ACLU Sides With Prop 8 Supporters Over Disclosure

Yes, you read that right. The ACLU has sided with the Prop 8 supporters on the issue of internal campaign documents and whether or not they should have to hand them over to the plaintiffs in the federal case challenging the initiative. They argued their case at Tuesday's hearing.

The San Francisco Gate reports that the Northern California chapter, which supports the challenge, filed arguments with the Ninth Circuit Court arguing that forced disclosure of the documents could endanger people's freedom to speak while planning political campaigns, which they say is an infringement upon First Amendment protections.

"Political advocacy and strategizing is inherently rough and tumble," the ACLU told the court, which accepted the filing Tuesday shortly before hearing arguments in Pasadena on the disclosure issue.

"The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down ... will ultimately become fodder for their opponents," said Stephen Bomse, a San Francisco attorney who represented the ACLU.

He also said Prop. 8's backers have demanded similar campaign documents from the ACLU, which opposed the ballot measure.

Parts of the amicus brief filed by the ACLU, posted fully below, states:

What Plaintiffs want are Proponents’ internal strategy documents—private e-mails from those who were central to the campaign, strategy plans, and “brainstorming” sessions with campaign consultants and pollsters about arguments that should and should not be advanced ...But that is all core First Amendment information ...

The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down, every campaign plan that ultimately is not implemented will become fodder for discovery by their campaign opponents in the event of subsequent litigation, not to mention a blueprint for those opponents to use in future electoral battles. A rule that would open internal campaign communications to compelled disclosure upon a simple showing of ordinary litigation relevance would not breathe fresh air into the electoral process so much as flatten it like a house of straw.

ACLU's Amicus Letter Brief for Review and Filed Motion to Become Amicus Curiae, Filed 11-27-09 in Perry v. ...

I guess you can say I'm a little flabbergasted. I've been fully in support of the effort to get the Prop 8 folks to hand over the documents. Never before has a marriage case gone to trial, and revealing the motivations behind those who ran the campaign is essential to proving the argument that the initiative was done purely out of animus and a means to discriminate against LGBT citizens.

However, the ACLU raises a good point that our own efforts to get a hold of these documents can turn around later and bite us, and the rest of the nation, in the ass. It may already since the ACLU claims that the Prop 8 proponents have already subpoenaed them for NO on 8 documents (I guess proponents figure if they have to . . . ), and ACLU says they themselves will appeal any court order demanding they hand the communications over. Though I would say to this, "What do we have to hide?" But the impact could be much wider than how it affects us.

Which activist hasn't held brainstorming meetings and recorded ideas that came out of these sessions only to toss them aside as not workable, and in some cases, having realized to be offensive? Would we want these sessions used against us later as evidence of prejudice even though the concepts that came out of them were the result of free-flow thought and never used?

I'm not defending these Prop 8 folks. It's quite obvious why they did what they did, but that's not what the ACLU is arguing against. Is there another means by which we can prove the animus? I know the Olson/Boies team plans to use expert witness testimony, question Prop 8 campaigners and more - so how important are these documents to our strategy?

Honestly, I haven't made up my mind on this. I have been in full favor of disclosing the Prop 8 documents, but the ACLU's arguments have given me pause. Yet if the court does rule that the communications be handed over, and it gives the anti-LGBT forces second thoughts on continuing their unconstitutional ballot war, then maybe it will be a good thing.

(H/T to Proposition 8 and the Right to Marry)

Court Denies LGBT Legal Organizations to Join as Plaintiffs in Federal Prop 8 Case

Today Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, a federal lawsuit challenging California's Proposition 8.

"Nothing in the record before the court shows the current parties are incapable of delivering a full record that represents all of the parties interests," the judge said.

A statement by Lambda Legal, the ACLU and the National Center for Lesbian Rights:

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California's diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Our commitment to restoring marriage for all Californians is unwavering, and we will continue to do everything within our power to secure full equality and justice for LGBT people.

Law Dork says the groups will "be limited to filing amicus briefs, memoranda submitted to the court representing the views of non-parties who have an interest in the outcome of the case. At the trial court level, they will not have the ability to participate in depositions or request discovery. On appeal, they will have the option of requesting time at the oral argument, though, at this point, it is unclear how willing the plaintiffs will be to consent to any potential argument-sharing arrangement. In short, this has moved the LGBT legal organizations to the periphery of a very prominent and potentially landmark case."

Unite the Fight will continue to report on today's hearing. Other issues to be settled: whether or not the case should go to a public bench trial, a first for a same-sex marriage case. Plaintiffs support a trial, while defenders of Prop 8 do not.

