Gay Rights Groups Seek to Intervene in Federal Challenge to Calif. Same-Sex Marriage Ban

Gay rights groups’ attempt to intervene in a federal challenge of California’s Proposition 8 has created a rift with the high-powered attorneys heading the case, turning erstwhile allies into head-butting competitors.

Both sides have diverging visions of legal strategy. The gay groups are pushing a cautious, narrow approach based on the circumstances of Prop 8, while Theodore Olson, David Boies and their backers are seeking a decisive victory for all gay couples under the U.S. Constitution.

The civil rights groups — the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund and the American Civil Liberties Union — are also worried that the Olson/Boies team is underestimating the importance of U.S. District Chief Judge Vaughn Walker’s insistence on a fully developed factual record. They moved this month to intervene (pdf) so they can present evidence of historic discrimination against gays and lesbians and answer Walker’s questions, such as whether sexual orientation can be changed and whether same-sex marriages destabilize opposite-sex marriages.

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Schwarzenegger says Proposition 8 may violate U.S. Constitution

Gov. Arnold Schwarzenegger has declined to defend the constitutionality of Proposition 8, telling a San Francisco judge that the legality of the anti-gaymarriage measure is for the courts to decide.

The governor’s decision to remain neutral in a federal challenge to Proposition 8 means no statewide official will be defending the measure in federal court.

Proposition 8 resurrected a ban on same-sex marriage, receiving 52% of the vote in the November election. The California Supreme Court ruled 6-1 last month that the measure did not violate the state constitution.

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CA AG Brown again says Prop. 8 should be struck down

California Atty. Gen. Jerry Brown once again refused to defend Proposition 8′s ban on same-sex marriage Friday, telling a federal judge that it violated the U.S. Constitution and should be struck down.

Brown made his arguments in response to a federal lawsuit against the state by two gay couples who contend the initiative violates federal due process and equal protection guarantees.

Over Brown’s opposition, the California Supreme Court upheld the proposition last month on state, not federal, constitutional grounds, a few days after the federal suit was filed in San Francisco.

Brown’s willingness to fight a state law that has been upheld by the state’s highest court contrasted sharply with President Obama’s decision this week to oppose a federal challenge to the U.S. Defense of Marriage Act brought in Orange County.

In that case, a married gay couple, Arthur Smelt and Christopher Hammer, has challenged the constitutionality of both Proposition 8 and the 1996 federal law that prohibits extension of federal benefits to same-sex couples.

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