News :: GLBT
Olson fends off gay help
by Lisa Keen
contributing writer
Wednesday Aug 12, 2009
Controversy surrounding the court battle against Proposition 8 escalated this month when the legal team, led by conservative lawyer Ted Olson and liberal lawyer David Boies, argued against allowing several gay groups to participate in the lawsuit.
In a brief filed Aug. 7, Olson and Boies petitioned to block a coalition of gay organizations from serving as intervenors, saying 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 - the Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights (NCLR), and the LGBT Project of the ACLU - filed a friend-of-the-court brief in support of the Perry lawsuit. The three gay legal groups are representing 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.)
The Perry 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.
In the brief, the Perry team argues that the gay groups will not assert any argument that the plaintiffs’ legal team is not already willing to assert, and suggests the gay groups submit friend-of-the-court (amici curiae) briefs instead. The team also submits 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 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 Perry 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 Perry brief, the gay groups and attorneys are questioning the "adequacy of [plaintiffs’] counsel;" that is, Olson and Boies and their legal team. To that, says the Perry 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-Boies team includes at least two openly gay attorneys: Sarah Piepmeier and Enrique Monagas. Both have been active in LGBT community groups and both are married to same-sex spouses. Monagas has a two-year-old child.
Piepmeier says they are on the core legal team and are "actively involved in all aspects" of the litigation. She says there’s no question gay groups will be "involved" in the case, through friend-of-the-court briefs.
Shannon Minter, legal director for the 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," she said
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 on Wednesday, Aug. 19.
The judge will also take up the matter of whether and when to hold a trial in the lawsuit. That, too, is a matter of some controversy. The Perry team is urging the court to hold a full and public trial with expert witnesses, cross-examinations, and formal arguments; 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 an examination of the motives behind denying marriage licenses to same-sex couples.
Perry’s team likens their lawsuit’s challenge of Proposition 8 today to Romer v. Evans’ challenge of Colorado’s Amendment 2 in 1993. A federal district court in Denver heard three weeks of testimony in that case, which challenged 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, which 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 Perry brief.
The Perry brief says its legal team 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
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