07/09/2009
Pushback from Olson-Boies as LGBT Groups File to Intervene
According to a press release, the LGBT groups Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project have filed a motion asking that the U.S. District Court in San Francisco to allow Our Family Coalition, Lavender Seniors of the East Bay and Parents, Families, and Friends of Lesbians and Gays to intervene in Perry v. Schwarzenegger, the Olson-Boies federal suit (filed as American Foundation for Equal Rights) designed to put the question of marriage equality before the United States Supreme Court as soon as possible.
Earlier, Lambda Legal and others issued
a warning that "ill-timed lawsuits could set the fight for marriage back."
"These groups wish to illustrate for the court the diverse needs of their members and the lesbian, gay, bisexual, and transgender (LGBT) community generally to provide the full factual record," said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal. Lambda Legal, NCLR and ACLU had previously filed
a friend-of-the-court brief in the case June 26.
But Towleroad has obtained a copy of a letter (full letter after the jump) from Chad H. Griffin, Board President of American Foundation for Equal Rights, to the LGBT groups urging the following:
"On behalf of the plaintiffs and our board, donors and supporters, I am writing to ask that you not intervene in Perry v. Schwarzenegger.
"Given our willingness to collaborate with you, and your efforts to undercut this case, we were surprised and disappointed when we became aware of your desire to intervene.
"You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of that, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene."
The letter is tough stuff, laundry-listing the LGBT groups' unhelpful soundbytes and actions, and goes on to list the Foundation's efforts to "stand together, shoulder to shoulder, in this battle."
Despite the obvious rift, Griffin writes that the Foundation remains "willing to work closely with you at all stages of this case and welcome your continued participation in the district court proceedings as an
amicus curiae. But we cannot and will not support your motion to intervene."
The argument for the Johnny-come-lately LGBT groups butting out is more persuasive than just a me-first, knee-jerk reaction:
"As a result of your intervention, we could be mired in procedurally convoluted pre-trial maneuvering for years—while and 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."
It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or—depending on your capacity for cynicism—are intentionally dragging down a suit from a rival group working for the same cause.
Posted 10:28 AM EST by Matthew Rettenmund in David Boies, Gay Marriage, Gay Marriage Quotes, News, Proposition 8, Ted Olson |
Permalink
Like it?
Subscribe to FREE Towleroad daily headlines with our RSS feed!
RECENT STORIES:
Post a comment
You can follow this conversation by subscribing to the comment feed for this post.
"or—depending on your capacity for cynicism—are intentionally dragging down a suit from a rival group working for the same cause."
I think it's more likely "intentionally trying to slow down a case that is unlikely to produce a positive result for gays and which was filed (in part) by a right-winger who has never indicated support for the community - producing rightful cynicism about the suit's real intention."
Posted by: ChicagoRick | Jul 9, 2009 10:35:59 AM
Why is some nobody like Chad Griffin singlehandedly determining the fate of every LGBT person in this country?
Why did he choose as an attorney the career-long extremist right-wing traitor responsible for putting Dick Cheney in the White House?
Why do you apparently think that's a good idea?
Why do you insult the organizations that have spent decades securing us every success we ever had?
Posted by: ohplease | Jul 9, 2009 10:39:22 AM
Or maybe the most obvious explanation: realizing that this train has left the station, these groups (the ones we can thank for decades of legal victories for LGBT Americans) want to make sure the first-time train conductor knows how to drive the damn thing.
A motion to intervene doesn't mean that they are taking over, it only means that they become actual parties with a right to speak in the litigation (as opposed to a "friend of the court" speaking from the sidelines). It's nice that Olson and Boies seem to be genuinely on our side. But I'll feel a whole lot better knowing that OUR gay-legal experts are involved in this case ... if only to minimize the damage it may cause.
This Griffin guy and his new "Foundation" are sounding incredibly petty and selfish.
Posted by: Jeff | Jul 9, 2009 10:41:59 AM
The groups originally opposed this suit, then filed a friend of the court brief—so they are apparently supportive of this suit now. If that is true, I think the question is why it is necessary for them to complicate the case if their intentions are to assist in its success?
