Lawyers for two couples challenging California’s ban on same-sex marriage asked a federal judge in San Francisco today to bar three gay rights groups from becoming official parties in the case.
Attorneys Theodore Olson and David Boies argued in a brief filed with U.S. District Judge Vaughn Walker this evening that adding new parties to the case “poses a substantial risk of interference and delay.”
The attorneys filed the federal lawsuit on behalf of a lesbian couple from Berkeley and a gay couple from Burbank in May four days before the California Supreme Court upheld Proposition 8, a voter-approved ban on same-marriage.
The suit was the first in California to seek a right to same-sex marriage under the federal rather than the state constitution.
A previous five-year battle over gay and lesbian weddings in California centered on the provisions of the state constitution.
Walker will hear arguments on Aug. 19 on whether he should allow the three gay rights groups – Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families and Friends of Lesbians and Gays – to become an official party, or intervenor, in the federal lawsuit.
The groups are represented by civil rights organizations that took a leading role in the state court battle, including the American Civil Liberties Union, the National Center for Lesbian Rights and Lambda Legal.
The filing by Olson and Boies notes that the civil rights organizations had previously opposed filing a federal lawsuit because it could risk ending in an adverse ruling from the U.S. Supreme Court.
The two lawyers wrote, “Having declined to bring their own federal challenge to Proposition 8, Our Family Coalition and their counsel should not be allowed to usurp plaintiffs’ lawsuit now that it is under way and moving forward on an expedited basis.”
The gay rights groups argued in their request to intervene last month that they “represent the broad diversity of gay and lesbian individuals” affected by Proposition 8.
At the Aug. 19 hearing, Walker will also consider bids by the city of San Francisco to join the case on the side of the plaintiffs and by the Campaign for California Families to enter on the side of the sponsors of Proposition 8.
If Walker does not allow the groups to become intervenors, they can still file advisory friend-of-the-court briefs, but they will not be able to have a say in the management of the case.
In other filings today, Olson and Boies suggested a fast-moving schedule leading to a nonjury trial before Walker on Dec. 14.
The sponsors of Proposition 8 argued, however, that such a schedule would be an unreasonable “breakneck pace” and suggested that the lawsuit could be resolved without a trial through a series of summary judgment motions extending until the summer of 2010.
Olson and Boies, who argued on opposite sides of the Bush v. Gore case that decided the 2000 presidential election, were recruited by the newly formed American Foundation for Equal Rights of Los Angeles to handle the federal lawsuit.
They are representing Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeffrey Zarrillo of Burbank. The two couples say they want to marry, but were denied marriage licenses by their county clerks because of Proposition 8.
Proposition 8, a state constitutional amendment, overturned a ruling in which the state Supreme Court said in May 2008 that the constitution provides a right to same-sex marriage.
In its decision upholding Proposition 8 in May 2009, the court said the initiative was within voters’ power to amend the constitution. But the court left in place about 18,000 same-sex marriages that were performed in California before the Nov. 4 election.
