sarah palin. You fight by throwing everything in your arsenal at it. You fight by demanding full equality now.

    I have waited for over 20 years and I am tired of people telling me I have to wait because they know about law and how things work.

    I find it interesting the Z quotes a sodomy case and how it was used against us, till of course the supreme court overturned it.

    Yes there is a chance of losing, but if we don’t even try how are we going to know. Sorry I didn’t elect anyone to decide when the time was right for my equality to be granted.

  20. Z says

    Personally, I’d rather wait a couple of years to see if we get a better US Supreme Court. To me that’s preferable to getting an opinion right now that says banning gay marriage is just peachy, and so is DOMA, so is DADT, and so is banning gay people from adopting. Because that’s what we’re gonna get from the current SCOTUS. And then we’ll have to live with that for years and years and years. Remember, people, Bowers was overturned in just 17 years — record time for SCOTUS. Plessy v. Ferguson, which said that race segregation was just fine, was decided in 1896. It was not overruled until 1954, 58 long years later.

    So you know what? I am just fine continuing on this path of winning marriage state by state, changing people’s minds, persuading legislators, and maybe in 3 or 4 years, a federal case will make sense. And even if it doesn’t, there will be a political tipping point, probably sooner than anyone thinks, and all of this will seem like ancient history because everyone in the mainstream will support us.

  21. Wheezy says

    My second thought, “Fuck that, HRC, I’m all out of patience. Stonewall was 40 years ago…and our legal rights *haven’t* come a long way baby!”

  22. nic says

    we don’t have the reliable votes on the scotus to force this issue now. unless boies and olson know something we don’t, this move is ill-advised. rulings establish precedent. i think it is counter-productive at this point. i agree with law dork.

  23. says

    “Fuck that, HRC, I’m all out of patience.”

    As far as I know, the HRC is not particularly involved in this. The gay LEGAL groups who are seeking to intervene have had a significant role in the marriage battles we’ve won thus far. People keep conflating all the gay groups and critiquing them based on their misgivings about one. It can be argued that NCLR, Lambda Legal, and the ACLU should be staying out of this case, but we need them and they’ve done good work on our behalf. I think everyone on our side wants full equality asap, but there are fundamental disagreements about the best and most efficient way to achieve that, and questioning the timing of this case is in no way akin to quitting, as some are suggesting.

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