Alex Blaze

The big gay legal turf war

Filed By Alex Blaze | July 13, 2009 6:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: 14th Amendment, ACLU, American Foundation for Equal Rights, David Boies, Diane Schroer, gay marriage, gay straight alliance, lambda legal, LGBT, marriage, marriage equality, NCLR, Prop. 8, same-sex marriage, sonia sotomayor, Ted Olson

It'd be hard to say that the Boies and Olson case got more strange last week with their cold response to several LGBT legal groups' motion to intervene, but there really isn't anything new about these sorts of turf wars among orgs. In this case, it's an org that hired straight lawyers and has a mostly-straight board litigating a case on same-sex marriage and trying to keep LGBT groups out, which is different, but not entirely unpredictable. To me, it sounds like they wanted a cookie and a round of applause from every queer in America and are bitter they didn't get it.

Or at least their statement implies that considering how much it focuses on public statements the LGBT orgs made against this case and how little ink it spends on substantive reasons to oppose the motion to intervene. Is the American Foundation for Equal Right, which is litigating this case, really saying that they think NCLR, ACLU, and Lambda Legal will try to lose this case? Considering the fact that they're actually dependent on the LGBT community for funding and are made up of queer people whose rights are on the line, I'd say they are much more accountable to the community and therefore would have more of a reason to try to win. If AFER loses, then it's "Gee, that's too bad" and on to another cause for its high-profile backers to clumsily insert themselves into.

Chris Geidner has more on the substance of the turf war:

In June of this year, however, the letter states that representatives of all three groups -- including Kate Kendell and Shannon Minter from NCLR -- participated in meetings and/or conference calls to discuss case strategy and/or "how to further integrate" the groups into the lawsuit. And, on June 25, the ACLU, Lambda and NCLR filed an amicus brief in support of the challenge, although Griffin's letter claims that even the characterization of their filing as being "supportive" of the brief prompted disagreement from Jennifer Pizer of Lambda. Pizer, the senior counsel and director of Lambda's National Marriage Project, said in an interview of the comment, "It just leaves me scratching my head a little bit." She said that Griffin had been "delighted" by the filing of the amicus brief and that her concern about the word "support" was that it mischaracterized the purpose of the friend-of-the-court filing: "It's not an endorsement of what's in [the initial Olson-Boies] brief; it's a complimentary presentation."

Then, on Wednesday, as reported here, the three groups filed a Motion to Intervene on behalf of three other groups -- Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays -- asserting that the Plaintiffs selected by AFER to bring the case "may be inadequate" to protect the interests of all people negatively impacted by Proposition 8.

At some point on Wednesday, although it is not clear when, AFER Board President Griffin sent the letter to representatives of NCLR, Lambda and the ACLU. The letter, as noted by the Post, declared that AFER "will vigorously oppose any motion to intervene." Later in the later, Griffin goes into more detail about the reasons why AFER will oppose the intervention filed on Wednesday by the ACLU, Lambda and NCLR. He wrote:

Your intervention 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. . . . 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.

This, of course, runs counter to the arguments made by the three groups, which was that the diversity of the proposed intervenor groups would provide the court with additional facts to place in the record about the harm done to Californians by Proposition 8 that could not be presented by the current Plaintiffs. Pizer, from Lambda, said the concerns about delay were unwarranted and the Lambda is "committed to an efficient but complete presentation of the case."

The reaction from the gays that I've seen so far has been rather dismissive, saying that these groups have botched everything up, that they're incompetent, and that they haven't won marriage nationally yet, so why not let someone else try.

They seem to forget that some of this movement's biggest victories have come from the judicial branch, with these groups (along with GLAD) being at the forefront of those battles. Lambda Legal won, among other things, New Jersey civil unions, marriage in Iowa, Lawrence v. Texas (arguably the most important gay legal victory at the federal level), and Taylor v. Rice (which ended the ban on seropositive workers in the State Department). ACLU, which only does part of its work in LGBT rights and has done more to increase freedom of speech, limit executive power, and fight for civil liberties of all people than any other legal organization in the US, won Romer v. Evans (the first LGBT Supreme Court victory and relevant since the Supreme Court overturned a referendum in Colorado in it), overturned the Florida gay adoption ban, won a half-million dollar victory in Diane Schroer's Library of Congress discrimination case, and has won numerous cases involving gay-straight alliances in schools, including the famous East High Gay/Straight Alliance v. Board of Education case. NCLR is most famous for their litigation that resulted in marriage in California, but they've also fought and won many lower-profile cases, including one of the biggest victories for transgender parenting rights in Michael Kantaras's case.