The fears about Olson's involvement are not lost on me—that was my first reaction. However, what about the involvement of the others at American Foundation for Equal Rights? Are we questioning the motives of Mr. Griffin, the Reiners, Bruce Cohen, Kristina Schake and Lance Black? Perhaps their suit will succeed, perhaps it will fail, but I personally believe we should now be past the conspiracy angle regarding Olson.
Again, my opinions. Thanks, everyone, for all the comments on this and other posts. — Matt
Posted by: Matthew Rettenmund | Jul 9, 2009 10:58:55 AM
OHPLEASE (and others):
Why do you continue to disparage an effort to secure your rights as a gay person (assuming you are gay)? The fact is that if "gay rights" are granted via legislative efforts they will forever be held hostage by the threat of "the people" overturning them. We've seen how well that works (or FAILZ)!
The courts, as risky as it might seem, are the best way to most safely and expeditiously secure rights for minorities no matter their source of oppression. Your conspiracy theory of Olson and Boies being a right-wing plot carry little (read NO) weight with the thinking ones of us that support the Perry suit.
Stop blindly following the lead of the LGBT organizations that have publicly scorned credible efforts to secure gay rights and think for yourself.
Posted by: Rainbow Rascal | Jul 9, 2009 10:59:47 AM
Anyone who thinks that Lambda Legal and the ACLU are "johnny come lately" groups is too hopelessly uninformed on the history of gay rights litigation to be taken seriously.
Meanwhile, intervention is a matter of right. If the potential intervenor (and the judge) believe that the litigation affects the intervenor and that the litigants are not likely to adequately represent the intervenor's interests or legal arguments, then it wholly appropriate to allow the intervenors to represent their own interests. It's called "due process" -- maybe you've heard of it?
Or are we suddenly opposed to allowing people to sue for their rights?
One more point: The term is "amicus curiae" -- friend of the COURT. It says nothing about being a "friend of the plaintiff."
Posted by: KipEsquire | Jul 9, 2009 11:01:26 AM
Gosh, I'm seriously torn here. I must say, even though I'm a big fan and supporter of Lambda, I'm inclined to support Olson-Boies on this one. Based on their legal arguments and position in the legal community, I would put my money there. I'm hopeful they can find a way to work together.
Posted by: Nick | Jul 9, 2009 11:03:32 AM
+1 @Jeff.
Posted by: PistolPetey | Jul 9, 2009 11:09:50 AM
"I'm inclined to support Olson-Boies on this one. Based on their legal arguments and position in the legal community, I would put my money there."
The problem isn't their arguments - it is their timing. We know we're on the right side here, but as long as there is a conservative majority on the Supreme Court, the right argument will fall on the wrong ears.
Posted by: ChicagoRick | Jul 9, 2009 11:14:59 AM
Yes, Matthew's comments are naive. Those are not the only two options, young one.
This lawsuit is high-profile and very unlikely to succeed. Groups that have been legitimately fighting for equality for years do not want to
be set back because of an adverse decision here, and so want a say in the process.
Their move for intervention is unlikely to be accepted, but at least it demonstrates that they will not be walked over by hetero Johnny-come-latelys with a slick set-up, well-known names and a very-high-risk strategy
Posted by: mark m | Jul 9, 2009 11:24:31 AM
Chicagorick:
Kennedy is considered the "swing vote," and has previously ruled in favor of gay rights. It's not so clear that there is a "conservative majority" that would cause this lawsuit to be detrimental.
Plus, if you think that any conservative justice is going to retire while a Democrat is in office, you've lost your mind. If you want to wait until we have a more liberal majority, you may have to wait a long time for those rights that you claim you're being deprived of.
Posted by: Jack | Jul 9, 2009 11:29:09 AM
A conservative majority on the Supreme Court is not predictive of how they will rule, though, in this case; we really don't know, and a liberal majority would not guarantee the ruling we want, either. It's impossible to tell if this is the right or wrong action until the ruling is made. If it fails, there will be a big setback, but if it succeeds, we're well past where timidity and the incessant waiting would have taken us. In my mind, not trying when you feel you have the proper argument based on the Constitution is not the right way to go, but I understand where others are coming from.
