Friday, July 10, 2009


The group that filed a federal Proposition 8 lawsuit is pushing back against LGBT organizations seeking to intervene in the case — much to the consternation of officials who say they're bringing needed voices and expertise to the table.

Lambda Legal, the National Center for Lesbian Rights and American Civil Liberties Union, earlier this week sought to intervene in the American Foundation for Equal Rights suit against Prop 8.

But in a letter dated Wednesday, AFER [American Foundation for Equal Rights] board president Chad Griffin [Chad Griffin was one of Advocate mag's "People of the Year" in 2008; Griffin was also executive producer on Kirby Dick's documentary, "Outrage."] urges the groups not to intervene in Perry v. Schwarzenegger and accuses them of having previously worked to undercut the litigation.

"You have unrelentingly and unequivocally acted to undermine this case even before it was filed," Griffin writes. "In light of this, 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."

[For the full article, see here.]

In part, Griffin wrote to the three organizations:

“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.”

[For the full article, see here.]

As I wrote to a friend of mine in slightly edited form:

It's very difficult to determine not only the best way to proceed, but the very truth of the matter: namely, the motivation for the suit in the first place. From the very beginning I was worried as to why Theodore Olson, who was on the Board of Directors of The American Spectator, a conservative publication, and attended the first meeting of The Federalist Society, whose purpose is, "To promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be," all of a sudden be interested in same-sex marriage rights.

I'm disturbed by the apparent opportunism of the LGBT rights organizations who are seeking to jump on this bandwagon; I'm equally disturbed by the specter of there possibly being an end run around same-sex marriage rights by the suit in the first place, with the intent to doom it to failure by both Olson and even David Boies.

If two progressives with a track record affirming equal rights were pursuing the suit, I'd be more strongly in favor of it. As it is, I'm truly ambivalent about its timing. Such a suit needs to be prosecuted, but the question as to who is prosecuting it and its timing is cause for some concern.

Moreover, with the current and foreseeable future composition of the U.S. Supreme Court, I'm not sanguine that we can win in that arena, and that could possibly be the motivation behind the suit and its timing.

Regarding Boies, while in College of the Redlands he was President of the Young Republicans club. People, of course, can change, but this fact shouldn't go unnoticed.

Larry Kramer, for whom I have a great deal of respect, had the following to say about this issue:

"I implore your three organizations... to not interfere with the Olson/Boies case".... "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."
[See here.]

The three organizations might well be spoilers that seek to jump on this bandwagon in order to be better able to gain needed credibility as well as be in a better position to solicit contributions and, hence, gain revenue from their constituents; it's also not inconceivable that Olson and Boies might well be spoilers who are placing same-sex marriage on the fast track knowing full well that the conservative U.S. Supreme Court might very well find against them.

Or, things might well be as they appear: Olson and Boies might well be offended at the denial of equal marriage rights for Gay people, and the three LGBT rights organizations might well want to add their collective expertise in prosecuting this case along with the original attorneys who don't have the expertise in dealing with LGBT rights that the attorneys for the three organizations possess.

Frankly, although I hope the second scenario is the correct one, I'm truly ambivalent about this turn of events, save to say that equal rights is a constitutional issue that must be solely within the purview of the Judiciary, and tyranny of the majority at the ballot box has no place in determining the civil rights of any minority group, as we saw with the Prop 8 debacle in California, and its equally unconstitutional cousin in Maine.

If the original attorneys prosecuting this case were long-standing LGBT civil rights attorneys, I'd feel much better about this whole issue and its timing. However, since Olson and Boies began this process, I see no reason why these three organizations can't be consultants to them, and not be even perceived to be in the position of being mere hustlers and spoilers!
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Here's my take on the Olson/Boies controversy: Lambda Legal and other established Gay groups bungled the Prop 8 appeal by failing to cite the US Constitution. Then they refused to even consider appealing the case to a Federal court. Worst of all, they disrespected Gay Californians by telling them to put their Civil Rights up for public vote. Two frustrated Gay couples asked Ted Olson and David Boies to do what the Gay legal establishment would not do. They had no choice but to go elsewhere for help. Because they did, we've got two of the most respected attorneys in the nation taking up our cause, and their statements on our behalf have been so eloquent, even Larry Kramer is inspired. Olson and Boies' Republican backgrounds don't bother me. Who better to challenge Conservative justices than Conservative litigators? Only allying ourselves with Democrats will take us just so far and no farther. Like it says in the Dallas Principles, equality is a non-partisan goal! We can agree with certain Republicans on Gay Rights even as we clash with them over other topics (and lest we forget, there are lots of Gay Republicans out there). I don't think the current composition of the Supreme Court justifies inaction, either. SCOTUS is about as liberal now as it's ever going to be. We will not see another Warren Court in our lifetimes! President Obama's nomination of Sonia Sotomayor underscores the new political reality in Washington: Democrats only seat moderate-to-conservative judges anymore. From now on, there'll always be some question as to how their appointments will vote; but if we only want justice if it's a sure bet, we don't want justice very much, and not wanting justice very much is worse than not wanting it at all. Frankly, I'd rather see marriage equality outlawed than continue with this multi-tiered, discriminatory status quo where Gay spouses in certain states settle for limited recognition under the law and the rest of us are shut out. When everybody's sitting in the same leaking boat, everybody's equaly invested in rowing toward shore!

Jerry Maneker said...

Thanks for this beautiful, eloquent, comment, Don Charles! You make great points, and I agree with you! Best wishes, Jerry.