08/11/09 Gay Marriage Watch / The Journal Record:
Two lesbian couples have renewed their federal lawsuit against Oklahoma's constitutional ban of same-sex marriage (Okla. Const. art. 2, § 35), and against the federal DOMA. The case is Bishop v. Oklahoma (Okla. N. Dist. Case No. 4:04-cv-00848). On June 5th, the U.S. Court of Appeals dismissed the part of the case that concerned the challenge to the state constitutional ban. The Court ruled that because plaintiffs named state officials not causally related to their alleged injuries, they lacked standing to sue. In their amended complaint, filed yesterday, the Journal Record reports that "[t]heir latest filing changes some aspects of the case, including which government officials are named as defendants."
Tuesday, August 11, 2009
Statements by Wisconsin Family Action may undermine its challenge to the state's new domestic partnership law
(For related news, see the 08/06/09 Boston Edge.)
08/08/09 Wisconsin State Journal:
On behalf of Wisconsin Family Action (WFA), the Alliance Defense Fund (ADF) has petitioned the Wisconsin Supreme Court to overturn the state's new domestic partnership law. The case is Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860).
The new law, Wisconsin Stats. Ch. 770, (2009 Wisconsin Act 28, Sec. 3218, at pages 604ff.) confers 43 benefits to same-sex couples who register as domestic partnerships. These include "making partners eligible for family health plans, allowing them to inherit property and make end-of-life decisions for their partners." WFA claims that the law violates Art. XIII, Sec. 13 of the state constitution. Adopted in the 2006 election as a constitutional amendment, Art. XIII, Sec. 13 bans not only same-sex marriage, but also recognition of same-sex relationships that are identical or substantially similar to marriage. According to the petition (at para. 18), ADF alleges that Wisconsin Stats. Ch. 770 created a legal status "substantially similar to the legal status of husband and wife." Lamda Legal attorney Christopher Clark, who is aiding Fair Wisconsin, tells the Journal that the new registry does not "come anywhere close to marriage."
It's unlikely that the state Supreme Court will grant review. At least that's the opinion of former Supreme Court Justice Janine Geske. Nevertheless, opponents of same-sex marriage view domestic partnership laws as trojan horses - means for incrementally reversing public opinion against same-sex marriage. As I suggested here, that fear resonates among social conservatives in states whose voters approved of constitutional amendments banning same-sex marriage.
Even if the Court grants review, WFA's case faces another problem. WFA made statements in the runup to the 2006 election that appear to undercut its position. In December 2005, WFA president Julaine Appling told the AP:
08/08/09 Wisconsin State Journal:
On behalf of Wisconsin Family Action (WFA), the Alliance Defense Fund (ADF) has petitioned the Wisconsin Supreme Court to overturn the state's new domestic partnership law. The case is Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860).
The new law, Wisconsin Stats. Ch. 770, (2009 Wisconsin Act 28, Sec. 3218, at pages 604ff.) confers 43 benefits to same-sex couples who register as domestic partnerships. These include "making partners eligible for family health plans, allowing them to inherit property and make end-of-life decisions for their partners." WFA claims that the law violates Art. XIII, Sec. 13 of the state constitution. Adopted in the 2006 election as a constitutional amendment, Art. XIII, Sec. 13 bans not only same-sex marriage, but also recognition of same-sex relationships that are identical or substantially similar to marriage. According to the petition (at para. 18), ADF alleges that Wisconsin Stats. Ch. 770 created a legal status "substantially similar to the legal status of husband and wife." Lamda Legal attorney Christopher Clark, who is aiding Fair Wisconsin, tells the Journal that the new registry does not "come anywhere close to marriage."
It's unlikely that the state Supreme Court will grant review. At least that's the opinion of former Supreme Court Justice Janine Geske. Nevertheless, opponents of same-sex marriage view domestic partnership laws as trojan horses - means for incrementally reversing public opinion against same-sex marriage. As I suggested here, that fear resonates among social conservatives in states whose voters approved of constitutional amendments banning same-sex marriage.
