The Letter To NCLR, Lambda & the ACLU and Their Response

equalrightsfoundationChad Griffin, the board president of the recently formed American Foundation for Equal Rights, which is supporting the federal Proposition 8 challenge brought by Theodore Olson and David Boies, sent an explosive letter (pdf) on Wednesday to lawyers for three of the nation’s most established LGBT legal organizations, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights.

Today, the skirmish that apparently has been going on behind the scenes since long before the lawsuit’s filing poured out into the pages of The Washington Post and into the full view of the LGBT and legal communities.  For the first time*, though, the behind-the-scenes dispute that has gone on over the past several months is being presented here, with an accusation flying in the past 24 hours that LGBT legal groups wouldn’t “zealously and effectively litigate this case” and responses that such a notion is “off-the-wall” and “unfathomable.”

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The letter claims that, as early as the fall of 2008, Jenner & Block lawyer Paul Smith, the board co-chair of Lambda and the man who argued Lawrence v. Texas before the U.S. Supreme Court, was approached about this lawsuit and “declined” the opportunity to “play a role in the case.”  Smith has not responded to a call seeking comment.

In May 2009, the letter claims individuals from what would become AFER discussed the potential involvement of other groups in the lawsuit with representatives, including Jon Davidson of Lambda, as well people from NCLR and the ACLU.  All three groups declined to join the effort.  On May 22, a few days before the California Supreme Court’s ruling upholding Proposition 8 as a valid enactment of the people, Theodore Olson and David Boies — the lawyers who opposed each other in Bush v. Gorefiled a lawsuit in federal court challenging Proposition 8 as a violation of the Due Process and Equal Protection clauses of the U.S. Constitution.

The ACLU, Lambda and NCLR — along with the Human Rights Campaign, Freedom to Marry and other LGBT groups — issued a statement soon thereafter, declaring that they “discourage[] people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage.”  The letter details this and other statements in the press that Griffin characterizes as “[h]aving gone to such great lengths . . . to tar this case in the press.”

In June of this year, however, the letter states that representatives of all three groups — including Kate Kendell and Shannon Minter from NCLR — participated in meetings and/or conference calls to discuss case strategy and/or “how to further integrate” the groups into the lawsuit.  And, on June 25, the ACLU, Lambda and NCLR filed an amicus brief in support of the challenge, although Griffin’s letter claims that even the characterization of their filing as being “supportive” of the brief prompted disagreement from Jennifer Pizer of Lambda.  Pizer, the senior counsel and director of Lambda’s National Marriage Project, said in an interview of the comment, “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.”

Then, on Wednesday, as reported here, the three groups filed a Motion to Intervene on behalf of three other groups — Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays — asserting that the Plaintiffs selected by AFER to bring the case “may be inadequate” to protect the interests of all people negatively impacted by Proposition 8.

At some point on Wednesday, although it is not clear when, AFER Board President Griffin sent the letter to representatives of NCLR, Lambda and the ACLU.  The letter, as noted by the Post, declared that AFER “will vigorously oppose any motion to intervene.”  Later in the later, Griffin goes into more detail about the reasons why AFER will oppose the intervention filed on Wednesday by the ACLU, Lambda and NCLR.  He wrote:

Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. . . . Such potentially interminable delay is antithetical to the values on which your organization was founded and for which you and your supporters have fought so tirelessly.

This, of course, runs counter to the arguments made by the three groups, which was that the diversity of the proposed intervenor groups would provide the court with additional facts to place in the record about the harm done to Californians by Proposition 8 that could not be presented by the current Plaintiffs.  Pizer, from Lambda, said the concerns about delay were unwarranted and the Lambda is “committed to an efficient but complete presentation of the case.”

Looking at Griffin’s letter, it is clear that — far from being blindsided by the Perry lawsuit — the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit.  It is also clear, though, that the groups have been working with the lawyers for the case since its filing to discuss strategy and a way to “integrate” the groups more fully in the case.

When contacted Thursday, 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.”

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This is, in part, a turf fight, and there is no denying it.  But it is a legitimate turf fight.  These three groups and their boards have been involved in dozens of lawsuits relating to marriage equality.  They have, for the most part, been well-planned and carefully strategized cases that have resulted in great forward movement in a relatively short time.  Additionally, as Esseks said, “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.”

Additionally, these three groups are arguably more accountable to the LGBT community for their actions due to their long-standing community ties than is AFER, a new group with six California board members who have not, so far as I can tell, been involved with any marriage equality litigation prior to Proposition 8’s passage.  At the same time, of course, anyone has the right to file a lawsuit to defend what she or he believes is her or his constitutional rights.

Toward the beginning of Griffin’s letter, he stated of the groups that “it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.”  Esseks, of the ACLU LGBT Rights Project took strong objection to that, saying, “Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me.  It’s unfathomable.”  Likewise, Shannon Minter, the legal director at NCLR responded in a statement that “Our only focus right now is on doing everything we can to help win the case.”  AFER did not respond to calls for comment on this issue.

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 light of the very diversity of the LGBT community that the proposed intervenors claim to represent, this intra-LGBT fight might have been inevitable.  Regardless, though, here’s to hoping that everyone sits down in the coming days and weeks and figures out the best way to move forward with this case to help advance equality for all the Californians and LGBT people across the country who are watching this lawsuit with bated breath.

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* = I removed the “exclusive” from the headline because the letter itself had been published previously.  The interviews conducted with the three groups today were exclusives, and the explanation of the timing of when AFER had begun approaching groups about the suit and when the three groups began cooperating with the lawsuit had not previously been discussed.  But, as Rex Wockner had apparently received it and sent it on to Box Turtle Bulletin, which had republished it there, I removed the “exclusive” headline to prevent misinterpretation.  I had not seen the letter posted anywhere prior to my publication, and no one who asked me about The Washington Post report suggested that they had seen the full letter either (in fact, most thought the letter was from Olson and Boies).  The link name stayed the same because I didn’t want to change the link, obviously.

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.