Aug. 10—Controversy over conservative Ted Olson's lawsuit against Proposition 8 escalated this month, with Olson's legal team arguing against allowing gay groups to participate in the lawsuit.
In a brief filed Aug. 7, Olson's team argues against allowing a coalition of gay organizations to serve as intervenors, saying—among other things—that they have been "unwilling to say that they actually support [ the ] effort to vindicate their rights in this lawsuit."
The lawsuit, Perry v. Schwarzenegger, was filed in federal court in San Francisco in May on behalf of two same-sex couples. It charges that California's Proposition 8 violates the U.S. Constitution's explicit guarantees to due process of law and equal protection of the law.
A group of gay legal and political groups initially issued a statement warning against "premature lawsuits," saying they could lead to an "ill-timed" decision from the U.S. Supreme Court that could set back the movement toward equal marriage rights for same-sex couples.
But one month later, three of those same groups—Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights and the Lesbian & Gay Rights Project of the ACLU—filed a friend-of-the-court brief in support of the Perry lawsuit. The three gay legal groups represent three San Francisco gay organizations and, in July, asked to participate in the lawsuit as intervenors.
In a lawsuit, an intervenor is a person or group who is not named as plaintiff or defendant but who will be significantly affected by the lawsuit's outcome. If the court approves a person or group to become an intervenor, that person or group becomes a third party to the lawsuit, supporting either the plaintiff or defendant's position. As such, they have certain rights as party to the lawsuit. ( Otherwise, outside parties are limited to filing friend-of-the-court briefs expressing their personal interest or expertise on a matter within the lawsuit. )
Olson's team submitted a brief Aug. 7, opposing the gay groups' request to intervene. It also opposed, though less heartily, a similar request by the City of San Francisco, as well as a request by a group supportive of Proposition 8—the latter in favor of defendants.
Olson's team argues that the gay groups will not assert any argument that the plaintiffs' legal team is not already willing to assert. And the team suggests the gay groups submit friend-of-the-court briefs instead.
More importantly, the Olson brief argues that the gay groups have spoken out against the Perry lawsuit and have been "unwilling to say that they actually support Plaintiffs' effort to vindicate their rights in this lawsuit."
Their involvement as intervenors, says the Olson brief, will delay the case.
In its brief seeking to intervene, the gay legal groups argue that they represent "many members [ who ] intend to marry their same-sex partners" and that the court's ruling on Proposition 8 "may unquestionably directly impair or impede" their ability to marry as well as their options for "seeking similar relief in subsequent litigation." They also argue that their "extensive experience and expertise…in litigating the very factual issues" before the court would make them of "great assistance to the parties and the court…."
Initially, the Olson team welcomed support from the gay groups and reportedly held a number of conference calls and meetings with them. In a June 26 press release, the American Foundation for Equal Rights, a new group formed to support the Perry lawsuit, issued a statement saying it was "pleased" to have the groups' friend-of-the-court brief.
But with the request to intervene, says the Olson brief, the gay groups and attorneys are questioning the "adequacy of [ plaintiffs' ] counsel"—that is, Olson and his legal team. To that, says the Olson brief: "Lawyers, no matter how experienced or well-meaning, should not be permitted to use intervention to involve themselves in litigation where the parties have chosen to retain other counsel."
In fact, the Olson team includes at least two openly gay attorneys: Sarah Piepmeier and Enrique Monagas. Both have been active in LGBT groups and both are married to same-sex spouses. Monagas has a two-year-old child.
Shannon Minter, legal director for NCLR, says it's "time to put aside any past disagreements and work together to present the very best legal arguments and the strongest possible factual record."
"We have much respect for the plaintiffs' attorneys and look forward to working with them," said Minter.
Minter said the gay groups "wholeheartedly agree with the existing plaintiffs that Prop 8 is unconstitutional, and we want to do everything we can to help win the case."
A federal district court judge in San Francisco is expected to rule on the motions to intervene Aug. 19. He will also take up the matter of holding a trial in the lawsuit. That, too, is a matter of some controversy.
The Olson team is urging the court to hold a full and public trial to create a "complete factual record" on all the relevant issues. That includes such matters as whether LGBT people are politically powerful or weak and examining the legitimacy of the motives behind denying marriage licenses to same-sex couples.
Olson's team likens the lawsuit challenging Proposition 8 today to the lawsuit challenging Colorado's Amendment 2 in 1993. A federal district court in Denver heard three weeks of testimony in that case, Romer v. Evans, challenging the constitutionality of a ballot measure that sought to deny LGBT people the protection of anti-discrimination laws. The case ultimately went to the U.S. Supreme Court that rendered the landmark 1996 decision striking down initiatives based on "animus" against gays.
"Given the importance of the issues presented by this case and the likelihood that, regardless of the outcome, it will be reviewed on appeal, this Court should conduct a full trial on the merits as to all disputed facts," stated the Olson brief.
The Olson team's brief says it intends to delve into who was behind the Proposition 8 campaign, how the campaign formulated its arguments, and "the role of animus" toward "gay and lesbian individuals."
©2009 Keen News Service