So while I understand the impatience around these issues, these organizations shouldn't be declared incompetent simply because the Supreme Court hasn't already ruled in favor of same-sex marriage. AFER has yet to rack up any wins under their belt as they were just formed around this issue, and Boies and Olson themselves, as far as I know, have never argued, much less won, a gay rights case. Being a lawyer, as I understand it, doesn't endow someone with specific knowledge in all areas of the law, and these organizations collective experience, as well as their desire to provide the appellate court (and this will be appealed) with what Geidner described as a "robust factual record" is not something to scoff at. I can understand the plaintiff's desire for this to be quick and easy, but unless there's a big change in the composition of the Supreme Court, this win will be anything but easy.

As I've posted before, this case will get to the Supreme Court if it is to be a victory for our side. And that won't be easy. Yes, their arguments are logical and completely believable and, in a sane world, would win the case. But we don't live in a sane world, and we don't have an unbiased Supreme Court. In case it needs to be spelled out, the "liberal activist judges" meme of the past 40 years was a myth used as a tool to advance a philosophy of what can only be described as conservative judicial activism. E.J. Dionne wrote in the Washington Post this morning about how Sonia Sotomayor's confirmation hearings, in which conservatives will say that the, by all credible accounts, restrained and centrist judge is a radical judicial activist, thus moving the Overton Window to the right. Dionne provides an example:

The justices had before them a simple case, involving a group called Citizens United, that could have been disposed of on narrow grounds. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign-finance law for a movie critical of Hillary Clinton that it produced during last year's presidential campaign. Citizens United says it should not have to disclose who paid for the film.

Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

What the court was saying was that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley Act banned independent expenditures by both corporations and labor unions.

Ben Buchwalter has more on the Court's decisions from this past session that show its true colors:

District Attorney's Office v. William Osborne (pdf)
The Upshot: In a 5-4 decision, the Court ruled that death row inmate William Osborne could not challenge his conviction with DNA technology invented after he was jailed. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said he was disappointed that the "narrow Supreme Court ruling denied access to post-conviction DNA testing for a defendant who wanted to prove his innocence."

Prove no evil: In his dissent, Justice Stevens criticized Roberts' ruling: "for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all."[...]

Jack Gross v. FBL Financial Services (pdf)
The Upshot: The court ruled in a 5-4 decision that Jack Gross cannot use the "mixed motive" theory to prove age discrimination in his unlawful termination suit against his former employer. Instead, wrote Justice Clarence Thomas for the majority, Gross would have to prove that age was the only reason he was fired. This will undoubtedly make it more difficult for employees to prove age discrimination.

Read no evil: Writing for the dissent, Justice John Paul Stevens argues that "most natural reading" of the statutory language "proscribes adverse employment actions motivated in whole or in part by the age of the employee."

More such cases are described at the link above, but it's becoming clear that this isn't a court that is self-motivated to protect equal rights and that has been willing to let its personal biases and experiences interfere with an impartial application of the law. Because those personal biases swing conservative, though, conservatives and the media establishment have been all too happy with the results. But John Roberts's silliness about umpires aside, it's looking to outsiders that the judges are coming at these cases from a perspective that is too far removed from where we hope they'd be to rule in favor of same-sex marriage at the federal level. Yes, we're "right," but these lawyers are going to have a hard time convincing these folks of that fact.

I was and remain pessimistic about this particular case, as the LGBT legal orgs are. But it's obviously going forward, and the worst outcomes of this case only happen if they lose and set a bad precedent that erodes LGBT rights and prevents future court victories at the state-level. If these organizations can help make the arguments presented and the factual evidence more complete and harder to ignore, then they should be helping out instead of being kept out by a couple of straight lawyers who peed in a circle around this case.


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I see a failure to mention the LGBT orgs' refusal to participate when AFER extended them an invitation.

I also see a failure to explore as to why these organizations decided to do a 180 now and support the case. Such little time elapsed hardly justifies such a sudden change in support for this case.

The person to worry about in this court appears to be Kennedy.

No failure, that info's included in the first blockquote.

And I don't think that they've done a 180. The case is a bad idea, but it'll only have negative consequences if it fails. If they're going to go through with it, they should argue the best case they can. It's not a great choice strategically, but everyone has a right to bring a case before a court, whether or not some LGBT org approves. And, as Chris Geidner pointed out, the orgs have been strategizing on this since at least June.

I don't think there's much to worry about with Kennedy. I'm fairly certain he'd go with the conservatives on this one, although I'd love to be surprised.

But why not mount the case from the get-go? Why not extend to the team their initiative to join in the case from the beginning, instead of foolishly thinking that they could intimidate AFER out of trying this case?

It just seems to me like they reacted too late.

Now it's just crossing my fingers that Scalia gets cardiac arrest, and that Clarence Thomas gets stabbed out of jealousy by whatever assistant he's banging now.

I don't really know what's up with the wait, at least in terms of this motion, although I'm leaning against thinking that anything nefarious is involved.