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.
Echoing Bill's comments above, the looming prospect of this case being heard before a moderate court may prompt Congress to finally act on repealing DOMA, rendering moot the outcome of much of this case.
Regarding intervenors, I too have concerns about a possible repeat of the most recent CA Proposition 8 hearing. Our case was incoherently presented by a circus of lawyers when it could have been argued clearly and cogently by a lean legal team as was done so expertly by the opposition's Kenneth Starr. Olson, and especially Boies, are masters of strategy and efficient presentation and this case would fare best if left in their capable hands. By taking an early pass on this case, ACLU, Lambda Legal and NCLR relegated their organizations to an advisory role in which they should remain.
Posted by: Mark | Jul 9, 2009 12:28:31 PM
It's entirely possible that the Olson-Boies lawsuit is going to end at the 9th circuit, and the Supreme Court will simply refuse to hear the case. Even if they were to accept the case, and rule against equality, we would be no worse of than we are today.
When the Supreme Court ruled to overturn bans on interracial marriage, over 75% of the American public disagreed with the ruling. Currently 30-40% of the public believes in marriage equality for gays and lesbians. It's the right time for this lawsuit.
Posted by: bluprntguy | Jul 9, 2009 12:30:18 PM
Do we really want this before the US Supreme Court? Can we really count on Kennedy and the 4 liberal justices, because I'm SURE WE CAN'T COUNT ON SCALIA, THOMAS, ALITO AND ROBERTS!!
Posted by: Rick | Jul 9, 2009 12:44:38 PM
Interesting discussion here...though it would be better without the ad hominem stuff.
Having just re-read the complaint in Perry v. Schwarzenegger, I continue to think Olsen and Boies are smart guys but way out of their league here. The ACLU brief is far superior.
I'm not sure if the groups that seek to intervene are the right ones, but if they are in cahoots with the ACLU and LAMBDA, I'm encouraged.
Posted by: BillyBoy | Jul 9, 2009 12:49:45 PM
@Bill, are you kidding me? This are the attorneys that won marriage in CA, and in Iowa. They won the Lawrence case that got sodomy laws thrown out all over the country. They won the Romer case, which is the main case that Boies and Olson are pinning all their hopes and dreams on. These are talented individuals who have dedicated their lives to this cause and have won you and everyone else in our community every single right that we now enjoy. If there is anyone who should butt out and leave it to the professionals, it is Boies and Olson. We all should be cheering this move, as there is now at least a decent chance that this case won't screw things up for our community for the next 20 or 30 years.
Posted by: Phil | Jul 9, 2009 12:51:25 PM
To all the people who are saying that it's not the right time, have you considered the alternatives?
Best case: We win, game over.
Worst case: We lose, and we aren't in any worse position that we are. If legislators wouldn't vote for marriage equality after a negative SCOTUS ruling, then I'll bet you a pretty sum of money that they wouldn't have before the ruling either.
We are at a point in time where, even though SCOTUS hasn't said as much, we don't have certain fundamental rights. If we don't go to court, we continue to not have them.
Call me selfish, but I'm not willing to wait 20 years to find out if there even is a "right time" to take this to the courts. I want marriage equality, largely because *I* want to be able to get married.
Posted by: Jack | Jul 9, 2009 12:53:23 PM
Agree with Chris above. In discussions with ACLU and other groups, it's clear that a bad outcome in this case would affect current beneficial marriage, civil partnership and adoption laws across the country, as well as strengthen DOMA, DADT, etc. This is a highly dangerous case and the groups involved in the intervention have worked for decades to get us the rights we currently have in the states in which we have them. this case has the possibility of unwinding all of that. So it is essential that people with this expertise be involved and listened to. Not people like Lance Black, Bruce Cohen, Chad Griffin, no matter how well-intentioned.
Matt R - you're very clever and I love your pop commentary, but it's really out of your league to opine on this.
Posted by: One who knows | Jul 9, 2009 1:01:08 PM
I'm a lawyer with some knowledge of both these issues and this case in particular. The intervention is a smart and necessary move by these groups.
During the last hearing, Judge Walker pressed Olsen to lay a foundation (i.e., enter evidence into the trial record via testimony, etc.) about the equal protection claim. In other words, the judge wants to actually address the underlying question about whether gays and lesbians have historically suffered discrimintation, and are deserving of heightened scrutiny under the 14th Amendment. Olsen balked at this, and wants to avoid having an actual trial that introduces facts, seeing it as solely a legal question.
If Olsen has his way, and if these groups do not intervene, a huge chunk of our argument will be thrown out the window, and we will be left vulnerable on appeal.
Olsen and Boies, though likely well-intentioned, are appellate lawyers who do not understand the importance of trying this particular case on its merits. Maybe there is some personal prejudice about the strength of the equal protection claim at play (it wouldn't surprise me if neither thinks gays are really deserving of heightened scrutiny on the basis of sexual orientation).
