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Battle lines drawn – between possible co-plaintiffs – in gay marriage case | Hunter of Justice

Battle lines drawn – between possible co-plaintiffs – in gay marriage case

by on August 9, 2009  •  In Marriage

Attorneys Ted Olson and David Boies, representing the plaintiffs in Perry v. Schwarzenegger, have now officially and strongly opposed the efforts of three major lgbt advocacy groups to intervene as co-plaintiffs in the case. This is at bottom a  simple issue: will the Olson/Boies team control the litigation decisions, or will the advocacy groups have any power to do so?

Their brief opposing the groups' motion to Intervene, filed Friday, argues that the groups have failed to demonstrate that the original plaintiffs' team was not adequately representing the plaintiffs' interests in challenging the constitutionality of Prop 8. (This case does not involve DoMA or the Justice Department.) Without getting into the weeds of intervention law, I can say that the trial court judge has tremendous discretion in deciding whether to allow additional parties to intervene, or, alternatively, restricting them to the sidelines so that they can only file amicus briefs.

The groups are seeking to intervene mainly because they distrust the Olson/Boies team's hesitancy to invest the time and resources in developing a detailed factual record on a series of questions that the judge stated he wanted the parties to present evidence on. Why the fuss over how much evidence is submitted? I think that the advocacy groups want to ensure that such issues as the impact on children of being raised by gay parents will be decided based on facts, and not based on traditional norms that many courts have treated as facts or accepted as "common sense."

The City of San Francisco also filed a motion to intervene as a co-plaintiff, which the Olson/Boies team essentially conceded, and a competing right-wing group filed a motion to intervene as a co-defendant to support Prop 8.  The court will hear arguments on all the motions to intervene on August 19.

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