Prop 8 Suit Plaintiffs Oppose Intervention of LGBT Groups, San Fran

Ted Olson, arguing on behalf of four people, whose legal bills are being paid for by a newly-formed organization whose board consists of six people (who themselves have several overlapping, sometimes indistinguishable interests), on Friday argued that the Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays — represented by the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — had no legal right and should not be permitted to join a case to determine in federal court whether Proposition 8 is a violation of the United States Constitution.

Lawyers for the Plaintiffs in Perry v. Schwarzenegger on Friday evening filed an Opposition to the Proposed Intervenors’ Motions to Intervene (”Mem. Opp.”; pdf).  Despite recent comments from Olson, this move was hinted at in a letter sent to the ACLU, Lambda and NCLR by the head of the American Foundation for Equal Rights, the group funding the Perry lawsuit.

The City of San Francisco (summarized as the “City”); the Our Family Coalition, Lavender Seniors of the East Bay, and PFLAG (summarized as the “Coalition”); and the Campaign for California Families (summarized as the “Campaign”), which had supported Proposition 8, had earlier filed the Motions to Intervene that the Plaintiffs opposed on Friday.

The court already granted the intervention of the “Protect Marriage” official proponents of Proposition 8 at the July hearing in the case.  No one objected to that intervention, which was necessary because neither the governor nor state attorney general will be defending Proposition 8 in this challenge.

The argument made on Friday against the intervention of the Coalition and the Campaign appears to be quite broad — and doesn’t hold back. The argument against the City, however, is made both with more nuance and with more caveats.

The Plaintiffs begin their argument by noting that “[t]he fact that the proposed intervenors or their counsel might bring another set of viewpoints to the litigation is an insufficient basis to call into question the adequacy of the existing parties’ representation.”  Mem. Opp., at 1.  The Plaintiffs go on to claim that the proposed intervenors lack standing that would justify the court granting intervention because they fail to present a “significant protectable interest.”  Mem. Opp., at 1; see also Mem. Opp., at 4-7.  This, despite the Coalition’s argument in its Motion to Intervene that “many members of Proposed Intervenors’ organizations intend to marry their same-sex partners, but are prevented from doing so by Proposition 8.”  Coalition Mot. Intervene, at 10.

The Plaintiffs also oppose the proposed intervention because, they argue, allowing these additional groups into the litigation would harm the ability of the court to reach what it already has stated it wants: a “just, speedy and inexpensive determination of these issues.”  Mem. Opp., at 2; see also Mem. Opp., at 14-16.

Then, the Plaintiffs go after what seems to be the main target of their opposition, the counsel for the Coalition:

And that substantial risk of prejudicial delay is compounded by the fact that one proposed intervenor—Our Family Coalition—is represented by counsel that (1) have publicly urged against the filing of any federal constitutional challenge to Prop. 8, (2) have publicly suggested that this lawsuit should be delayed to advance a national litigation strategy, (3) have opposed the development of a factual record in similar litigation, and (4) to this day, are unwilling to say that they actually support Plaintiffs’ effort to vindicate their rights in this lawsuit.

Mem. Opp., at 2.

Finally, the Plaintiffs argue that if any party should be allowed to intervene, it should be the city, noting — in yet another swipe at the ACLU, Lambda and NCLR — “its demonstrated willingness to take on Plaintiffs’ fight as its own.” Mem. Opp., at 3.  Even should they lose their argument that the City, Coalition and Campaign should be excluded, Plaintiffs still want to ensure that they control the litigation, asking to be designated as “Lead Plaintiffs’ Counsel” for this action — “and that the intervenors’ participation in this action be limited and coordinated through Lead Counsel.”  Mem. Opp., at 3; see also Mem. Opp. 16-18.

The Coalition, City and Campaign now will have seven days to file final replies before the Aug. 19 hearing in the case.

[UPDATE: In the LA Times article on the filing, Olson explains why he is opposed to the intervention:

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."]

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In other news, the Plaintiffs filed an aggressive Proposed Schedule for the case, with the following three key dates:

• Dispositive Motions Due: October 30, 2009
• Hearing on Dispositive Motions: November 20, 2009
• Trial: December 14, 2009

Should this calendar be accepted I’d like to apologize in advance to Judge Walker’s clerks, who would have just lost their Thanksgiving this year.

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