When the federal trial challenging the constitutionality of California’s Proposition 8 gets underway Monday morning in San Francisco, leading lesbian and gay civil rights leaders in the state will find themselves in an unfamiliar location: in the audience.
It’s a little like last week’s College Championship Bowl Game between top-ranked Alabama and Texas, where the Longhorn’s star quarterback Colt McCoy was injured early in the game and forced to watch his team struggle from the sidelines.
Like McCoy, the state’s top LGBT legal organizations deeply wanted to be a part of this “game.” During the summer Lambda Legal, the ACLU and the National Center for Lesbian Rights (NCLR) petitioned the court to intervene in the case on behalf of other gay rights groups. But the legal team behind this lawsuit, coordinated by the Los Angeles-based American Foundation for Equal Rights (AFER) fought their participation for fear of losing control over the strategic direction of their case.
“As soon as you have five captains of the ship, it’s very hard to control the ship,” plaintiffs’ attorney Theodore Olson told California Lawyer magazine.
Ultimately, federal Judge Vaughn R. Walker rejected the groups’ appeal. (Only San Francisco’s motion to intervene in the lawsuit was granted by Judge Walker. AFER supported their participation).
For years, LGBT legal groups have waged a state-by-state legal strategy, carefully choosing to file lawsuits on behalf of same-sex marriage in places they thought they could win (like California, Iowa, Massachusetts, et al.) At the same time they strenuously fought to keep random plaintiffs from filing cases in the federal courts for fear they would lose.
The leaders of these groups (along with others like Equality California, the lead organization behind the campaign to defeat Proposition 8 ) were surprised and furious when the AFER lawsuit [pdf] was filed in federal court last May just as the California Supreme Court was upholding Prop. 8.
Since then they’ve accepted reality. In June, the ACLU, Lambda and NCLR filed a joint brief on behalf of the plaintiffs. Equality California also filed amicus briefs. They say they’re all on the same team now and no doubt want the lawsuit to succeed – and behind the scenes they’re helping the plaintiffs’ legal team prepare for the trial.
However, once this case is ultimately decided, possibly years from now by the U.S. Supreme Court, you can be sure LGBT legal groups will not just be silently on the sidelines. Like Colt McCoy, they’re pulling for their “team” to win even though they’re not on the field.
But if this hail-Mary legal pass is incomplete, you’re likely to hear a chorus of voices saying “We told you so.”
Post Script: On Saturday, January 9, the American Foundation for Equal Rights sent out a press release announcing the members of its new advisory board. Although it included well-known gay rights advocates like Cleve Jones and David Mixner, not one of the nine members comes from any of the leading LGBT-rights organizations.