Thursday brought news of what's being described as a "turf war" over the federal case being brought against Prop 8 by the American Foundation for Equal Rights (AFER) helmed by Ted Olson and David Boies.
NCLR, ACLU and Lambda Legal had initially declined to be part of the case describing it as "ill-timed" and gave disparaging remarks about it in the press, but have since filed a motion to intervene to be part of the case.
In response to the motion, Board President of AFER Chad Griffin sent them a rather harsh letter in which he states, "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of that, 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."
Today, Law Dork reports on the groups' response to the letter.
Jenny Pizer of Lambda Legal, who in the letter is mentioned to have wanted the word "supportive" in relation to the friend of the court briefs they filed along with the other LGBT groups, not used.
Law Dork reports: “'It just leaves me scratching my head a little bit.' She said that Griffin had been 'delighted' by the filing of the amicus brief and that her concern about the word 'support' was that it mischaracterized the purpose of the friend-of-the-court filing: 'It’s not an endorsement of what’s in [the initial Olson-Boies] brief; it’s a complimentary presentation.'”
In regards to the groups delaying the case by jumping in at this point of the process, a concern shared by Unite the Fight, Pizer told Law Dork that the concerns about delay were unwarranted and the Lambda is “committed to an efficient but complete presentation of the case.”
Law Dork writes, "James Esseks, the co-director of the ACLU’s LGBT Rights Project, said of the distinction between the groups’ initial response and their filing on Wednesday, 'People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side. . . . We’re all in the pool; it’s not just those plaintiffs.'”
Esseks added, “We know what the Alliance Defense Fund” — a group involved in many similar lawsuits and who will be supporting the Prop 8 proponent intervenors — “We know what arguments they’ll make.”
“Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me. It’s unfathomable,” Esseks told Law Dork in response to Chad suggesting that they would not rigorously argue the case they had initially dissed.
Shannon Minter, the legal director at NCLR, agreed. “Our only focus right now is on doing everything we can to help win the case.”
Law Dork concluded, "The lawyers for the proposed intervenors might be coming late to the party, but the reality is that the groups they are representing have the right to seek intervention in the case and to have counsel of their choosing in such an intervention effort. And though AFER clearly would strongly prefer for the other groups to remain as amicus participants only — and not be representing actual parties to the case — it is equally clear that Judge Walker is interested in presenting a robust factual record to the appellate court in this case, which is precisely what the proposed intervenors could help him do."
In the end, Law Dork hopes that everyone involved can sit down and discuss what's best for the case, a similar call that Unite the Fight made yesterday. However, I concluded that these groups should remain as consultants and not co-plaintiffs given that the course to trial is already underway and the division these groups have created over it.
Let Olson and Boies do what they phenomenally do best. To assume they will not do their homework and not know what the Alliance Defense Fund is going to argue is a pretty shallow response to the concerns brought up by AFER. The groups also don't respond to the harsh and divisive statements the groups made in the media about the case, signaling again that this is more about turf than it is about fighting for equal rights. It's an ego thing.
Yet they do make a solid point in that the groups they represent will will round out the case, representing the diversity of Californians harmed by Prop 8 and adding more facts to be recorded by the court in a case that will undoubtedly reach the appellate.
Having witnessed much division within our population, I get very impatient with those who purposefully and inappropriately voice they do not support others' efforts because of ego or a minor disagreement in tactic, which is my initial problem with NCLR, ACLU and Lambda Legal.
However, if these groups are truly ready to hop on board and can fully make this case stronger, without delaying the trial as Pizer says, I am willing to change my stance and say let them on board as co-plaintiffs to represent our LGBT diversity. Maybe AFER will too.
But first, let's hope they sit down and talk.