UPDATE: San Francisco Has Filed to Intervene in the Olson/Boies Federal Case Against Prop 8

UPDATE: The amazing Therese Stewart, San Francisco's Chief Deputy Attorney, is more than happy to contribute to the "factual record" that Judge Walker is asking for in this case. Why? "Stewart’s been trying to get a judge to look at the facts about sexual orientation and discrimination for about four years," reports Legal Pad. And boy, does she got a record to give! Read more.

San Francisco has followed ACLU, NCLR and Lambda Legal in filing a motion to intervene in the federal case challenging Prop 8, the case headed up by power team Ted Olson and David Boies. (Read brief.) With Judge Vaughn Walker wanting to fast track the case while keeping a very thorough record for appellate courts, this new motion could possibly slow the process down while adding to the already building tension surrounding the case. Yet at the same time, it will add to the record.

The American Foundation for Equal Rights (AFER), which currently has the sole right to direct the case and is funding the lawsuit, filed as plaintiffs along with two same-sex couples. Its president, Chad Griffin, sent a letter to the three organizations accusing them of trying to wrestle control of the case, or in the very least, take credit for its possible success. AFER had reached out to the groups before filing, but they declined to be involved.

In its filing, San Francisco said it would add "a unique local government perspective" and extensive LGBT rights experience to the case, if allowed to intervene, according to the San Francisco Chronicle. The city pledged to cooperate with the attorneys for the plaintiffs.

Chief U.S. District Judge Vaughn Walker scheduled a hearing on San Francisco's motion to intervene for August 19. A hearing is still expected on the earlier motion to intervene filed by the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union.

LGBT Groups Respond to Icy Reception of Their Intent to Intervene on Fed Prop 8 Case

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.

UPDATE: LGBT Groups Who Opposed the Federal Case Against Prop 8 Now Want to Join In - Too Little Too Late?

UPDATE: Larry Kramer, who inspired the founding of ACT UP, tells the groups to butt out of the case in an email:

i implore your three organizations, lambda legal of los angeles, national center for lesbian rights, and aclu lgbt project, to not interfere with the olson/boies case. you will only botch up what they are trying to achieve. you have thus far not achieved it on your own and with your own tactics, so why are you trying to kybosh someone who has come along with fresh new energy, ideas, and clout? you are only behaving in the worst possible bitchy way, the way gay groups can fall victim to when their feelings are hurt. keep your noses out of it, will you please? i beg of you. you should be cheering these guys from the sidelines and showering them with gratitude for coming along and trying to help us in our hugely enfeebled position, brought on in great part by our inability to work together effectively ourselves. you are only perpetuating this useless behavior.

larry kramer

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When the American Foundation for Equal Rights (AFER) announced that they would be taking the fight against Proposition 8 to the federal court with power team Ted Olson and David Boies at the helm, numerous LGBT groups immediately issued a press release stating their opposition to this strategy, "reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back."

The groups associated with the press release included ACLU, Lambda Legal and NCLR. However, now they have changed their tune and have filed a motion to intervene (see definition), which would allow them to be co-plaintiffs on the case. Having fought for marriage equality in the state for sometime, it appears they don't want to be edged out. And though they did file amicus curiae (friend of the court briefs) for the lawsuit, it was clear the support was lukewarm.

"These groups wish to illustrate for the court the diverse needs of their members and the lesbian, gay, bisexual, and transgender (LGBT) community generally to provide the full factual record," said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal in the press release stating their new intentions.

Yet now, after slamming the case since day one in the media, "It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or—depending on your capacity for cynicism—are intentionally dragging down a suit from a rival group working for the same cause," says Towleroad.

I hate to say it, but I agree. I'm all for uniting our efforts and our resources, but this action from these LGBT groups comes off as wanting credit for what now appears a chance at success. Having faith and trust in each other is key to winning, and these groups did not demonstrate that from the beginning. Now it just sounds as if they're looking for the media attention that a win could bring.

Chad Griffin, Board President for AFER, sent the groups a rather harsh letter. In it, he provides numerous examples of AFER's attempts to involve the groups from the beginning, but also he provides numerous other examples of how they dissed the case to the media.

He opens the letter with the following:

"On behalf of the plaintiffs and our board, donors and supporters, I am writing to ask that you not intervene in Perry v. Schwarzenegger.

"Given our willingness to collaborate with you, and your efforts to undercut this case, we were surprised and disappointed when we became aware of your desire to intervene.

"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."

Here is the letter in full:

American Foundation for Equal Rights Letter

The San Francisco Gate is calling this another skirmish within the LGBT equal rights movement due to the passing of Prop 8 and its aftermath.

I'm hearing some say this does not look good for us because its showing divisions amongst us. However, I would like to remind them that civil rights movements in the past weren't fully united and had their own share of disagreements. Not everyone agreed with MLK or the tactics that he used - some to the very end. But constant questioning of our strategies is essential to final victory.

