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Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

Jim Burroway

July 8th, 2009

The American Foundation for Equal Rights has released a letter they wrote to the National Center for Lesbian Rights, Lambda Legal, and the ACLU of Southern California, asking the three groups not to intervene in the Boies and Olson challenge to California’s Prop 8 in federal court.  They recounted the many ways in which the three groups had previously opposed the lawsuit and raise a very legitimate concern now that those groups want to enter the lawsuit on the side of the plaintiffs:

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution…. Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

The letter provides an interesting detail surrounding the amicus briefs filed in the case calling for Prop 8 to be declared unconstitutional. According to the letter:

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

The letter also details several instances in which the Boies and Olsen team and AFER reached out to the three groups. After all that, AFER says that they “remain willing to work closely” with them, but not as co-council:

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. 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. … Delaying equal marriage rights in California serves none of our interests.

[Hat tip: Rex Wockner]

The Letter from AFER to NCLR, Lambda Legal, and the ACLU

July 8, 2009

Kate Kendell
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102

Jennifer Pizer
Lambda Legal
Western Regional Office
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010

Mark Rosenbaum
ACLU of Southern California
1313 W. 8th Street
Los Angeles, CA 90017
Dear Kate, Jennifer and Mark:

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 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.

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution. Your strident criticism of our suit has been constant:

  • May 27, Joint Statement from ACLU, Lambda, NCLR and Other Organizations
    “Now that the California Supreme Court has refused to strike down Proposition 8, we need to go back to the voters. Since we lost Proposition 8 just six months ago, and since a ballot initiative to repeal is likely to require a huge investment in time and money, it is tempting to at least try a federal lawsuit first. But it’s a temptation we should resist.”
  • May 27, The Advocate
    “‘This is an attempt to short-circuit the process, to go all the way to the end….To us, that seems like a lot of risk for a long shot when we know that if we worked to establish more of the predicates, we could do this and not be taking such a big risk.’” (Matt Coles, ACLU)
  • May 27, New York Times
    “‘We think it’s risky and premature,’ said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles.”
  • May 27, New York Times
    “‘Federal court. Wow. Never thought of that.’” (Matt Coles, ACLU)
  • June 26, Associated Press
    (Within a story on the filing of the ACLU, Lambda and NCLR amicus briefs): “ACLU attorney Matt Coles said the groups filed their arguments reluctantly because they still believe federal court is the wrong forum for their fight.”

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

Despite your well-publicized hostility toward filing suit in federal court, we actively sought out your advice and counsel, and have incorporated it on many occasions. We value your leadership, experience and expertise on the issue of marriage equality. Thus, from the outset, we have sought to stand together with you, shoulder to shoulder, in this battle. Some examples:

  • In the fall of 2008, a representative from what would become AFER spoke to Paul Smith, cochair of Lambda Legal’s board of directors, and asked him to play a role in the case. He declined.
  • In May 2009, an AFER board member discussed the case in New York with Jon Davidson of Lambda Legal, asking for Lambda’s involvement. Several days later, AFER board members had a conference call with Lambda in which we again asked for Lambda’s involvement.
  • On May 14, 2009, a meeting was held in the home of an AFER board member with Ramona Ripston and Mark Rosenbaum of ACLU, and Jennifer Pizer and Jon Davidson of Lambda. Both groups declined to participate in the case and urged AFER to cease its efforts.
  • On June 2, 2009, Theodore Olson and other members of the legal team spoke with and solicited the input of Kate Kendell and Shannon Minter (NCLR) via conference call.
  • On June 8, 2009, Kate Kendell and Shannon Minter actively participated in a lengthy strategy meeting with our legal team at the Los Angeles offices of Gibson, Dunn & Crutcher.
  • On June 9, 2009, members of the legal team solicited the input of Jennifer Pizer and Jon Davidson of Lambda Legal via conference call.
  • Representatives from Lambda Legal, ACLU and NCLR were invited to participate in a moot court exercise scheduled to take place in San Francisco on July 1, 2009 in advance of the first court hearing in this case.
  • When the moot court was delayed due to an order by the Judge, representatives of Lambda Legal, ACLU and NCLR participated in a conference call where we discussed the order and potential next steps.
  • That call was followed by two subsequent calls that afternoon to discuss how to further integrate Lambda, NCLR and ACLU.

Regrettably, you embarked on a public and private campaign to undermine our efforts to vindicate the federal constitutional rights of California’s gay and lesbian residents. We nevertheless remain 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. 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. 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.

Delaying equal marriage rights in California serves none of our interests.

Again, we continue to welcome your input and advice as we move forward in this case. We look forward to working with you to resolve this issue and bring the focus back to the constitutional issues at hand.

Sincerely,
Chad H. Griffin
Board President

Comments

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Lindoro Almaviva
July 8th, 2009 | LINK

Bravo!

As I said in the last post, these organizations are battling the perception that they have become part of the problem by embracing the status quo. Now they are making desperate attempts to jump in the wagon so they get credit if this lawsuit is successful.

