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Loading ...Gay marriage lawyers say no to help from S.F.
08.09.2009 11:45pm EDT
(San Francisco) The prominent lawyers leading the fight to legalize gay marriage in California on Friday formally told San Francisco officials and three other groups supportive of same-sex weddings “thanks, but no thanks” for trying to join their federal lawsuit.
Attorneys David Boies and Theodore Olson petitioned U.S. District Court Judge Vaughn Walker with legal arguments meant to block the city and the groups from standing together with the lawyers at trial. San Francisco put gay marriage front and center on Valentine’s Day 2004 when Mayor Gavin Newsom opened City Hall to same-sex weddings.Boies and Olson argued that allowing San Francisco into the legal fight would needlessly delay the case’s resolution.
A spokesman for San Francisco City Attorney Dennis Herrera didn’t return a telephone call late Friday night.
Boies and Olson also asked that three other gay-rights groups should be barred from joining the case on similar grounds. They also argued that the conservative Campaign for California Families be prevented from joining the case in opposition, saying the group also doesn’t have standing in the case.
“Campaign has failed to offer any argument that differs from those raised by” the parties already officially fighting the lawsuit, Boies and Olson wrote. The lawyers said all of the organization’s concerns are being addressed by lawyers with the Alliance Defense Fund, which the judge has allowed to intervene to argue against the lawsuit.
Boies and Olson, who represented Al Gore and George W. Bush respectively in the legal fight over the 2000 presidential elections, filed the lawsuit on behalf of two gay couples seeking to marry in California. They argued that they are now in the best position to legalize gay marriage in the state with arguments that the ban violates federal anti-discrimination protections.
The court filing highlighted the continuing disagreement among gay marriage supporters over how best to fight for same-sex weddings in the state.
Many influential gay rights groups fear a fight in federal court will ultimately end up before a U.S. Supreme Court comprised of a socially conservative majority that could deal the same-sex marriage campaign a significant setback with an adverse ruling.
Critics of that tack complain about the failure of the same-sex marriage campaign to defeat Proposition 8, which passed in November with 52 percent of the vote and limited marriage to a man and a woman. Boies, Olson and many others now contend the fight is ripe for a federal anti-discrimination challenge and at least three other federal challenges have been filed in Los Angeles and Boston.
On Friday, Boies and Olson argued that the case should proceed to trial before a judge without a jury before the end of the year. Lawyers with the Alliance Defense Fund argued in court papers Friday that the case could be decided rapidly without a trial.
Boies and Olson are highly competent Lawyers. Im know they realize the importance of their case. I fully support what they are doing, This isn’t about who gets to stand in front of the Supreme Court, but winning. Keeping the Council lean and mean could be the best tactic. It also eliminates others on the opposition joining on…. A good move.
“Many influential gay rights groups fear a fight in federal court will ultimately end up before a U.S. Supreme Court comprised of a socially conservative majority that could deal the same-sex marriage campaign a significant setback with an adverse ruling.”
But what the Hell. Rush in and make your ‘case’ – only to have it overturned by a 5-4 vote at SCOTUS. And a new challenge not heard for another 10-20 years.
Typical childish, no vision, no strategic planning move by the lawyers who are ‘trying to help’ but who, in the end, will do nothing but sabotage any possibility of ultimate victory.
This reflects the arrogance of Messrs Boies and Olson. Both are straight, white males who believe they know what is best. They will be unaffected if the suit is unsuccessful. They will continue to be eligible to marry in all states and have the full protection of state and federal constitutions. Their behavior is designed to ensure that they alone receive the credit and share with no one else. Lambda Legal and NCLR are more experienced in these cases and refusing their assistance is stupid. And, if the suit is unsuccessful, Boies and Olson will spew forth statements of disbelief. In the end, the LG community will suffer. Now is not the time to press a federal lawsuit. A failure will ensure continued discrimination for years to come. And neither lawyer can guarantee that their arguments will generate any greater deference than those made by LG lawyers who preceded them. Existing Supreme Court decisions do not support their position. It sounds like Boies and Olson expect the Justices to smack their heads and say, “I could’ve had a V-8,” admit the error of their ways and issue a favorable judgment. With the current makeup of the court? Doubt it. Relying on the collective experience and judgment of Lambda and NCLR is in our best interests.
If Lambda Legal et al. had been supportive of the suit, there would be no problem. But after trying to shoot it down, it seems pretty arrogant to suddenly want to be part of it. I think David Jones-Munoz is right. A lean, clean, mean suit is probably the best strategy.
Too many extra entities joining in and stirring the pot may needlessly delay the resolution of this case. Same-sex California need an amswer to this case yes or no in their favor soon so that they move onto whatever the next step might be toward restoration of their marriage rights if a next step is needed.
GayIthacan Said: …”only to have it overturned by a 5-4 vote at SCOTUS. And a new challenge not heard for another 10-20 years.”…
I think this is exactly what they hope to accomplish. I do not trust these two lawyers, here they come out of the blue…
Also as a side…the reason DADT will not be removed is simple; if openly gay men and women are allowed to server/die for their country, then what’s to stop the gay community from arguing that if we can die for our freedoms then why can’t we marry who we want?, hmmmmm
Good lord, have we learned nothing – most posts advocate sitting around and waiting some more…oh, one even goes to say if DADT is overturned then they have to give us our rights…really….study history much? Blacks served oh yeah…in the CIVIL WAR and then had their own troops in the world wars…did we give them their rights? So WTF makes you think removing DADT will solve our problems?