History is hindsight 20/20, and because MLK was pivotal in winning the rights for African Americans, it now appears as if everyone was behind him from the beginning. We look back and think, "He did no wrong." And that is just not the case.

Nor will it be the case for us. We will have disagreements. We will pursue different strategies. We will have "skirmishes." However, as Chad Griffin of AFER told Unite the Fight about the beginning of the case, "We're in a war, and we [AFER board] discussed where we could take the war. If you have a single goal in winning that war, you want to have the opposition on the defensive on all fronts."

In regard to the LGBT groups criticisms, he said, "We can all agree to disagree on different tactics but at the end of the day, we all have the same goal - we can all agree on winning full federal rights for all lesbian, gay, bisexual and transgender people."

It appears now the groups are agreeing with AFER's strategy to achieve that goal.

Don't get me wrong - I have nothing but respect for these groups. I for one am a fan of Jenny Pizer - she has done great work and I was thrilled to have a chance to meet her on several occasions. However, I would like to see us reach our goal as fast as possible. If these groups' direct involvement cause a delay in the courts because they failed to act earlier, then they shouldn't have direct involvement. But AFER is open to their consultation and assistance, and if that's the best resolve for a united front, then these groups need to accept their position and assist in fighting to the end for the common goal of full equality under federal law.

ACLU, LAMBDA LEGAL AND NCLR FILE FRIEND OF THE COURT BRIEF BACKING FEDERAL CHALLENGE TO PROP. 8

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed an amicus curiae (friend of the court) brief late tonight backing the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies.

“Proposition 8 violates the federal guarantees of equal protection and due process,” the brief states. “Proposition 8 denies same-sex couples the right to marry in a unique historical context in which the denial can only be deemed a declaration of inequality.”

"We are pleased to have the support of the ACLU, Lambda Legal and NCLR, which have brought inspiring leadership and legal expertise to the cause of ensuring all Americans are treated equally under the law," said Foundation Board President Chad Griffin. "This case is about the denial of fundamental Constitutional rights, and its significance is underscored by the united front presented by the coalition backing this case."

The coalition that has led the legal fight against Proposition 8 is now formally supporting the federal challenge. The ACLU, Lambda Legal and NCLR led the battle in the State Supreme Court to overturn Proposition 8 after the November 2008 election. They also joined the City and County of San Francisco, which filed an amicus brief last week, in spearheading the successful litigation that led to the California Supreme Court in May 2008 recognizing marriage as a fundamental right guaranteed to all Californians under the state constitution.

A hearing on the case is scheduled in the U.S. District Court, Northern District of California, on July 2. The suit was filed last month and also calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights to same sex couples.

Also last week, Gov. Arnold Schwarzenegger, who is named in the suit in his capacity as the state’s chief executive, filed papers with the court that did not dispute Proposition 8’s unconstitutionality and called for swift action by the courts to ensure people’s constitutional rights are protected. Two weeks ago, Attorney General Jerry Brown, who is named in the suit in his capacity as the state’s chief legal officer, filed papers that called Proposition 8 unconstitutional.

The suit was filed by two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the suit states.

UPDATE: ACLU Files Suit Against Arkansas Adoption Ban

UPDATE: An Arkansas Judge has ruled that the lawsuit challenging the state's ban on unmarried couples adopting can proceed, ruling in favor of the ACLU and against Arkansas Deputy Attorney General Justin Allen.

The attorney general said that no one had the intrinsic right to adopt, and as a result, the lawsuit didn't deal with said rights and shouldn't proceed because nothing could be challenged on constitutional grounds.

The ACLU countered that it did because the ban violated federal and state state constitutional rights to equal protection and due process.
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Over a dozen families, along with the Arkansas chapter of the ACLU, have filed suit on Tuesday against the state's law banning unmarried couples from fostering or adopting children.

According to Little Rock attorney, Marie-Bernarde Miller, "Act 1 violates the state's legal duty to place the best interest of children above all else." Claiming the act's language was confusing and that voter's were misled, 29 adults and their children signed on to sue.

The supporters of the ban, the Arkansas Family Council, admitted that the ban was targeted toward gay couples, but acknowledged it would affect straight people as well.

For my information on the law suit, Cole, et al. v. Arkansas, et al, go to ACLU Parenting.

The ACLU is asking anyone in Arkansas worried that they will be hurt by Act 1 to email arkansasfamilies@aclu.org or call (212) 519-7835.

MY THOUGHTS: What a shock that the Arkansas Family Council would be willing to strip away SOME straight people's rights in an effort to strip away ALL gay people's rights. These people are beyond obsessive - they're delusional to think that this is right in order to stop a few people they don't agree with from acting on their right to start a family. It sickens me. It's beyond my rational ability to understand those who voted for this - in a sense, they stripped away their own rights to keep others from being happy. If you want to rant, please add a comment and go for it.