Gay legal groups trying to sabotage federal Prop 8 case?

July 9, 8:53 PMInternational LGBT Issues ExaminerKelvin Lynch

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 AFER's Chad Griffin (l) with attorney David Boies

Gay legal groups who vehemently criticized a federal Prop 8 case have now changed their tune and want in on the action.  But the group filing the suit has vowed to block their attempts to intervene, suggesting they may sabotage the case.

Lambda Legal, the National Center for Lesbian Rights, and the American Civil Liberties Union all say they wish to "bring their voice and expertise to the table".  But the American Foundation for Equal Rights (AFER), which filed the suit, has strongly rebuffed their offer. 

AFER president Chad Griffin told them,

"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."

The case, Perry v. Schwarzenegger, was filed by AFER in May, the day after the California Supreme Court upheld Prop 8 as a valid amendment to the California constitution.  AFER hired two high-profile attorneys, Ted Olson and David Boies, who famously argued opposite sides of the Gore v. Bush Supreme Court case in 2000. The case is pending before the U.S. District Court in the Northern District of California under Judge Vaughn Walker.

A large group of LGBT groups, including Lambda Legal, the NCLR, and the ACLU, issued a joint statement asking California residents not to file federal litigation against Prop 8, suggesting that conditions were not right.  Griffin noted that Matt Coles of the ACLU was quoted in The Advocate as saying that AFER's lawsuit "is an attempt to short-circuit the process" of obtaining marriage rights for gay couples.  Griffin said these statements were evidence that these LGBT groups are unsympathetic to the lawsuit. 

"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," Griffin said.

However, James Essex of the ACLU challenged the notion his group would work against AFER's legal team, saying, 

"People of good faith can disagree about when it makes sense to jump into any particular pool," he said. "But once you've jumped in, the idea that we didn't wouldn't fight hard, that we wouldn't swim hard, we wouldn't do our damnedest to get us out of the pool and make sure that we all get through this in a way that's a success for everybody, I think, is just incredibly short-sighted."

Essex said ACLU, Lambda Legal and the National Center for Lesbian Rights are "dedicated to equal rights," and called the idea that these groups would not fight to win in the lawsuit "just crazy talk."

Kate Kendell of NCLR said her group is seeking to intervene "for one reason and one reason only — we want to increase the likelihood of success.  Judge Walker's initial order indicated an interest in truly putting to the test the justifications for Prop 8 and for developing evidence on a range of issues," she said. "We believe that our involvement … will be critical in presenting the strongest case possible."

Since AFER refuses help from Lambda Legal, the NCLR, and the ACLU, the decision whether or not to allow them to intervene is left to Judge Walker.  The three groups have asked him for a decision within two weeks. 

Judge Walker has "fast-tracked" the case for a speedy adjudication, and arguments are set to start in September.

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