Posted by: Matt | Jul 9, 2009 11:29:18 AM
What's tragic is that the Prop. 8 fiasco made abundantly clear that there is no way to determine the correct strategy for securing our rights. We don't even have a comprehensive consensus nor a manifesto that articulates what those rights should be and until we do, we'll at best get piecemeal legislation that brings real equality a dram or less at a time.
Posted by: The Phoenix | Jul 9, 2009 11:29:27 AM
"Plus, if you think that any conservative justice is going to retire while a Democrat is in office, you've lost your mind. "
They may not want to retire, but there is a significant possibility that Scalia, Thomas or Kennedy could leave the bench for health reasons during Obama's term(s). While Kennedy has ruled for the gays in a couple of cases, he's no sure thing. Waiting to bring this case for a couple more years would both increase our chances of more favorable justices, plus give us more time to get/keep gay marriage legal in places like CA and IA. The longer we show that gays can be married and the world doesn't fall apart, the more ammunition we have on DOMA at the Supreme Court. This lawsuit is simply premature and likely to set us back.
Posted by: ChicagoRick | Jul 9, 2009 11:34:35 AM
You don't have to win in the Supreme Court to be successful. This notion that we shouldn't push for equal rights until we are assured of victory is, in my mind, insane.
Lily Ledbetter didn't wait -- and she lost in the Supreme Court. But look at what happened -- in less time than it took her case to get to the Supreme Court, Congress overrode the decision. She was featured at the Democratic Convention; she recorded ads for Obama; she was present when he signed the bill (his FIRST bill) overturning that decision.
If we lose at the Supreme Court level, after years of fighting, one hopes the country will be in the right place then to support us, and we'll see real change.
As for Olsen: he is a right-winger, and what's sad is that he's better on our issue than most Democrats. Stop attacking him, and start asking our so-called "friends" why one of the most right-wing lawyers in America is sticking his neck out for us, while they ignore us and continue to be ashamed of us.
Posted by: Bill | Jul 9, 2009 11:36:44 AM
>>The problem isn't their arguments - it is their timing. We know we're on the right side here, but as long as there is a conservative majority on the Supreme Court, the right argument will fall on the wrong ears.<<
In which case, we could wait for this to be overturned in another lifetime. Barring a life threatening illness or even death that prevented one of the more conservative justices from being able to serve, do you seriously believe that any one of them will resign their post anytime soon? Anthony Scalia would rise from his grave just to cast a vote against marriage equality.
I completely agree with Rainbow Rascal, for every legislative victory comes the potential to have it overturned. There has never been a better time than NOW to litigate this through the courts. Truth be told, it will still take several years for it to reach the Supreme Court and even then, there is no guarantee they'll even agree to hear the case.
Posted by: Keith | Jul 9, 2009 11:37:11 AM
I don't really get the intervention angle here...
If they think the case might succeed but only with their help, then surely the best option is to ingratiate themselves rather than take legal action to get in on it?
Even if someone were doing something nice for me, I'd hardly be inclined to welcome their help if they take me to court over supplying it.
If they think the case might succeed without them, then surely the best option is to play it O/B's way and support from the sidelines?
If they think the case is going to fail, why are they wasting their time & resources (= resources of their donors) hitching their wagon to it - and won't the association with a failure hinder their own distant federal plans?
I just don't see how an alliance-by-force is an attractive option at any level, nor how on Earth the situation has gotten to a state where WE are learning off it - this wrangling would surely have been better handled behind closed doors.
Sure Lambda & co. have the legal right to pursue this, but it boggles my mind that they'd WANT to do so.
Posted by: PM | Jul 9, 2009 11:40:09 AM
Kipesquire: I am not calling Lambda Legal and the ACLU Johnnies-come-lately in regards to gay rights; I specifically mean to this particular case, to which they were initially adamantly opposed. I assure you that my naivete—I'll always equate that kind of put-down in an argument to the people who shouted me down in the build-up to the Iraq War with "you don't know what you're TALKING about!"—is not that hopeless. I think what's happening between these factions is then vs. now, not wrong vs. right or bad vs. good. — Matt
Posted by: Matthew Rettenmund | Jul 9, 2009 11:41:07 AM
I think having the conservative Olson arguing for equality to the conservative Supreme Court justices is the best thing that could happen to futher our cause. Olson is clearly on our side in this and we should be rejoicing that someone like him 'gets it' and instead some of you are still caught up in judging him by his past record on non-gay issues. Boies and Olson are a dream team of lawyers for our side, we have never had such powerful and prominent legal experts going to bat for us and we should let them do their job as they see fit. Honestly, I think some of you are actually afraid of winning.
