Among the expected reactions of outrage from the Religious Right to the ruling striking down Proposition 8 yesterday was one very strange response from Liberty Counsel.
Instead of focusing its ire on the judge who wrote the decision, Liberty Counsel dedicated the bulk of its statement to attacking the Alliance Defense Fund for doing such a poor job of defending the constitutionality of Proposition 8:
Although Liberty Counsel has defended the marriage laws in California since the battle began in 2004, the Alliance Defense Fund, representing the Prop 8 initiative, opposed Liberty Counsel’s attempt to intervene on behalf of Campaign for California Families. The California Attorney General did not oppose Liberty Counsel’s intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended. After ADF actively opposed Liberty Counsel, ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged the amendment. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8. Liberty Counsel will file an amicus brief at the court of appeals in defense of Prop 8.
The California Supreme Court previously stated, “The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” Moreover, the U.S. Constitution cannot be stretched to include a right to same-sex marriage.
Except for this case, since Liberty Counsel was excluded by ADF, Liberty Counsel has represented the Campaign for California Families to defend the state’s marriage laws since 2004 and has argued at the trial, appellate and state Supreme Court levels.
You may recall that shortly after the court case began, the ADF-associated attorneys representing the Yes on 8 side made a concerted effort to prevent Liberty Counsel from intervening in the case … mainly because LC was just way too rabidly anti-gay, and that would just undermine the Prop 8 supporters’ attempts to demonstrate that their side was not motivated by anti-gay bias:
It was a sunny summer morning, but inside a San Francisco federal courtroom the outlook for Rena Lindevaldsen of Liberty Counsel was cloudy.
Charles Cooper, representing the official anti-gay marriage forces in a federal court challenge to Proposition 8, wasn’t fighting hard enough, she insisted. He wouldn’t try to prove, for instance, that homosexuality is an “illness or disorder.”
“Individuals should be entitled to treatment to change your sexual orientation,” Lindevaldsen argued.
Cooper’s team quickly deflected Liberty Counsel’s attempt to intervene, saying it just wanted to fight battles that “can’t be won.” That left Cooper — a consummate Beltway insider who avoids the kind of language favored by Lindevaldsen — and his firm the sole legal representatives for 7 million Californians that supported Prop 8.
The official Yes on 8 effort has tried to distance itself from “fringe” groups that are too “strident or combative,” [Yes on 8 General Counsel Andrew] Pugno said.
“I think it’s fitting that the demeanor and tone of our lead counsel would reflect the demeanor and civilized tone that we tried to maintain during the campaign,” he said.
Liberty Counsel even took their case to the Ninth Circuit in an effort to force its way into the case, claiming that the Prop 8 attorneys were insufficiently hostile to gays and would therefore would be unable or unwilling to present the strongest defense.
Liberty Counsel’s attempt to inject itself into this case was ultimately rejected by the court … and now the group is blaming the Alliance Defense Fund for having blown the case.