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Gay Bloggers Turning Against Gay Activists Over Olson/Boies

On timely motion, the court must permit anyone to intervene who … claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
–Federal Rule of Civil Procedure 24

Some very misinformed gay bloggers are completely misunderstanding, and misreporting, the news that Lambda Legal, the ACLU and other major gay advocacy groups are petitioning to intervene in the controversial “Olson/Boies” lawsuit challenging Proposition 8 (Perry v. Schwarzenegger).

Box Turtle Bulletin:

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. Olsen [sic] and Boise [sic] oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.


The argument for the Johnny-come-lately LGBT groups butting out is more persuasive than just a me-first, knee-jerk reaction[.]

It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or — depending on your capacity for cynicism — are intentionally dragging down a suit from a rival group working for the same cause.

The Box Turtle Bulletin clip, besides misspelling both Olson’s and Boies’ names, is especially frustrating in its obliviousness. Are we really dealing with “four captains trying to pilot the ship” — or “two captains trying to take back the cockpit from a pair of drunken stewardesses”? I don’t know.

What I do know is that if my interests are being represented, against my will and against my reasoned judgment, by parties I conclude are not well suited to do so, then I am surely entitled to act on my own behalf. Rule 24, and Lambda’s actions, are deeply routed not only in law, but simple ethics and common sense.

But so what, right? Burn her anyway!

The following is the comment I left at Towleroad:

Anyone who thinks that Lambda Legal and the ACLU are “johnny come lately” groups is too hopelessly uninformed on the history of gay rights litigation to be taken seriously.

Meanwhile, intervention is a matter of right. If the potential intervenor (and the judge) believe that the litigation affects the intervenor and that the litigants are not likely to adequately represent the intervenor’s interests or legal arguments, then it is wholly appropriate to allow the intervenors to represent their own interests. It’s called “due process” — maybe you’ve heard of it?

Or are we suddenly opposed to allowing people to sue for their rights?

One more point: The term is “amicus curiae” — friend of the COURT. It says nothing about being a “friend of the plaintiff.”

Maybe Olson & Boies will prevail. Maybe Lambda Legal is reaching the wrong conclusion and taking the wrong action. Entirely possible.

But any gay who questions Lambda’s motives, their superior ability to strategize on gay rights litigation, or their proven track record, is just being insolent for the sake of insolence and is humiliating himself before the entire gay blogosphere.

Yes, I intend to blog about the Massachusetts DOMA lawsuit. For now, here’s a tweet I posted:

I see one interesting point in the Mass DOMA complaint. The rest is gobbledygook that will likely be dismissed for lack of standing.

Stay tuned.

9 Responses to “Gay Bloggers Turning Against Gay Activists Over Olson/Boies”

  1. One other, very important consideration that Lambda Legal is aware of, whether or not that's true of the bloggers: While an adverse ruling won't be res judicata against subsequent challengers to Prop 8, it very likely will be binding precedent.

    Thus the Boies/Olson suit has to be litigated properly the first time. There may not be a second chance. I hardly blame, for instance Lambda Legal, which as you point out is anything but a "Johnny Come Lately" to the issue, for wanting to ensure that what it considers the best arguments are heard in the District Court and in the Ninth.

  2. Box Turtle Bulletin did not remove your comment. It is right where you left it:


    We do not edit or delete comments based on opinion. Please remove your statement saying that we did.

    [Kip replies: The comment was there, then it wasn't. And it was still not there at the time I published this post.]

  3. I think you're overstating the right to intervene. If these groups were vested in the specific marriages of the Olson/Boies clients (as heirs or creditors or prior spouses or something similar), or had actual property rights that would be impacted by a ruling as to community property or not I could see them being legitimate intervenors in this case, but that's not what's here.

