San Fran, gay groups want in on federal marriage suit

Tue. July 25, 2000 12:00 AM by

Last month gay rights groups altered course to back a federal gay marriage lawsuit likely headed to the Supreme Court; now they want to intervene as full-fledged plaintiffs in the suit. And so does the City of San Francisco, the AP reported.

The lawsuit over a California gay marriage ban is being mounted by Theodore Olson and David Boies. The two legal titans are representing a gay couple and a lesbian couple who would like to marry but cannot because of Proposition 8, the state's voter-approved gay marriage ban upheld as constitutional by the state Supreme Court in May. The lawsuit argues that Proposition 8 violates the U.S. Constitution.

Three gay rights groups – the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union (ACLU) – and the city of San Francisco have petitioned the court to intervene on behalf of the case. Lead plaintiff the American Foundation for Equal Rights (AFER), the recently formed group that is funding the Olson-Boies suit, has said they are not welcome.

AFER President Chad Griffin urged the gay rights groups to stay away in a statement released Wednesday.

"You have unrelentingly and unequivocally acted to undermine this case even before it was filed," Griffin said. "In light of this, 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."

Previously the gay rights groups had called fighting the gay marriage ban in federal court a "very high-risk proposition."

"Successful change involves building blocks," Matt Coles, director of ACLU's LGBT project, told the Wall Street Journal's law blog. "You build constitutional principles alongside efforts at the societal and legislative levels. They're jumping over the process and going straight to the end. From where we sit, this is a very high-risk proposition."

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," Shannon Minter, legal director of National Center for Lesbian Rights, told the AP.

The gay rights groups and the city of San Francisco, plaintiffs in the state court case against the gay marriage ban, also would like to alter the legal arguments of the case. They would argue that Proposition 8 is a discriminatory measure because it takes away rights from gay men and lesbians, while Olson and Boies offer a much simpler argument: Marriage is a constitutional right regardless of sexual orientation.

Which suggests that the gay rights groups and the city of San Francisco continue to have doubts whether the litigation will be successful and might be attempting to limit the damage of a Supreme Court loss. But the groups say they are taking their cues from Chief U.S. Judge Vaughn Walker, who said he believed a factual record of how Proposition 8 affected gay couples was important.

San Francisco City Attorney Dennis Herrera's office filed its motion on Thursday, arguing that the city would add "a unique local government perspective" to the suit, and highlighted its extensive legal experience in defending gay and lesbian rights.

Judge Walker has scheduled an August 19 hearing.

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