by Rex Wockner
The American Foundation for Equal Rights, the group challenging Proposition 8 in federal court with superstar attorneys Ted Olson and David Boies, is strongly opposing an attempt by the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights to intervene in the case.
In a scathing July 8 letter to the groups, AFER Board Chair Chad Griffin wrote: "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. ... (W)e 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."
Besides being teed off about that, Griffin also said the groups' proposed intervention will slow the case down.
"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."
In a press release, the three legal groups -- which have a history of fighting for same-sex marriage only on the state level -- said they want to intervene on behalf of the Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays in order "to illustrate for the court the diverse needs of their members and the ... LGBT community generally to provide the full factual record Judge Walker said will help the appellate courts as they decide whether LGBT people in California have the same basic rights as the Golden State's heterosexual population."
But for Griffin, it seemed to be a matter of too little too late. In his letter he quoted hostile and snarky public remarks from leaders of the three groups, who have called the Olson/Boies suit "a temptation we should resist," "an attempt to short-circuit the process" and "risky and premature."
He also quoted Matt Coles, director of the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project, as telling The New York Times: "Federal court. Wow. Never thought of that."
Griffin said the groups' hostility came despite multiple attempts by AFER to bring the groups into the case earlier in the project.
The groups have opposed the Olson/Boies suit -- and, in reality, still do -- because they fear the U.S. Supreme Court is not ready to let same-sex couples marry.
AFER disagrees, saying that the U.S. Supreme Court has already said, in the Colorado Amendment 2 case in 1996, that governments cannot deprive a single class of citizens of constitutional rights for no purpose other than animus and moral disapproval.
In that ruling, the court said Amendment 2, via which Colorado voters banned Colorado governments from enacting gay rights laws, was unconstitutional because it "seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
AFER, Olson and Boies say Prop 8 does exactly the same thing. They also have cited other U.S. Supreme Court precedents to bolster their case, including Lawrence v. Texas, the 2003 case in which the court struck down all remaining state bans on gay sex, and Loving v. Virginia, the 1967 case that banished all remaining state laws against interracial marriage.
Should Prop 8 be struck down, the ruling also could extend to 30 other states that, like California, have amended their constitutions to ban same-sex marriage. Six states have legalized same-sex marriage.
In the end, the Olson/Boies case could be both risky and legally sound. One key question is whether the U.S. Supreme Court would be willing to issue a ruling consistent with the Amendment 2 case if that meant effectively legalizing same-sex marriage in all 50 states. Or, if the court opted for a narrower ruling, whether it even would be willing to set the precedent of re-legalizing same-sex marriage only in California.
Meanwhile, in related groundbreaking news, Massachusetts sued the federal government July 8 over the Defense of Marriage Act, under which the federal government refuses to recognize married gay couples as married and treat them as such.
The state said the federal law interferes with states' right to define marriage, is overreaching and discriminatory, denies married gay couples myriad federal benefits and equal treatment, requires the state to violate its citizens' constitutional rights in matters such as Medicaid eligibility determinations, and "codified an animus towards gay and lesbian people."
"In enacting DOMA, Congress overstepped its authority," the suit says.
The National Center for Lesbian Rights and other national gay rights groups applauded the move.
"The lawsuit filed by the Commonwealth of Massachusetts challenging the federal DOMA is an important landmark in the struggle to end the long history of invidious government discrimination against (LGBT) people," said NCLR Executive Director Kate Kendell. "We applaud the Massachusetts Attorney General for her leadership in standing up for the rights of same-sex couples and their families. This case recognizes that for far too long, same-sex couples who are legally married under state law have been denied the protections that are provided under federal law to other families in Massachusetts. The harms to these families in being denied more than 1,000 federal rights, protections, benefits, and obligations are tangible and extremely well-documented. There is no constitutional justification for discrimination against these families by their own national government. We applaud the actions of the state, and urge swift action to bring down DOMA."
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