Posted by: Jeffrey | Jul 9, 2009 11:53:56 AM
As a lawyer, I totally agree with the LGBT groups' initial reaction, that going into federal court on this issue could potentially be hugely damaging to the cause. I see little to no likelihood of success. Regardless of the strength of the arguments, which I agree are sound, the federal courts will be very hesistant to step into this area that is so controversial.
If anything, my take on the LGBT groups' current filings is that the broader gay communication just refused to wait around anymore and wanted them to get on board (regardless of the slim likelihood of success). I think it's great that they would want to be involved to either craft better arguments or narrow the issues so that any eventual loss won't be totally destructive.
Posted by: Chris | Jul 9, 2009 11:58:55 AM
Oh wow Geitner like I am shocked by your opinion on this. I agree with Bill and Jeffery. I also think that Lambda Legal and the ACLU should butt out of this. Olsen and Boiles are much more capable than anyone on the ACLU or Lambda Legal staff to handel this.
Posted by: Wolf | Jul 9, 2009 12:05:10 PM
Matt, I think your "johnny come lately" comment is seriously misguided. I think these groups are saying that since it is now clear this case is moving forward, they want to give it all they have to make sure it is done right and has the best chance of winning. After all, these are the people who gave us marriage in Iowa and California to begin with. Just as importantly, though, I think they know that this case has huge risks and a huge potential to set back gay rights by decades in many different areas -- DADT, DOMA, and adoption bans, among others -- so they also want to help shape the case in a way that will minimize the damage in the event of a bad outcome. I think it's great they're joining this case. It can only help, and lord knows this case will need all the help it can get.
Posted by: Chris | Jul 9, 2009 12:05:14 PM
I'm a lawyer, and I have to say that Boies/Olson's opposing intervention by PFLAG and other friendly groups is a most unusual move that is quite unusual and quite aggressive. And then to issue that nasty letter to the press -- it's really almost unthinkably impolitic. To me it betrays a mindset of people who care more about their own egos and about maintaining total control than they do about the community.
Posted by: Phil | Jul 9, 2009 12:17:04 PM
All these 'gay rights groups' have done in the past year is totally screw up the entire Prop 8 mess. From start to finish. Our very own 'attorney' even took the COMPLETELY wrong argument in front of the Supreme Court of CA. Our 'gay rights groups' were an EPIC fail on this. EPIC.
Now, a COMPETENT legal team has stepped in to take this case in the direction it needs to go. And our 'gay rights groups' up until now have done nothing but try to sabotage them.
While many gay rights groups have done great things in the past to advance our equality, they have totally and completely BUNGLED this one.
They need to step back and leave this to QUALIFIED attorneys. I mean, did you SEE Minter present our case before the Supreme Court? It was PATHETIC. Absolutely PATHETIC.
It seems to me that our "gay rights groups' are a little upset that they will not be able to take credit for our eventual victory. And that is sad.
They have proven themselves incapable of handling this legal battle. On every front.
So, to our 'gay rights groups' I would kindly ask that you BUTT OUT and leave this to the professionals. Their lack of support up until now makes me wonder if our 'gay rights groups' have a financial interest in seeing us NOT acheive equality.
STEP AWAY FROM THE PROP 8 CASE! You've already done enough to screw this up!!!!
Posted by: Bill | Jul 9, 2009 12:25:10 PM
It's at least 16 or 20 years before the Supreme Court has any chance of swinging liberal. I'm 44, if I waited that long, I would get my equality around retirement age, my kid would be out of the house by then having grown up in a home with little legal protections.
Asking many to wait for a liberal court, is asking many to give up the fight for equality for a generation.
I favor the single deadly arrow as a strategy over having all the masses charging, however it seems important to at least give other groups a say.
Posted by: SteveSinCa | Jul 9, 2009 12:27:53 PM