Law Dork on Olson-Boies "Turf War"

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."

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.

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Judge Wants to Expedite Trial in Federal Challenge to Prop 8

A federal judge hearing the Olson-Boies challenge to California's Proposition 8 indicated he's unlikely to issue an injunction that would have allowed same-sex couple to immediately begin marrying again, but also indicated he's eager to expedite the case:

"In his first response to the lawsuit challenging Proposition 8, Chief U.S. District Judge Vaughn Walker of San Francisco said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment...Olson and Boies asked Walker to issue an injunction at a Thursday hearing that would suspend Prop. 8 and allow same-sex couples to marry while the case proceeds. In Tuesday's order, the judge said he has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure. Halting enforcement of Prop. 8 at this stage 'may inject still further uncertainty,' Walker said. He noted that any couples who married as a result of an injunction would be unclear about their status until a final ruling. The judge said lawyers at Thursday's hearing could discuss how the case should proceed. Olson said he was pleased with Walker's approach, even though the ballot measure will remain in effect."

Also: "Walker said in his order...that past discrimination is relevant in evaluating a law that limits the right to marry. A related issue, he said, is 'whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians.' He said opponents of same-sex marriage may also need to present evidence to justify their arguments that children are best raised by a married mother and father, and that allowing gays and lesbians to wed 'destabilizes opposite-sex marriage.'"

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