Law.com - Division Emerges Among Foes of Calif. Same-Sex Marriages

Law.com - Division Emerges Among Foes of Calif. Same-Sex Marriages

Mike McKee
07-16-2008

A united front by conservative forces against same-sex marriage in California is showing signs of cracking -- or of having been an illusion all along.

Last week, the proponents of Proposition 8, a constitutional amendment that would limit marriage to heterosexual couples, asked the California Supreme Court to prevent another conservative group -- the Campaign for California Families -- from intervening in a suit that could determine whether that issue stays on the November ballot.

In a short brief filed Thursday, Folsom, Calif., lawyer Andrew Pugno, counsel for ProtectMarriage.com, argued that rather than back Prop 8, the CCF actively campaigned against it for years in favor of another amendment that would have sharply curtailed all gay rights.

"Only now that the act has qualified for the ballot as Proposition 8 do proposed intervenors support it," Pugno wrote. "Against this backdrop, there is significant concern that the presence of [the CCF] in this action will substantially interfere with real parties' ability to effectively defend Proposition 8."

In an interview Monday, Pugno referred to the CCF as "extremists" who want to go beyond the issue of marriage and "strip away gay rights" of any kind.

Mathew Staver, founder and president of the Florida-based Liberty Counsel, which represents the CCF, said Monday he was "disappointed and confused" by Pugno's motion. But he said his group is determined to back Prop 8.

"People in the past may have had different opinions as to the different approaches," he said, "but I don't think those opinions are anything that divides anyone now."

Although Pugno and Staver insist there is no rift, their opponents see an ideological schism in the conservative position. The CCF and Pugno's clients, ProtectMarriage.com, had seemed bosom buddies until last week, even presenting the most conservative positions as a tandem during the Supreme Court's same-sex marriage arguments in March.

"There appears to be some disagreement between the two groups," said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, one of the groups that filed the lawsuit to challenge Prop 8.

"They realize the tide of history is against them," he said. "They are becoming more desperate and shrill, and under those circumstances, divisions tend to emerge."

CCF wants to intervene in the suit, filed June 20 by civil rights groups, and accuses conservatives of misstating the initiative's purpose. The lawsuit alleges that Prop 8, in reality, seeks a constitutional revision that would require legislative approval.

In their June 30 intervention motion, attorneys for the CCF said the group's backers want "to protect their interests as longtime proponents of a marriage amendment to the California Constitution."

But Pugno told the high court that the CCF had fought efforts to get Prop 8 on the ballot. He attached an August 2005 letter sent out by the campaign and others that urged voters to oppose the amendment that would become Prop 8.

In that letter, the campaign called the proposed proposition a "flawed amendment" that "will forever permit homosexual 'marriage' by another name in California by allowing all the rights of marriage to go to gay couples." The letter urged voters instead to support the campaign's own separate amendment that would limit marriage to a man and a woman, eliminate domestic partnerships and many gay rights already provided by companies and other organizations.

Called the Voters' Right to Protect Marriage Initiative, it failed to get enough signatures to make the ballot.

Pugno made it clear Monday that his group didn't appreciate the CCF's earlier actions and doesn't want it involved in the legal fight for Prop 8. He called the group a "very small and vocal faction," and said the opposition to the campaign's intervention "illustrates the point that while the extremists may want to strip away gay rights, that all we are doing is focusing on restoring traditional marriage."

Pugno said that attacking gay rights is a gambit that's "unlikely to succeed in California."

Stephen Bomse, the Heller Ehrman partner who is working with civil rights groups to legally block Prop 8, said he "chuckled" when he saw Pugno's opposition to the campaign's intervention.

He wouldn't comment further on the dispute, however, saying he and the other legal groups that joined the suit -- NCLR, Lambda Legal Defense and Education Fund and the American Civil Liberties Union -- are focused on the merits of the case.

"We filed our own separate opposition," Bomse added, "that had nothing to do with whatever little internecine skirmish is going on between [the conservative groups]."

The case is Bennett v. Bowen, S164520.