Divisions between Liberty Counsel and Alliance Defense Fund: the flip side of affaire de American Foundation for Equal Rights? REVISED 08/09/09

08/09/09 update:

I now question my analogy between legal organizations that oppose and defend same-sex marriage in California. I thought that they showed comparable fault lines over legal strategy.

By the time In re Marriage Cases was decided, ADF and Liberty Counsel were strategically divided over whether to oppose not just same-sex marriages in California, but also domestic partnerships. In June 2008, ADF supported successful efforts by Yes on 8 to keep Prop. 8 on the ballot. Liberty Counsel did not support Yes on 8 in this undertaking. In an effort to stay the In re Marriage Cases ruling until the election, Liberty Counsel still tried to claim (in this petition, at page 8) that the state Legislature needed to address questions about the "simultaneous existence of ... domestic partnerships and marriage for same-sex couples." Analogously (or so I thought), AFER and gay rights groups were, until July, divided over whether to federally challenge all same-sex-marriage bans, including Prop. 8.

On its face, my analogy invites doubt. ADF appears to have joined Liberty Counsel in earlier efforts to overturn domestic partnerships in California. It's unclear to me just when they parted ways over the respective priorites of their legal efforts in California. And, as my reference to The Culture of Christian Litigation (2005) suggests, their divisions extend further than just how far to oppose official recognition of same-sex relationships in California. (I haven't read this book.)

Moreover, strategic divisions of legal groups - whether for or against gay marriage - represent rather different political calculations that I overlook, and have, at any rate, already shifted as a result of the Perry case. In fact, important substantive differences, which I can't address here, appear to divide AFER, on the one hand, and the gay rights groups and the city of San Francisco, on the other.

My object for the analogy was rather to advance a pedestrian observation - that in seminal civil rights litigation, different strategic considerations among otherwise allied legal groups should surprise no one. If the affaire de AFER warrants such intense scrutiny, then the affaire de ADF does also. I am not convinced that the intense scrutiny is warranted in either case, except where substantive differences matter.

08/07/09 post, revised 08/09/09:

In the Perry case, bloggers and the news media have followed recent tensions between the American Foundation for Equal Rights (AFER) - which funds the work of Ted Olson and David Boies - and several legal organizations at the forefront of gay rights advocacy.

I have, however, seen no discussion of comparable tensions between the legal organizations representing ProtectMarriage.com / Yes on 8 - whose motion to intervene Judge Walk granted - and the Campaign for California Families (CCF), whose motion to intervene remains pending. The Alliance Defense Fund (ADF) is co-counsel for the former in the Perry case ; Liberty Counsel represents the latter. As readers of this blog very likely know, ADF represented Proposition 22 Legal Defense & Education Fund in In re Marriage Cases, 43 Cal.4th 757 (2008). Liberty Counsel represented CCF, a respondent in that case, at each phase of the litigation, including the trial court phase. (SF Superior Court, CJC-04-004365).

Today represents the deadline for Olson and Boies to file opposition to motions to intervene by Lamda Legal and other gay rights groups, and by the city of San Francisco. But it is also the deadline for ADF attorneys to file opposition to CCF's intervention motion. It seems unlikely that such oppositions will be filed.

CCF previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention, and its attorney, Andrew Pugno, filed a letter of letter of opposition on November 18, 2008. The California Supreme Court denied CCF's intervention motion, which Liberty Counsel filed on its behalf. At the time, ADF did not represent Yes on 8, but rather filed amicus briefing for the Family Research Council.

Shortly after the election in November 2008, Yes on 8 sent its supporters an e-mail on why CCF could not be trusted to intervene. The controversy will sound familiar to those who have followed the latest AFER contratemps over gay rights organizations that initially opposed a federal challenge to Prop. 8:

"Campaign for California Families...actually campaigned against Proposition 8 until a short time before the election," the email read. "Since we are the only organization representing the official proponents and the campaign committee that was responsible for passing Prop 8, allowing outside groups to participate in the defense of Prop 8 will only harm our chances of success." (11/20/08 SF Weekly)

In fact, CCF's lawsuits against domestic partnerships provide a context for its initial opposition to Proposition 8. It failed in its legal challenge to California's domestic-partnership law (Knight v. Superior Court (Schwarzenegger) (2005) 128 Cal.App.4th 14 ), and also failed to qualify initiatives that would would repeal the law. Liberty Counsel represented CCF in the litigation, but ADF was also engaged in the Knight case.

Not surprisingly CCF initially opposed Prop. 8 because it did not also exclude domestic parternships. In fact, the 11/24/08 SF Chronicle reported,

The people behind Prop. 8 have been butting heads with [CCF executive director Randy] Thomasson for years, arguing that his efforts to outlaw same-sex marriage and curb domestic partnership arrangements are a long step further than a majority of California voters is willing to go.

I find no evidence that ADF expressed public support for the e-mail by Yes on 8 to its members. Of course, the conflict here concerns Yes on 8 and CCF, not ADF and Liberty Counsel. But ADF and Liberty Counsel have a history of conflict that Hans J. Hacker has written about in The Culture of Christian Litigation (2005). Despite initial collegiality between the organizations, Liberty Counsel severed its ties with ADF. Mathew Staver, Liberty Counsel's founder,

"came to believe that [ADF] had strayed from its original mission and became too concerned with acquiring money, rather than using it to advance the movement's goals in the courts." (page 64)

Now CCF contests the costs of its participation in the consolidated, San Francisco Superior Court case (CJC-04-004365) that, upon appeal, reached the California Supreme Court as In re Marriage Cases. According to The Recorder, CCF contests orders by SF Superior Court Judge Richard Kramer to pay $5,639.66 to the city of San Francisco, and $6,442.27 to four civil rights groups, including San Francisco's National Center for Lesbian Rights. In its appeal (Campaign for California Families v. Newsom, A123634), CCF claims that it should not bear these costs because it was not a true party to the litigation at its initial stage before the Superior Court. This claim appears at odds with a declaration (at para. 11) by CCF executive director Randy Thomasson. CCF filed the declaration on June 26th, to support its motion to intervene in the Perry case. ADF, however, has agreed to pay it share of costs.

(Incidentally, as Recorder reporter Mike McGee observes, "[t]he most puzzling aspect of the appeal for the city and civil rights groups is that the Campaign for California Families is willing to risk more costs and attorneys fees to fight over a relatively small amount of money.")

Several Christian legal advocacy groups - The National Legal Foundation, the Pacific Justice Institute, and the Life Legal Defense Foundation - have filed a joint amicus brief in support of CCF. ADF has not joined in this brief, and is, indeed, conspicuous for failing to do so.