Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

Jim Burroway

July 8th, 2009

My first reaction on learning that Attorneys Theodore Olson and David Boies were filing a lawsuit in federal court to challenge the constitutionality of Prop 8, I was cool to the idea. But now with two other lawsuits from Massachusetts which are also challenging the Defense of Marriage Act, as well as the frustrations many of us are feeling over the distinctly unfierce advocacy taking place in Washington, I’ve changed my mind. I’m glad that Olson and Boies are going forward.

That said, I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.

These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. They seem to have warmed to the idea, much as I have.

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olson and Boies oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing. They shouldn’t have to contend with three other outside groups with differing agendas who think they know better on how to try the case — especially when their first stab at knowing better was to publicly denounce the lawsuit to begin with.


July 8th, 2009

seriously, that’s the best you can do in terms of a response?

have you looked at their papers? these groups are not unequivocally in support of this case.

they’re trying to maximize the chances of success, and minimize the catastrophe that might occur if we lose.

they are actually beholden to the LGBT community — how is that a bad thing, again?


July 8th, 2009

If you think this suit is about the individual clients, have I got a Governor hiking in Appalachia for you…

Unfortunately, your theory of litigation is contradicted by the very idea that the federal rules of civil procedure allow for intervenors.
The whole point of intervenor status is when some parties have interests that may be different than that of the individual plaintiffs. If the plaintiffs were seeking relief that would only affect them, that would be one thing. But here, 4 plaintiffs have chosen to sue in a case that adjudicates the rights of all LGBT Californians, and could possibly shape the rights of all LGBT Americans.
Notably, if 4 other plaintiffs wanted to sue with Lambda, for example, as their lawyers, that case would be consolidated with this one.

The groups seeking to intervene have actual litigation experience on gay rights issues, as opposed to Boies and Olson, who did not even have views on these issues.

Lindoro Almaviva

July 8th, 2009

These 3 groups were the first ones to throw stones when the lawsuits were announced because the plaintiffs and the lawyers failed to ask for their permission. Furthermore, they criticized the move as if to say that they were the only ones who knew, and had a copyright on when should this type of action should be started.

Now they want to jump in the bandwagon mostly for 2-3 reasons:

1. Their failure to bring out any real change, and their failure to be a true voice for gay people in the administration.

2. The perception by the LGBT community that they are no longer working for the community but for their own welfare.

In summary, the perception among the LGBT community that these organizations have become part of the establishment and thus no longer effective. When your constituents believe that you have gone to bed with the ones you are supposed to be watching, your ability to be effective is greatly challenged.

I see their move as a political move, as an attempt to regain respectability in the LGBT community and more importantly to regain currency in the community.

I told the HRC I was not going to give them money when they called me 2 weeks ago and specifically mentioned their actions in the past 3 months as the reason why i was not renewing my membership. Surely i am not the only one here.

K in VA

July 9th, 2009

The GLAD case in Massachusetts, plus the case the state filed yesterday, have a far, far greater chance of success, thereby taking a step forward toward full equality later. These are smartly conceived, surgically targetted cases that could begin the process of dismantling DOMA.

The Olson-Boies case (because — let’s face it — the case is really about two prominent lawyers more than their clients) could, I’ll agree, be a huge victory. But, given the conservative Federal courts today and for years to come, the case is likely to go down. Olson and Boies will still be wealthy, hot-shot lawyers if that happens. But our cause will have been set back for years to come (and I’m not just talking about marriage: if they lose, adoption and foster parenting will probably lose as well, and so will general momentum toward other rights).

The three smart groups wanted a larger role in California because they hoped to focus the case on potentially winnable issues and downplay the big losers. They’re right.

Bill in IL

July 9th, 2009

Lindoro –

You seem to be conflating HRC (who I agree, are highly ineffective) and these three legal groups who, along with GLAD, are responsible for almost all the legal progress LGBT folk have made recently.

I just think that it’s the height of arrogance for two straight guys who are gambling with the future of all LGBT folk to tell our legal groups that they don’t want our help. Really?

If the groups don’t get let in, and Olson/Boies lose, THEIR marriage licenses should be revoked.


July 9th, 2009

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing.

But this isn’t really a case or controversy between two private parties. It’s impact litigation, intended to change the law across the nation, and the adversarial process is kind of an odd system for impact litigation. Intervention rules and amicus briefs are designed to address that weakness.

But I’m glad to see you’ve come around to supporting this lawsuit.

Lindoro Almaviva

July 9th, 2009


What does that mean? Why can’t a straight person litigate a case for a gay person? Since when are black lawyers doing black cases and Hispanic lawyers doing immigration cases?

Sorry, but I have to disagree with your view there.


July 9th, 2009

Lindoro Almaviva, these 3 groups are the ones who won marriage in California and Iowa and who are responsible for every other major victory our community has ever had in the courts. They have brought about “real change” for decades. I think you have a legitimate beef with HRC and those types of lobbying groups, but the legal groups are completely different. We should be welcoming them. It’s great to have Ted Olson as the front man, but this case is really high stakes and very risky for everyone in our community. I for one am happy to have people who have done all the previous marriage cases involved.

Priya Lynn

July 9th, 2009

That Boies and Olson don’t want these successful groups involved further suggests to me that they’re in this to lose and set back the equal marriage cause as far as possible.

Jason D

July 9th, 2009

I’m glad they don’t want their help. Those 3 were quick to attack the case, and provide no reasoning why they have changed their mind — other than to piggyback on the success and say “see, we did that, too.”

I’m all for them trying to provide support and help, but to try to insert themselves into the case they originally opposed (the case hasn’t changed, btw) is pure coat-tail riding. Seems they don’t want to be shown up by 2 straight men.

Priya Lynn

July 9th, 2009

I’m glad they don’t want their help. Those 3 were quick to attack the case, and provide no reasoning why they have changed their mind — other than to piggyback on the success and say “see, we did that, too.”

This is a long way from a success at this point. If they were sincere about wanting to win they’d take all the support they could get.

Kevin Kaatz

July 10th, 2009

I’m not sure why it matters who joins the case and when. What matters is that we win, or at least have a good chance at winning. Attacking these three groups because they ‘saw the light’ a bit later doesn’t make any sense–nor is it going to help the cause.

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