We need a party in the case who understands the facts about LGBT discrimination, who really believes in that strict scrutiny under the 14th Amendment is deserved, who knows where to get the evidence, and who knows how to rebut arguments set forth by the opposition and other witnesses.
Posted by: PM | Jul 9, 2009 1:38:54 PM
In my best Chris Crocker voice: LEAVE OLSON/BOIES ALONE! I suppport Olson Boies on this. ACLU, Lambda Legal, and NCLR, thank you for Lawrence v. Texas and everything else, but Olson & Boies are the best talent for this task. Let them do this the way they want to do it. You had your chance, and you placed your bets. You have undermined their efforts the whole way.
It is humiliating to always have to go and ask for rights guaranteed to us by Article XIV of the constitution the way the "experts" are proposing. What part of "equal protection of the laws" are we not understanding here? I don't want to have to wait for Scalia, Alito, or Thomas to die in order to get married. Kennedy will support it -- he wrote the majority opinion for Lawrence v Texas. We may even get Roberts who has to be concerned about the legacy of "his" court. And it will be fun to see Thomas, Alito, and Scalia make their convoluted minority opinion to justify continued discrimination. Let it be part of their historical record of shame.
It's time for all the A Gay nonprofit leaders who botched Prop 8 and who would have us wait another decade or more to acknowledge the failure and allow the American Foundation for Equal Rights team to make their case. Raise your pom poms from the sidelines as you see fit while you work the various states, but quit intervening. My two cents...
Posted by: Shinrai | Jul 9, 2009 1:41:35 PM
One Who Knows (even the NAME!): Forgive me if I don't thank you for your compliments on my wit, but your comment is embarrassingly elitist. You're basically saying only certain people (you, of course, being one) are really fit to have reasonable opinions on what is a very simple issue. I am capable of being wrong and I am capable of making mistakes, but one thing I am capable of over all is having an intelligent, informed opinion. Disagree with me if you like, but don't act like just because I am a pop-culture fan (in other words, I own a television and like Madonna) that means I'm some court jester to be enjoyed and dismissed. — Matt
Posted by: Matthew Rettenmund | Jul 9, 2009 1:41:57 PM
BTICH SLAP.
You been talking smack about me and now you want to be invited to my party?
The backbiting, and its flip side, log rolling, of the "National" LGBT groups is just laughable.
Don't even get me started on the diversity stuff. Mintor did not get the job because of his abilities as a lawyer, he got the job because of who he is (e.g., if you don't fit into some preordained checkbox that so many of these organizations have, you might as well just stay home).
Posted by: Qjersey | Jul 9, 2009 1:46:12 PM
We're victims because we allow it.
I say buy a gun, stop paying taxes, and let the FEDS know that you will NOT be pushed around anymore and denied what is constitutionally yours.
Exercising Constitutional Rights
http://gaytaxprotest.blogspot.com/2009/07/exercising-constitutional-rights.html
Posted by: John Bisceglia | Jul 9, 2009 1:54:39 PM
The Boies/Olson suit is a slam dunk. It only challenges Prop 8, vis a vie the two classes of relationship recognition in California. It does not challenge DOMA as the "unmarried" plaintiffs have no standing to challenge DOMA: they can't challenge the recognition of their marriage by the Fed gov't or other states because they are not yet married.
Stop fretting and let Boies and Olson do it.
IT WILL NOT GET UP TO THE SCOTUS!
It is not a Federal issue -- it only concerns the actions of California which violate the US Constituiton. No other state has gotten themsleves in the perdicament that we have in CA.
Further, the CA Supreme practically set this up in their decision this May. They could not rule on whether Prop 8 violated the US Constitution because Lambda et al did not have the balls to ask them to consider that. If they are not asked to consider that they cannot make a ruling on it.
Posted by: Chris | Jul 9, 2009 2:31:36 PM
Shinrai, the gay legal groups had nothing to do with Prop. 8 (except I guess for winning the right to marriage in CA in the first place). They have brought nothing but excellence and sound judgment to every case they have been involved with. They have been to this rodeo before and can only help Olson and Boies make the best out of a very risky case.
Posted by: Phil | Jul 9, 2009 2:37:47 PM
I'm a layman..but it looks to me that once again.. our venerable gay institutions are getting their panties in a bunch because they dont get to lead the way. From my perspective.. they have failed again and again in these issues... (they meaning our national LGBT or GLBT or LTGB whatever organizations).
Here we have a demonstrated animosity to this case and now they want in. I am glad they let out this letter.. it shows how bullheaded our organizations can be and how they aren't listening to the community at large. They know better and the rest of us should lay back and enjoy the ride.. WRONG.
It seems that the people on this case are very experienced and know their way around the courts. I am interested to see how they make out coming from such a conservative, successful background. It goes to show that HUMAN rights cross political ideologies. I dont want gay rights.. I want HUMAN rights.
