Metropolitan News-Enterprise


Friday, November 20, 2009


Page 3


Ninth Circuit Denies Intervention Request in Proposition 8 Challenge


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld a ruling denying an advocacy group’s request to intervene in a suit challenging the constitutionality of Proposition 8.

A three-judge panel rejected an argument by the Campaign for California Families that proponents of the 2008 ballot initiative currently defending the measure in federal court would not adequately represent the group’s interests.

Writing for the court, Judge M. Margaret McKeown said that “[d]ivergence of tactics and litigation strategy is not tantamount to divergence over the ultimate objective of the suit.”

Kristin Perry and several gay and lesbian residents of California filed suit in May challenging the initiative on due process and equal protection grounds after they were denied marriage licenses because they were same-sex couples.

Approved last November, Proposition 8 amended California’s Constitution to provide that only marriages between a man and a woman are valid or recognized in the state.

When the governor and other officials declined to take a position on the suit, and the attorney general agreed the initiative was unconstitutional, Chief U.S. District Court Judge Vaughn R. Walker of the Northern District of California allowed the ballot committee which pushed the initiative last fall to intervene to defend it.

Advocacy Group

The Campaign for California Families—a non-profit group which describes itself as “dedicated to defending and representing the values of parents, grandparents and concerned citizens who believe in family, faith and freedom”—then sought to intervene as well, but Walker denied the motion.

He concluded the group failed to show that it had a significantly protectable interest in the subject matter of the litigation, that the disposition of the action might practically impair or impede the group’s ability to protect its interest, or that the group’s interest was not adequately represented by the existing parties to the action.

The campaign appealed, but McKeown wrote that the group could not show inadequate representation by the initiative proponents because the two shared the same “ultimate objective”: defense of the constitutionality of Proposition 8 and the principle that the traditional definition of marriage is the union of a man and a woman.

She said the proponents’ representation was presumptively adequate given the unity of interests, and that the campaign’s contention that proponents would not make arguments the campaign was prepared to make was not a “compelling showing” rebutting the presumption.

The campaign argued that the proponents had shown their willingness to stipulate to facts that “would virtually establish, as a matter of law, that sexual orientation is a suspect class.”

‘Unsupported Broadside’

However, McKeown, saying the proponents’ performance so far “amply illustrates their intention to mount a vigorous defense,” rejected the “sweeping allegations” as an “unsupported broadside.”

She commented:

“Proponents have not made concessions that would sell the Campaign down the river.”

McKeown criticized the campaign for distorting the proponents’ position “in a number of respects.” She noted that that the proponents had only shown a willingness to stipulate to three facts the campaign would not have conceded out of 67 proposed by the plaintiffs, and said “the real differences…boil down to strategy calls” which did not justify intervention as a matter of right.

She also wrote that Walker did not abuse his discretion in denying permissive intervention on the basis that allowing the campaign to intervene might delay the proceedings.

Judges Pamela Ann Rymer and N. Randy Smith joined McKeown in her opinion.

‘Helpful’ Information

Matthew Staver of Liberty Counsel, which represented the campaign, said that even though the court did not grant his client’s request he thought “the information that we’ve put before the court is helpful for the defense of Proposition 8 for those that are the proponents.”

He said his clients would be filing an amicus brief putting forth “all the arguments why Proposition 8 should be upheld.”

Attorney Ted Olson—a former U.S. solicitor general now with Gibson, Dunn & Crutcher in Washington, D.C. who represents the plaintiffs along with Matthew D. McGill—could not be reached for comment.

Attorneys for the proponents of the ballot initiative—Charles J. Cooper and Howard C. Nielson of Cooper and Kirk in Washington, D.C.—similarly could not be reached for comment.

The case is Perry v. Campaign for California Families, 09-16959.


Copyright 2009, Metropolitan News Company