Even if the Court grants review, WFA's case faces another problem. WFA made statements in the runup to the 2006 election that appear to undercut its position. In December 2005, WFA president Julaine Appling told the AP:
"If the state Legislature wants to take up adoption and inheritance rights, it can do that.Nothing in the second sentence (of the amendment, which forbids civil unions) prohibits that."In December 2005, the main author of the constitutional amendment, state Senator Scott Fitzgerald, also said the measure
"would not prohibit state or local governments or a private entity from offering privileges or benefits such as health insurance benefits, pension benefits, joint tax return filing or hospital visitation to same-sex or unmarried couples."
Competing arguments in the Perry case over whether to present facts about the discriminatory intent of Prop. 8, and their implications
(For related news, see the 08/10/09 Boston Edge.)
On August 7th, plaintiffs' and defendants' counsel filed proposed case management statements in the federal lawsuit against Prop. 8, Perry v. Schwarzenneger. As the San Francisco Chronicle reports, the opposing sides disagree over whether a bench trial is needed. Plaintiffs' counsel David Boies and Ted Olson argue that efficiency and justice require a trial of the facts that Judge Vaughn Walker identified as crucial to the case in his June 30th order. Representing the official proponents of Prop. 8, the Alliance Defense Fund (ADF) and co-counsel Cooper and Kirk argue that the Court does not need to hold an evidentiary hearing, and that (as Boies and Olson say) "numerous factual and legal issues should be disposed of before discovery is even conducted."
One core disagreement between plaintiffs' and defedants' counsel concerns whether the Court should have a trial of facts about the discriminatory intent of Prop. 8. As Boies and Olson point out, ADF and Cooper attorneys "oppose any inquiry into the role of animus or discriminatory intent toward gay and lesbian individuals on the part of the backers of Prop. 8 and those who supported it." Defendants' counsel try to attack the analogy by Boies and Olson to Romer v. Evans, 517 U.S. 620. In Romers, the U.S. Supreme Court overturned a Colorado constitutional amendment that would have banned any antidiscrimination law intended to protect gays and lesbians. The Court ruled that the amendment served no other purpose than to show animosity against gays and lesbians. The trial court in the case held a trial of facts, but the U.S. Supreme Court did not rely on the factual record to reach its conclusion about discriminatory intent.
Two points bear mention on the disagreement over a factual inquiry about Prop. 8's discriminatory intent. First, ADF and Cooper attorneys devote extended argument to why Judge Walker should not have a trial of the facts in this matter. Why? They appear anxious to preclude a factual inquiry that would support the argument that several gay-rights groups, and the San Francisco City Attorney, hope to make if they are allowed to intervene. This is the argument that Prop. 8 was adopted for no other reason than animus against same-sex couples, and that it thus advances no legitimate government interest. Second, if these parties had already been allowed to intervene, they would have not only dispatched arguments about Romer, but would have also explained why the Court needs a well-developed, factual record about the unique circumstances of Prop. 8's adoption. Boies and Olson answer ADF/Cooper's argument, but on the need to investigate Prop. 8' intent, they say nothing more than that they will show it "was driven by discriminatory intent, animus, and moral disapproval of gay and lesbian individuals."
On August 7th, plaintiffs' and defendants' counsel filed proposed case management statements in the federal lawsuit against Prop. 8, Perry v. Schwarzenneger. As the San Francisco Chronicle reports, the opposing sides disagree over whether a bench trial is needed. Plaintiffs' counsel David Boies and Ted Olson argue that efficiency and justice require a trial of the facts that Judge Vaughn Walker identified as crucial to the case in his June 30th order. Representing the official proponents of Prop. 8, the Alliance Defense Fund (ADF) and co-counsel Cooper and Kirk argue that the Court does not need to hold an evidentiary hearing, and that (as Boies and Olson say) "numerous factual and legal issues should be disposed of before discovery is even conducted."
One core disagreement between plaintiffs' and defedants' counsel concerns whether the Court should have a trial of facts about the discriminatory intent of Prop. 8. As Boies and Olson point out, ADF and Cooper attorneys "oppose any inquiry into the role of animus or discriminatory intent toward gay and lesbian individuals on the part of the backers of Prop. 8 and those who supported it." Defendants' counsel try to attack the analogy by Boies and Olson to Romer v. Evans, 517 U.S. 620. In Romers, the U.S. Supreme Court overturned a Colorado constitutional amendment that would have banned any antidiscrimination law intended to protect gays and lesbians. The Court ruled that the amendment served no other purpose than to show animosity against gays and lesbians. The trial court in the case held a trial of facts, but the U.S. Supreme Court did not rely on the factual record to reach its conclusion about discriminatory intent.
