From Jim Burroway at Box Turtle Bulletin come these reports (here and here) on the latest wrinkle in what I've been calling the Boies/Olson challenge to Prop 8.
I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.
These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. . . .
But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning.
The response of the Boies/Olson team has been cool, to say the least. From the letter from AFER to the three groups:
Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.
Pam Spaulding has also been covering this:
If these groups' direct involvement cause a delay in the courts because they failed to act earlier, then they shouldn't have direct involvement. But AFER is open to their consultation and assistance, and if that's the best resolve for a united front, then these groups need to accept their position and assist in fighting to the end for the common goal of full equality under federal law.
Read the comments on this post.
I think that we need to remember, as some of the commenters don't seem to have done, that Lambda Legal, ACLU, and NCLR are not HRC and GLAAD, etc. The former three organizations have been effective where the "national leadership" has not. However, I think that AFER is correct in accepting their expertise and support, and in insisting that they otherwise stay out of it. The case is in process, why in the hell do they want to be butting in now -- except that it looks as though the case might be successful and they screwed up by criticizing AFER to begin with.
Here's a comment by Chris Geidner with a slightly different take on the issue. However, looking at the text of the letter, it appears that Geidner is doing some editing here. I think I detect an agenda in his post.
The other big marriage case news this week is the Massachusetts case. Dale Carpenter has a good preliminary analysis:
The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.
The first claim is that Section 3 "violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism" by creating an extensive federal regulatory scheme in a field ("domestic relations") reserved exclusively to the states. Complaint at 22. That, says Massachusetts, interferes with a state's traditional authority to define marriage as it sees fit.
The second claim is that Section 3 "violates the Spending Clause" because it (a) induces the state to violate the Equal Protection Clause and because (b) "there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by" specified federal programs. Complaint at 23-24.
The lawsuit is different from other pending challenges to Section 3, see here and here, because it's brought by a state, not gay couples, and because the core issue is federalism, not individual rights.
And, just to leave things on a light note, this story from Box Turtle Bulletin about Utah congressman Jason Chaffetz. I'm not going to quote from it because I don't want to spoil it for you, but it's nice to see the intellectual resources of the anti-gay right have not changed much.
And for dessert, I've decided I like the idea of BL anime, so here's another one:
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