Posted by: Trace | Jul 9, 2009 2:49:53 PM
"They could not rule on whether Prop 8 violated the US Constitution because Lambda et al did not have the balls to ask them to consider that."
Yes, this is what pisses me off. It was a complete botch job to focus on the narrow issue of whether Prop 8 complied with CA Constitutional Amendment rules when it was screaming out as a violation of US Constitution equal protection provisions in Article XIV. That's how Loving v. Virginia began to happen -- a CA law was ruled a violation of the US Constitution (Perez v Sharp)
Posted by: Shinrai | Jul 9, 2009 3:09:10 PM
I heard someone on the radio discussing this and saying America will have Marriage Equality by 2050....2050???? I'll be dead by then...at 90yrs old I wont give a shit about marriage/or I'll be dead.....fuck that....America should have NO problem treating all people Equally NOW!
Posted by: Disgusted American | Jul 9, 2009 3:09:54 PM
"Asking many to wait for a liberal court, is asking many to give up the fight for equality for a generation."
Waiting a year or two to file this DOMA suit isn't asking anyone to give up equality for a generation. In the meantime, we continue the incredible state-by-state progress that we've made, and we continue the rapid gains we've made in the last couple of years in public approval of our cause. The fact that gays are marrying in Iowa without the end of mankind helps us every day. We are laying the groundwork to either repeal DOMA or have it overturned, but to rush rush rush this to an overly conservative Supreme Court is just a recipe for disaster. I agree with the poster above who said it seems driven by the egos of the attorneys on the Olsen-Boies team.
Posted by: ChicagoRick | Jul 9, 2009 3:20:19 PM
Thank God some people who know what they're doing are getting involved. I am sure Olson and Boies are great lawyers, but they have never dealt with these issues before. I read their preliminary injunction motion, and it was shoddy, slapdash work. The amicus brief filed by ACLU was SO much better, solid and well argued, like pretty much every brief I've seen from these groups.
Posted by: Z | Jul 9, 2009 3:47:55 PM
Commentator 'Z' is not the first here to say that they don't trust the abilities of Olson-Boies. Would someone here care to go into greater detail as to how their legal work is deficient?
Posted by: Mark | Jul 9, 2009 4:32:13 PM
"I read their preliminary injunction motion, and it was shoddy, slapdash work."
Ummm, Z, how about an example or two to back that up? I read it too, and though I am no expert it seemed pretty clear and well done to me. There is nobody on this earth who has argued in front of the Supreme Court more than Ted Olson. He knows the personalities and he thinks he can prevail. He wouldn't pursue this otherwise. If you can't support them or simply withhold your support, at least try to make a reasonable argument against them rather than promulgating this sort of unsubstantiated BS.
Posted by: Shinrai | Jul 9, 2009 4:41:47 PM
Whether for life-saving surgery (or life-fulfilling legislation), I will place my bets on the best possible team, one that has a long record of success before the Supreme Court. Boies and Olson are part of this very elite legal world of the Supreme Court, knowing many of the justices personally. And these two guys generally don't take cases where they are likely to lose.
I feel for the other legal teams but we need attorneys that can go toe-to-toe with the Kenneth Stars and prevail. I rather be happy than politically correct.
Posted by: Joe in SF | Jul 9, 2009 5:00:37 PM
I have always thought that LGBT groups, which have dedicated decades of hard work to fight for marriage equality (including Loving v. Virginia), should play an important role in the historic Prop. 8 case in federal court. But at the same time, it is these organizations that have publicly and harshly criticized the federal case. In fact, until now they have done everything possible to distance themselves from what they deemed an ill-timed strategy that could roll back progress for a generation. LGBT groups’ concerns are legitimate, but I feel that they have not been as open-minded and welcoming about new ideas, new perspectives, new strategies, and new allies as they should have been. It is therefore perplexing why they are taking such an about-face position now. If it is not about egos or claiming credit, and if it is truly about fighting for a common cause, then LGBT groups can still make meaningful contribution as consultants. If they wish to have more (or sole) control over the trajectory of the litigation, they can and should file their own lawsuit in federal court.
Posted by: Rick | Jul 10, 2009 1:05:36 AM
Waiting anything out is a BAD option and it is unfair to ask me, my elders, and the youth growing up today and tomorrow to wait ONE MORE day before being counted as an equal in the eyes of the law. It is not the responsibility of the populous to look after our rights. Why should you expect anyone to vote for your interests in a ballot initiative?
Court is where this issue belongs. Just like most of the developments in the rights of blacks in this country it must be where lasting change happens.
Has any thought been given to the matter that maybe this group (AFER) have good reason to believe that the court will rule in our favor? Maybe the folks in Mass have the same kind of information...
Obama has left us for dead (not that Clinton wouldn't have done the same-- just as her husband did) while we are continuously trampled by our own legal system, maybe the courts are not so heartless.
Posted by: ThomasS | Jul 10, 2009 5:31:42 PM