Last month gay rights groups altered
course to back a federal gay marriage lawsuit likely headed to the
Supreme Court; now they want to intervene as full-fledged plaintiffs
in the suit. And so does the City of San Francisco, the AP reported.
The lawsuit over a California gay
marriage ban is being mounted by Theodore Olson and David Boies. The
two legal titans are representing a gay couple and a lesbian couple
who would like to marry but cannot because of Proposition 8, the
state's voter-approved gay marriage ban upheld as constitutional by
the state Supreme Court in May. The lawsuit argues that Proposition
8 violates the U.S. Constitution.
Three gay rights groups – the
National Center for Lesbian Rights, Lambda Legal and the American
Civil Liberties Union (ACLU) – and the city of San Francisco have
petitioned the court to intervene on behalf of the case. Lead
plaintiff the American Foundation for Equal Rights (AFER), the
recently formed group that is funding the Olson-Boies suit, has said
they are not welcome.
AFER President Chad Griffin urged the
gay rights groups to stay away in a statement released Wednesday.
“You have unrelentingly and
unequivocally acted to undermine this case even before it was filed,”
Griffin said. “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.”
Previously the gay rights groups had
called fighting the gay marriage ban in federal court a “very
high-risk proposition.”
“Successful change involves building
blocks,” Matt Coles, director of ACLU's LGBT project, told the Wall
Street Journal's law blog. “You build constitutional
principles alongside efforts at the societal and legislative levels.
They're jumping over the process and going straight to the end. From
where we sit, this is a very high-risk proposition.”
“In our view, the best way to win
marriage equality nationally is to continue working state by state,
not to bring premature federal challenges that pose a very high risk
of setting a negative U.S. Supreme Court precedent,” Shannon
Minter, legal director of National Center for Lesbian Rights, told
the AP.
The gay rights groups and the city of
San Francisco, plaintiffs in the state court case against the gay
marriage ban, also would like to alter the legal arguments of the
case. They would argue that Proposition 8 is a discriminatory
measure because it takes away rights from gay men and lesbians, while
Olson and Boies offer a much simpler argument: Marriage is a
constitutional right regardless of sexual orientation.
Which suggests that the gay rights
groups and the city of San Francisco continue to have doubts whether
the litigation will be successful and might be attempting to limit
the damage of a Supreme Court loss. But the groups say they are
taking their cues from Chief U.S. Judge Vaughn Walker, who said he
believed a factual record of how Proposition 8 affected gay couples
was important.
San Francisco City Attorney Dennis
Herrera's office filed its motion on Thursday, arguing that the city
would add “a unique local government perspective” to the suit,
and highlighted its extensive legal experience in defending gay and
lesbian rights.
Judge Walker has scheduled an August 19
hearing.