A few weeks ago, we noted that Liberty Counsel was trying to force its way into the lawsuit over Proposition 8 in California, while the Yes on 8 lawyers have been trying to keep them out.
While Yes on 8 welcomed Liberty Counsel and other radically anti-gay groups during the election, they have been trying to keep them at bay ever since so that they can portray their post-election efforts as mainstream and reasonable.
But Liberty Counsel, representing the Campaign for California Families, isn’t giving up and is essentially forcing the Yes on 8 lawyers to admit that their efforts are driven by anti-gay animus in order to prevent Liberty Counsel from having any grounds to intervene.
Basically, Liberty Counsel is arguing that the Yes on 8 defense is not sufficiently anti-gay and therefore they should be allowed to intervene in the case so that the militantly anti-gay message is adequately represented, forcing Yes on 8 to argue that their efforts are already plenty anti-gay as it is and Liberty Counsel’s involvement is not needed:
Try as they might, lawyers from one anti-gay rights organization just can’t get any love from judges in California.
After being barred from intervening in the federal challenge to Proposition 8, the Campaign for California Families tried their luck Wednesday with the 9th U.S. Circuit Court of Appeals. But a conservative panel sitting at Stanford Law School didn’t appear any more likely to let them into the case.
Matthew Staver, whose advocacy group Liberty Counsel represents the campaign, repeated arguments previously made to Northern District of California Chief Judge Vaughn Walker: that the official Prop 8 forces weren’t adequately litigating the case and had stipulated away far too many facts.
Ninth Circuit Judge Pamela Rymer had a hard time understanding how Staver’s goals conflict with those already advanced by the Yes on 8 campaign, which Walker allowed to be the primary defendant in the case.
“How is your, your interest — your particular interest — affected?” she asked Staver.
If Prop 8 is upheld on some narrow ground, the stipulated facts still make it harder to prevent homosexuals from becoming a suspect class, Staver said. The Yes on 8 forces won’t fight the idea that homosexuality is immutable, he said.
Judge M. Margaret McKeown pounced on this point, and began to read from one of the Yes on 8 filings. “‘We will dispute plaintiffs’ claim that homosexuality is immutable,'” McKeown intoned, whereupon Rymer started shaking her head.
Staver’s appeal put the official Yes on 8 campaign in a bit of an awkward position, since it has tried to position itself as a defender of traditional marriage — but not hateful or insensitive. But for purposes of defending against Staver’s appeal, it had to show how many facts it was ready to contest, some of which are deeply offensive to same-sex marriage advocates.
Howard Nielson Jr. of Cooper & Kirk said his side hadn’t actually agreed to stipulations, only that they were open to a discussion. They may still argue, for instance, that sexual orientation is amorphous.
“We are simply not giving away the store on that,” Nielson said.