Lets just do exactly what we’ve done since the real GLBT leaders died – NOTHING…just keep giving our money to Lamda, HRC, NLRC etc. and for what – they ALL PISSED on the lawsuit and now want to join? I wouldn’t let them join either for fear they’d just try to sabotage it.
I am glad the “Straight white guys” (as called by one bigot) care more about my equality than our apparent leaders….you say they don’t care and they hope it sets us back??? Seriously? They do care as a mater of Constitutional protection. It may shock the hetero bigots on here that there are actually some really good straight people, some are even white, who support our equality because they believe in it and in our constitution. I amazes me that the community that espouses diversity is so f*cking bigoted!!!!!
I’m optimistic seeing that Boies and Olson are on this case. High-power lawyers do not take on high-profile cases with the intention of losing. I expect they’ll make a great case.
(And having worked for the City & County of San Francisco for many years I can honestly say: Don’t let them touch a thing!! Dear, Lord, noooo!!!)
>>Now is not the time to press a federal lawsuit. A failure will ensure continued discrimination for years to come<<
If not now, then when? Assuming it even gets to SCOTUS (which could be several years), there is no guarantee they’ll even except the case. Frankly, I saw these guys on CNN when they officially announced their decision to take on this case and I applaud their honesty, tenacity and frankness. Their argument is strictly from a constitutional basis of denying the same rights to a minority that the majority currently receive. There certainly is no shortage of case law for them to draw from.
While I applaud all the hard work of Lambda Legal and HRC, at the end of the day their decision to prolong our efforts to be equal in all facets of life is not only a poor decision, but has already set us back by twenty years or longer. It almost appears to be a power trip to draw this out as long as possible, thus keeping the money flowing and the gay community clinging to them as the last great hope for change.
As for Boies and Olson arguing to keep them from joining the case, good for them. There is nothing new they could possibly bring to the table and it would only interfere with the strategy they already have in place to win this case. To suggest that they would intentionally fumble the ball because they are straight white males is not only preposterous, but racist. The fact of the matter is, these guys are prominent attorneys with a long track record. At their age, I’m certain they would enjoy nothing more than to have their names go down in history as the duo who managed to overturn the final discriminatory practices of this country; not to mention having this as a prominent case that will be cited for decades to come in the universities of law across this country. Losing is NOT an option for them.
The court is NOT “socially” conservative. As a matter of fact, the swing vote, a moderate, is generally on the side of gay rights. The Boy Scout case is the sole exception. However, I respect the right of the Boy Scouts, as a private club, to be able to dictate their membership, just like any private organization should, and Justice Kennedy stuck to the law, which gave them that right.
Per Wiki:
Gay rights and homosexuality
Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. He wrote the Court’s opinion in the controversial 1996 case, Romer v. Evans, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court’s opinion Lawrence v. Texas, which invalidated criminal prohibitions against homosexual sodomy under the Due Process Clause of the United States Constitution, overturning the Court’s previous contrary ruling in 1986’s Bowers v. Hardwick. In doing so, however, he was very careful to limit the extent of the opinion, declaring that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In both cases, he sided with the more liberal members of the Court. Lawrence also controversially referred to foreign laws, specifically ones enacted by the Parliament of the United Kingdom and the European Court of Human Rights, in justifying its result. Kennedy voted, with 4 other Justices, to uphold the Boy Scouts of America’s organizational right to ban homosexuals from being scoutmasters in Boy Scouts of America v. Dale in 2000.
I’d also like to add this about Justice Thomas, per Wiki:
“Justice Thomas, in a separate short dissenting opinion, wrote that the law which the Court struck down was “uncommonly silly” (a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut), but that he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.”
He’s a *strict* constitutionalist (supposedly), so that wasn’t so bad. At least he basically said, more or less, that the law should be struck down (but on a State level).
I’d also like to add this about Justice Thomas in his dissenting opinion of Lawrence v. Texas, per Wiki:
“Justice Thomas, in a separate short dissenting opinion, wrote that the law which the Court struck down was “uncommonly silly” (a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut), but that he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.”
He’s a *strict* constitutionalist (supposedly), so his ruling really wasn’t so bad. At least he basically said, more or less, that the law should be struck down (but on a State level).
This worries me.
Better to have bigots on the bench show themselves for what they are, then to stay in limbo until every social conservative on the court resigns or dies off. That could be 40 years from now. Maybe some of you wanna wait 40 years, but I don’t. I’d rather be set back now and fight back from it–or maybe Boies and Olson will actually WIN. The court that struck down sodomy laws in Lawrence v Texas wasn’t especially liberal, and recall again that it was Scalia who said in his dissent that striking down sodomy laws left no plausible reason to deny gays the right to marry. DOMA is bad law because it requires a momentary suspension of full faith and credit. That’s a basic component of the Constitition. Denial of individual rights touches on a large body of established civil rights cases. Federal infringement on state jurisdiction is a violation of state sovereignty. All of these conflicts are caused by one law, and that means that the court that upholds DOMA (or expands it) is a court which invites revisitation of at least three areas of constitutional law. That would be a very activist gesture, as Bush Jr would say.