Prop. 8 foes clash over federal suit

A high-profile federal lawsuit against Proposition 8 has exposed new strains and divisions within the same-sex marriage movement, as civil rights lawyers who initially condemned the suit now want on board -- and are being rebuffed.

The lawsuit against the anti-gay-marriage initiative, launched by Los Angeles political consultant Chad H. Griffin and backed by entertainment industry activists, drew scorn and anger from gay rights lawyers when it was filed in May.

The major gay rights groups called the challenge to California’s same-sex marriage ban risky and rash, and warned that an adverse ruling by the U.S. Supreme Court could set the movement back decades.

Now that a trial is nearing, the lawyers who denounced the suit want to join as full participants, asking for seats at the table and the ability to shape legal strategy. But the consultant who defied their advice has vowed to “vigorously oppose” their intervention, and, in a court filing late Friday, lawyers formally opposed intervention.

The clash comes at a pivotal moment for the case, seen as the most likely vehicle for winning marriage rights for gays across the nation, and raises questions about who will control the legal agenda. A federal judge in San Francisco will decide the lineup of lawyers later this month.

“You have unrelentingly and unequivocally acted to undermine this case even before it was filed,” Griffin told lawyers for the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights in a letter last month. “In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.”

Griffin’s letter listed the groups’ “strident” comments about the suit and revealed a tangle over the wording of a news release.

Proposition 8 supporters have been watching with glee.

“Advocates for gay marriage are in complete disarray, not only on the political fence but on the legal fence as well,” said Andrew Pugno, a lawyer for Proposition 8. “Our job would be much harder if they were all unified in their efforts.”

Griffin, 36, the force behind the federal challenge, was not at the forefront of the marriage movement until now. He is a successful political strategist who began his career in the Clinton White House and made his entertainment contacts there.

Griffin grew up in Hope, Ark., “came out” at 27 and speaks passionately about equality for gays while lamenting suicide and homeless rates for gay teens.

His firm was not brought into the anti-Proposition 8 campaign until its very end. Griffin quickly raised money, tapping such Hollywood luminaries as Brad Pitt, and his TV spots are believed to have helped change poll numbers. But it was not enough.

Proposition 8 passed last November with 51% of the vote, and many in the gay community faulted the marriage-rights campaign for failing to quickly challenge their foes’ claims.

After a 24-hour bout of depression, Griffin said, he and others spent months talking to people around the country about a federal challenge.

He knew that a Proposition 8 challenge in the California Supreme Court was likely to lose, and he said he rightly foresaw that the gay rights groups would be unable to prevent individual federal marriage suits.

Hoping to put together the strongest possible case, Griffin hired conservative legal giant Theodore Olson and acclaimed liberal lawyer David Boies to represent two same-sex couples who want to marry. The lawyers are considered to be among the best U.S. Supreme Court advocates in the country and faced off in Bush vs. Gore, which gave former President Bush the White House after the election in 2000.

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.”

Lamba Legal and the other groups have been careful and deliberate in challenging marriage bans, and they have a successful track record. They won the marriage case in the California Supreme Court -- which Proposition 8 partly overturned -- and helped win marriage rights in other states.

Fearing a defeat in the conservative-dominated U.S. Supreme Court, the groups have chosen to litigate in state courts. State high courts have the final word on whether marriage laws violate state constitutions. Proposition 8 amended California’s Constitution.

Kate Kendell, head of the National Center for Lesbian Rights, said opposition to the groups’ intervention, “given the enormity of what is at stake, is perplexing.”

“This case is about our community and not any transient misunderstanding or disagreement among the lawyers,” Kendell said. “The stakes of this case for the entire community are legendary, and this is an all-hands-on-the-deck moment.”

The groups want to bring more members of the gay community into the case, which their detractors say would cost time. Olson hopes to get the legal challenge to the U.S. Supreme Court in two years.

Some supporters of the suit also worry that the groups might eventually oppose Supreme Court review and that such a division among the main litigants would hurt their chances. The gay rights groups are now involved in the case only as friends of the court, which means they sit on the sidelines.

Constitutional scholars, from liberal to conservative, predict a 5-4 U.S. Supreme Court ruling on marriage that could go either way.

Justice Anthony Kennedy, a Reagan appointee who is the author of two major rulings backing gay rights, is considered the swing vote. He usually sides with the conservative wing.

“The lawsuit is extremely risky,” said Laurence H. Tribe, a professor at Harvard Law School. Although Tribe believes that Proposition 8 is unconstitutional, “gambling that a basically conservative Supreme Court would agree requires a leap of faith that is beyond my capacity.

“As I see it,” Tribe added, “Ted Olson and David Boies have thrown a Hail Mary pass into the end zone without any basis for confidence that Justice Kennedy would be there to receive it.”

The challenge amounts to a “perfectly good case,” said UC Berkeley law professor Jesse Choper, “but that doesn’t mean they will win. . . . They have a decent chance.”

UC Irvine Law School Dean Erwin Chemerinsky said that only in hindsight will it be known whether the suit was wise. “So much at this moment is going to come down to one man,” he said. “What do you guess Anthony Kennedy is likely to do?”

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(BEGIN TEXT OF INFOBOX)

A history of Proposition 8

Jan. 3, 2000: Hundreds of California gay men and lesbians take advantage of a new state law and begin registering as domestic partners.

March 7, 2000: California voters approve Proposition 22, banning same-sex marriage.

Feb. 11, 2004: San Francisco Mayor Gavin Newsom instructs city officials to issue marriage licenses to same-sex couples, the first action of its kind in the nation.

March 11, 2004: The California Supreme Court rules that Newsom overstepped his authority and nullifies roughly 4,000 marriages of gay and lesbian couples in San Francisco.

Sept. 29, 2005: Gov. Arnold Schwarzenegger vetoes a same-sex marriage bill after it is passed by the Senate and Assembly.

Oct. 12, 2007: Schwarzenegger vetoes another bill that would legalize gay marriage.

May 15, 2008: The California Supreme Court strikes down Proposition 22’s ban on same-sex marriage in a 4-3 ruling.

June 16, 2008: County registrars and clerks in Alameda, Los Angeles, San Francisco, Sonoma and Yolo counties keep offices open late to allow at least two dozen same-sex couples the distinction of being among the first to wed.

Nov. 4, 2008: California voters approve Proposition 8, reinstating a statewide ban on same-sex marriage.

Nov. 19, 2008: The California Supreme Court votes to review legal challenges to Proposition 8.

May 26, 2009: Proposition 8 is upheld by the California Supreme Court.

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Source: Times research by Maloy Moore