Two Attorneys for Gay Marriage Reject Gay Groups Lawyers Requests

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/08/08/BA4V1963JA.DTL

They agree on little else, but the two sides of the federal lawsuit challenging California's ban on same-sex marriage have found one point in common: that other gay-rights groups and the city of San Francisco should be kept on the sidelines as the case moves ahead.


Lawyers for the same-sex couples challenging Proposition 8 in U.S. District Court in San Francisco and for the Alliance Defense Fund, representing sponsors of the law, filed briefs Friday that differed on whether a trial is required to settle the dispute over the November ballot measure, which invalidated the state Supreme Court's May 2008 ruling that struck down a law defining marriage as the union of a man and a woman.

But the two sides agreed that the court should deny motions by the city and the advocacy groups seeking to become parties in the case.

The two couples represented by attorneys Theodore Olson and David Boies note that the gay rights organizations seeking to intervene in the case share their clients' basic positions. But adding parties would just delay matters, they argue - an opinion shared by the Alliance Defense Fund.

But underlying the plaintiffs' objection to the intervention is a more fundamental debate that has riven the gay rights community: the question of whether this federal lawsuit should have been brought at all.

That debate began shortly after the suit was filed in May, within days of the California Supreme Court upholding Prop. 8. Several gay rights groups immediately slammed the suit as disastrously timed because they said federal courts and the Supreme Court were unlikely to uphold same-sex marriage at this time.

Chad Griffin, president of the American Foundation for Equal Rights, which launched the suit, sent a letter in July accusing the advocacy groups of undermining the case in public and private comments and asking them not to intervene.

Nevertheless, the groups filed a motion to intervene that month, arguing that they represented a more diverse community of same-sex couples than did the two couples represented in the suit. San Francisco also moved to intervene.

Olson and Boies suggested Friday that if the court allowed any intervention, it should grant San Francisco's request. But the other advocacy groups, the lawyers argued, should be limited at most to roles as "friends of the court," - allowed to offer opinions, but shut out from decisions on how the case should be pursued.

"Having declined to bring their own federal challenge to Prop. 8," they wrote, the advocacy groups "should not be allowed to usurp Plaintiffs' lawsuit."

Attorneys for the city and the advocacy groups have note yet filed their responses to the opposition to intervention.

E-mail Matthew B. Stannard at mstannard@sfchronicle.com