Two points bear mention on the disagreement over a factual inquiry about Prop. 8's discriminatory intent. First, ADF and Cooper attorneys devote extended argument to why Judge Walker should not have a trial of the facts in this matter. Why? They appear anxious to preclude a factual inquiry that would support the argument that several gay-rights groups, and the San Francisco City Attorney, hope to make if they are allowed to intervene. This is the argument that Prop. 8 was adopted for no other reason than animus against same-sex couples, and that it thus advances no legitimate government interest. Second, if these parties had already been allowed to intervene, they would have not only dispatched arguments about Romer, but would have also explained why the Court needs a well-developed, factual record about the unique circumstances of Prop. 8's adoption. Boies and Olson answer ADF/Cooper's argument, but on the need to investigate Prop. 8' intent, they say nothing more than that they will show it "was driven by discriminatory intent, animus, and moral disapproval of gay and lesbian individuals."
Monday, August 10, 2009
What divides plaintiffs' counsel in the Perry case and allied interests seeking intervention? Different arguments reflect different strategic goals.
(For related news articles and commentary, see 08/12/09 Windy City Times, 08/08/09 LawDork and 8/9/09 SF Chronicle.)
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:
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
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:
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.]
Sunday, August 9, 2009
Affaire de AFER grows: Boies and Olson file opposition to motions to intervene in the Perry case by San Francisco and gay rights organizations
08/8/09 AP:
I didn't think this development was likely, but AP reports that David Boies and Ted Olson have filed oppositions to proposed interventions in the Perry case not only by San Franicsco and gay rights groups, but also by the Campaign for California Families. In my revised post today, I characterize as "affaire de AFER" the dispute between Boies and Olson, on the one hand, and the gay rights groups and San Francisco, on the other. Tomorrow, I expect to post and discuss the opposition filings of August 7th. I have obviously underestimated the extent to which AFER was prepared to fulfil its threat to oppose intervention by legal organizations whose intervention it would otherwise have good reason to welcome.
I didn't think this development was likely, but AP reports that David Boies and Ted Olson have filed oppositions to proposed interventions in the Perry case not only by San Franicsco and gay rights groups, but also by the Campaign for California Families. In my revised post today, I characterize as "affaire de AFER" the dispute between Boies and Olson, on the one hand, and the gay rights groups and San Francisco, on the other. Tomorrow, I expect to post and discuss the opposition filings of August 7th. I have obviously underestimated the extent to which AFER was prepared to fulfil its threat to oppose intervention by legal organizations whose intervention it would otherwise have good reason to welcome.
Professor John Culhane responds to comments on his four-part series, "Marriage Equality and Religious Liberty"
08/7/09 WordInEdgewise:
Law professor John Culhane has responded to comments about his series on this site, "Marriage Equality and Religious Liberty."(See Part I, Part II, Part III, and Part IV.) I encourage you to do more than satisfy your curiosity about his responses. If you haven't explored his site, treat yourself to a welcome discovery. Among the millions of blogs available to engage or distract us, I find that his stands out, and so do many of his other readers. I enjoy his insights on a wide variety of issues and interests, not least because his insights show a delightfully quirky sense of irony and humor.
Law professor John Culhane has responded to comments about his series on this site, "Marriage Equality and Religious Liberty."(See Part I, Part II, Part III, and Part IV.) I encourage you to do more than satisfy your curiosity about his responses. If you haven't explored his site, treat yourself to a welcome discovery. Among the millions of blogs available to engage or distract us, I find that his stands out, and so do many of his other readers. I enjoy his insights on a wide variety of issues and interests, not least because his insights show a delightfully quirky sense of irony and humor.
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:
Not surprisingly CCF initially opposed Prop. 8 because it did not also exclude domestic parternships. In fact, the 11/24/08 SF Chronicle reported,
(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.
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,
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."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)
(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.
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