    This looser definition these groups seem to want the court to use suggests a civil rights group can intervene in any trial-level case where later appellate review might result in an adverse ruling to their interests. While I'd love to have every criminal defendant with 4th Amendment issues get full ACLU representation at the trial level (whether they want it or not), that's not the way the system works. If they'd adopted this attitude in the 1980s we might still have a viable 4th Amendment. I certainly wouldn't expect to see these groups telling criminal defendants not to fight now in the hopes of a more liberal court giving a more favorable ruling to future defendants down the road.

    Olson/Boies might not be the perfect vehicle for the greater societal message we all want, but so-called leaders telling these attorneys to abandon their clients (and their clients' case) for some greater societal good is simply wrong.

    [Kip replies: I actually have not taken a position on the underlying merits of the motion to intervene, either in this post or generally speaking. I am merely pointing out the absurdity of those who simply cannot ascribe anything other than ulterior motives to the groups making the motion.]

  4. Box Turtle Bulletin did not inexplicably “lose” for a bizarrely lengthy period of time an essentially identical comment. As much as you might like to believe that BTB is conspiring against you and your message, it just didn't happen.

    Unlike this site, we do not seen every comment to moderation. Ours post immediately.

    Your comment was not removed or revised or amended or adjusted or moderated or anything else. It sat right there on the thread where it sits from that moment to this one.

    You may be confused because we have two threads discussing this topic. And the one on which you left your comment is not the one to which this thread links. So perhaps you mistook the two and forgot where you posted your thoughts.

  5. Ah… correction… you don't send all comments to moderation. Only those with links. My apologies.

    Nevertheless, we did not do anything to you comment.

  6. KipEsquire's comment was there when I read the BTB article, and I never saw it disappear or anything.

    As Timothy Kincaid noted, there are two different articles on BTB discussing the same issue; the one KipEsquire linked is a different article than the one in which he commented.

    You may not agree with BTB on this issue (I definitely agree with a lot of your points, and I am now following you on Twitter!), but you need to admit that you made a mistake on this one, and jumped to conclusions. I think you owe BTB an apology. Your passive-aggressive edit to this post is kind of immature.

    But that's just an outsider's two cents. :)

  7. It is very unfortunate to see our community becoming divided over something as nuanced as legal strategy. The general population (and I include myself in that in spite of my pseudo-legal background) cannot begin to fathom the thought, law and factors one must contemplate in filing any lawsuit or responding to any lawsuit – let alone understand all the factors considered prior to intervention and the rationale used by Lamda or even Boies/Olson. I'm sure both have reason to believe that they have sound legal arguments.

    I hope we don't further divide our voices – we are unrepresented enough without challenging each other and pointing fingers at each other. We should be encouraging each other, correcting each other when necessary and contributing to the benefit of one another.

    This is not a competition between LGBT activists/advocates. It IS us verse them – and we are WAY outnumbered.

    We may lose this court battle, but we won't lose the war. I firmly believe we are on the side of what is just and right.

  8. I think the "lost" comment wasn't lost. You simply misplaced it.

    In this post, your blockquote from BTB came from this thread:

    Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

    If that's the thread where you went looking for your comment, then of course it's not there. But if it's lost, it's because you went looking in the wrong place. It is actually on this thread:

    Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

    Scroll on down and there it is, right where it always was. It's the fourth comment down.

    I corrected my misspelling, but at least my error didn't slander anyone. The least you could do is be classy (or whatever) and correct your error. We didn't lose your comment. You did.

  9. I was willing to listen to your point of view on this, and still might be at some point, but your use of the phrase "a pair of drunken stewardesses" closes my mind to you. Perhaps I'm overreacting…wait, no I'm not. That's inexcusable. Since someone who would use that phrase obviously isn't bright enough to understand why it's counterproductive, I'll explain: 1) the term is "flight attendant," and 2) by using stewardess you make implicit assumptions about the leadership abilities of women. People invariably say what they really mean, even if it is accidentally. So you can perhaps understand how you've lost your cred on this one.

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