Yesterday's Los Angeles Times provides background on the latest escalation in what I've been calling "Affaire de AFER." The American Foundation for Equal Rights (AFER) was created to fund plaintiffs' representation in Perry v. Schwarzenneger, the federal lawsuit challenging Prop. 8 on grounds that it deprives same-sex couples of the fundamental right to marry, and denies them equal protection with respect to that right. Affaire de AFER initially concerned the organization's opposition to a motion to intervene in the Perry case by several leading gay-rights advocacy groups. On July 8th, Carl Griffin, AFER's Board President, sent a controversial letter to the National Center for Lesbian Rights (NCLR), Lamda Legal, and the ACLU, urging them not to intervene. These organizations, Griffin claimed, had "unrelentingly and unequivocally acted to undermine this case even before it was filed," making it "inconceivable that [they] would zealously and effectively litigate this case if [they] were successful in intervening."
But on the same day of Griffin issued the AFER letter, these organizations filed a motion to intervene. They stated that they would represent a much wider spectrum of potential-plaintiff interests that Prop 8 injures. They also stated that their much greater litigation experience in defending LGBT rights, including the right to marry, would make them uniquely well-qualified to provide the factual record that Judge Vaughn Walker has requested. (Law professor Nan Hunter comments today on this reason for intervention.) On July 23rd, the City of San Francisco filed its own motion to intervene, in which, like the gay-rights groups, City Attorney Dennis Herrera identified the unique qualifications of the City Attorney to provide the requested factual record.
AFER made good on its threat to do more than lambast NCLR, Lamda, and ACLU in the media. On August 7th, plaintiffs' attorneys David Boies and Ted Olson filed an opposition not only to proposed intervention by these groups, but also to San Francisco's proposed intervention. Their opposition also, in passing, targets a would-be intervenor on the side of the defendants - the Campaign for California Familes. (More about that tomorrow.)
Not surprisingly, news outlets have presented Affaire de AFER as a factional battle over who will control the plaintiffs' side of the case. AFER has evidently helped manufacture this made-for media script. Thus yesterday's Los Angeles Times:
Olson said in an interview that he wants the support of the gay rights groups, but "you like to keep control of your case." If the organizations intervene, "you are losing a certain degree of control to groups that didn't like the idea of the case in the first place."While on the surface the conflict looks like a turf battle, beneath the surface we can find different strategic goals that divide AFER, on the one hand, and the three gay-rights groups ("LGBT Groups") and the San Francisco City Attorney("SF"), on the other. Consider their amicus briefs supporting plaintiffs' motion for a preliminiary injunction against Prop. 8. (The LGBT Groups filed theirs on June 25th; SF filed its brief on June 18th.) The LGBT Groups focus on the unique circumstances of Prop. 8 that reveal its exclusive intent of animus against same-sex couples:
Considering the unique circumstances surround its enactment and stated intent of stripping same-sex couples of the status of marriage while leaving intact all of the other substantive rights of same-sex couples, the sole purpose of Proposition manifestly is to establish a declaration of the inequality of gay and lesbian couples under California law. (5)The SF brief makes the same point. SF contends that because Prop. 8 was designed to stip a historically disfavored minority of a core constitutional right, it was adopted by a majority "for no purpose other than to use the California Constitution to send a message of antipathy to lesbians and gay men." (18)
When they argued for a preliminary injunction against Prop. 8, Boies and Olson did not examine how, given the facts unique to Prop. 8, its only purpose was to signal a majority's hostility against a historically discriminated minority. Like the LGBT Groups and SF, they assert that
The voter-enacted constitutional amendment stripped gay and lesbian individuals of their right to marry under the California Constitution, and, as explained above, did so for no other reason than to express the majority’s moral disapproval of gay men and lesbians. (12-13)But how do they explain their assertion? They turn, not to the facts about why and how Prop. 8 was adopted, but rather to generalizable facts that apply to any ban on same-sex marriage:
The moral opprobrium animating Prop. 8 is exposed by the fact that California law establishes virtually no restrictions on the right of adults to marry other than the requirement that the couple be of the opposite sex ... [W]hile two individuals of the opposite sex who each have a long history of divorces, incarceration, mistreatment of children, and drug abuse can get married the morning after meeting each other at a night club, two individuals of the same sex who have spent years together in a loving and committed relationship are denied the opportunity to pledge their lives to each other and start an officially sanctioned family. This is an utterly irrational restriction premised on nothing more than longstanding misconceptions about and prejudice toward gay and lesbian individuals. (10-11)In fact, Boies and Olson reach for arguments against any ban of same-sex marriage, whether or not same-sex couples have an option for domestic partnerships that would give them some or almost all of the rights, duties, and protections of marriage.
Why are the LGBT Groups and SF so concerned to develop the factual record about how and why Prop. 8 was adopted, while Boies and Olson prefer arguments to attack any ban on same-sex marriage? The former have a more limited goal. By examining how and why Prop. 8 was adopted, they can demonstrate that Prop. 8 was solely intended to express hostility and disapproval against same-sex couples, and that it therefore advances no legitimate government interest. Under their analysis, the failure to advance a legitimate government interest means that Prop. 8 can not survive even the weakest test of constitutional review. But their argument would be limited to attacking just Prop. 8, rather than any ban on same-sex marriage.
Of course, as their motions to intervene make clear, the LGBT Groups and SF contend that their unique litigation experience qualifies them to address not just the factual question of Prop. 8's discriminatory intent, but other of Judge Walker's factual questions. But if they have the opportunity to intervene, they can pursue a more limited goal for the litigation that, they think, increases the odds of success when the U.S. Supreme Court reviews the case. Otherwise, the lawsuit is "extremely risky" in just the way that preeminent constitutional law scholar, Laurence Tribe, described to the Los Angeles Times:
Although Tribe believes that Proposition 8 is unconstitutional, "gambling that a basically conservative Supreme Court would agree [when 40 states ban same-sex marriage by constitution and/or statute] requires a leap of faith that is beyond my capacity. As I see it, Ted Olson and David Boies have thrown a Hail Mary pass into the end zone without any basis for confidence that Justice Kennedy would be there to receive it."[I credit Bay Reporter's Ann Rostow for her insightful article as I prepared this post.]