Gay rights groups attempting to
intervening as full-fledged plaintiffs in a federal gay marriage
lawsuit likely headed to the Supreme Court were officially rebuffed
by lawyers in charge of the suit on Friday, 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 Equal Protection Clause of the Fourteenth Amendment of
the U.S. Constitution because it discriminates against gay men and
“Every day that Prop. 8 remains the
law of California, Plaintiffs and thousands of other gay and lesbian
individuals are denied fundamental rights that are cherished and
enjoyed by others, and they suffer substantial, irreparable harm,”
the lawsuit argues.
The move to keep the gay groups at arms
length came as no surprise to anyone watching the drama unfold.
Last month, when the three gay rights
groups – the National Center for Lesbian Rights, Lambda Legal and
the American Civil Liberties Union (ACLU) – 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, said they were not welcome.
In a July 8 letter to the groups, AFER
President Chad Griffin said: “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.”
And on Friday, they vigorously opposed.
Attorneys Olson and Boies argued in documents submitted to U.S.
District Court Judge Vaughn Walker that allowing the groups into the
legal fight would “poses a substantial risk of interference and
“Having declined to bring their own
federal challenge to Proposition 8, Our Family Coalition and their
counsel [the gay rights groups] should not be allowed to usurp
plaintiffs' lawsuit now that it is under way and moving forward on an
expedited basis,” the lawyers argued.
Previously the gay rights groups, who,
along with the City of San Francisco, won the California marriage
suit partially overturned by Proposition 8, had called fighting the
gay marriage ban in federal court a “very high risk proposition.”
But as the lawsuit gained legal momentum, the groups flipped their
positions and suddenly wanted to get on-board.
If Judge Walker agrees to block the gay
rights groups and the City of San Francisco, which also wants in,
from becoming parties to the suit, they will be denied access to
craft legal arguments and management of the case, but will be allowed
to submit friend-of-the-court briefs.
Gay rights groups have shied away from
taking their fight to federal courts in the past, saying the Supreme
Court remains too conservative. A loss in the nation's highest
court, they contend, would cause the gay marriage movement
The gay rights groups wanting in on the
marriage suit remain tight lipped about their support. The three
groups argue the case would benefit from their experience, but none
have said they believe the Olson-Boies team will ultimately prevail.
This suggests they continue to harbor doubts whether the litigation
will be successful, and might be attempting to limit the damage of a
Supreme Court loss.
But a shift away from state courts is
already underway, fueled by three additional federal filings in Los
Angeles and Boston that seek to chip away at laws that restrict gay
couples from the right to marry and the benefits it offers.
In another filing Friday, Olson and
Boies proposed a fast-moving schedule capped by a nonjury trial
before Judge Walker on December 14.