I say they had their chance and wasted it, now it is time for fresh blood to take a stab at it.

timothy kincaid
July 8th, 2009 | LINK

sadly, i suspect that the groups seeking to intervene are well aware that their involvement would delay and drag out the process. in fact i would not be surprised if that is the motivation behind their effort – an attempt to delay the case long enough for either the constituency of the court to change or for prop 8 to be reversed by vote and therefore invalidating the case.

Bill Herrmann
July 9th, 2009 | LINK

There’s nothing I can add to the two previous comments – I agree wholeheartedly with them; they express my thoughts completely. But I still feel compelled to add a comment, to say something about these groups which have drug their feet too long on important matters while sucking up to the establishment only to get mere crumbs of cocktail parties and relocation reimbursements.

KipEsquire
July 9th, 2009 | LINK

I’m still quite ambivalent (i.e., not entirely hostile) to the Olson/Boies lawsuit.

Having said that: Every LGBT legal victory of any significance whatsoever has been at the hands of Lambda Legal. Every single one. To call them “part of the problem” is to display a total — TOTAL — ignorance of the issue and of history.

Meanwhile: intervention is a matter of right. You either have a legal right to intervene or you don’t. What the original parties may favor or oppose is totally irrelvent.

By the same token, a merit brief is known as an amicus curiae — “friend of the COURT.” It says nothing about being a “friend of the plaintiff.”

Burr
July 9th, 2009 | LINK

Agreed. I don’t understand the smearing of LL. While they may be late to the party, they are a valuable resource.

I’m not too concerned about the process as long as we get some passionate and effective advocacy.

The Letter To NCLR, Lambda & the ACLU and Their Response « Law Dork, 2.0
July 9th, 2009 | LINK

[...] not previously been discussed.  But, as Rex Wockner had apparently received it and sent it on to Box Turtle Bulletin, which had republished it there, I removed the “exclusive” headline to prevent [...]

tristram
July 9th, 2009 | LINK

KipEsquire asserted that: “Every LGBT legal victory of any significance whatsoever has been at the hands of Lambda Legal. Every single one.”

That gives GLAD (not to be confused with GLAAD) somewhat short shrift. They have won a few court cases, including one called ‘Goodridge’ that some consider significant. Not to diminish the accomplishments of LL (for which I have great respect).

Mike Airhart
July 10th, 2009 | LINK

The mess in California is due, in part, to Equality California recklessly pursuing an arrogant campaign without seeking the support of a diverse and experienced corps of peers around the state.

It now seems that Boies and Olsen are doing the same — rejecting the high-caliber experience and smart legal reasoning of the three groups. Faced with conservative federal courts, solid precedents must be established before the arguments made by Boies and Olsen will have sturdy foundation to stand upon.

Mike Airhart
July 10th, 2009 | LINK

So B&O have hired political consultants to smear the three successful GLBT organizations.

From the Washington Post:

In a letter to the legal groups sent Wednesday, board president Chad Griffin, a Los Angeles-based political consultant, said the show of solidarity was coming too late since the same groups originally criticized a federal civil rights claim as premature.

“You have unrelentingly and unequivocally acted to undermine this case even before it was filed. Considering this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening,” Griffin said. “Therefore, we will vigorously oppose any motion to intervene.”

Griffin’s behavior on behalf of B&O is territorial and childish — not at all constructive.

Timothy Kincaid
July 10th, 2009 | LINK

So B&O have hired political consultants to smear the three successful GLBT organizations.

Griffin is not a “hired political consultant” of Olson and Boies. He is the organizer and originator of the lawsuit and the head of AFER.

He is the one who originally contacted Ted Olson.

BobbiCW
July 10th, 2009 | LINK

When this lawsuit was first announced I was dumbfounded. Whoever heard of straight lawyers fighting FOR our rights? It was inconceivable! I didn’t trust them and was, in fact, suspicious of them and their motives. And given that one of these lawyers actually fought for Bush I was willing to believe that they waded into the Prop 8 mire with the sole purpose of setting back equal marriage for decades.

Although the groups who had been fighting for us for years never said it specifically, I assumed that they felt the same way I did. I was happy that they were doing everything possible to stop the lawsuit in its tracks.

Zoom ahead to today and the growing suspicion that B&O might, just might, actually be on the level. If that’s really the case then I want the groups who know the most about the subject helping.

I realize that it looks to B&O like we’re jumping on the bandwagon. But it seems to me like they’re ignoring the reality we’ve lived with for centuries — straight lawyers have never had our best interests at heart. They are looked on as the enemy…for good reason. And it takes time for any straight lawyer with a good heart to overcome that perception.

Now they’ve got their back up and are willing to cut off their noses out of spite. They need to walk a mile in our shoes.

The Letter To NCLR, Lambda & the ACLU and Their Response
July 12th, 2009 | LINK

[...] not previously been discussed.  But, as Rex Wockner had apparently received it and sent it on to Box Turtle Bulletin, which had republished it there, I removed the “exclusive” headline to prevent [...]

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