National Center for Lesbian Rights, Lambda Legal, and ACLU File Briefs in Same-Sex Marriage Case

Famed litigators David Boies and Ted Olson recently filed a lawsuit in federal court on behalf of California residents. The suit asserts that California Proposition 8, which bans same-sex marriage, violates the constitution. On Thursday, the National Center for Lesbian Rights, Lambda Legal and the ACLU filed a brief supporting the plaintiffs' argument that the law is unconstitutional.

Many GLBT rights groups oppose the litigation on the grounds that federal courts are not the best venue to decide this issue, given the current composition of the Supreme Court, the undeveloped status of federal court case law related to sexual orientation discrimination, the strong public opposition to same-sex marriage, and the weak status of sexual orientation within federal antidiscrimination law.

Because of the risks associated in the federal courts, many GLBT advocates prefer using state courts and legislatures to accomplish change in this area. Indeed, before the Supreme Court gets this case (if at all), voters in California might have already repealed Proposition 8, which would make the case "moot."

Despite their own opposition to the federal litigation strategy, these three leading GLBT groups filed a brief in support of the plaintiffs because they have accepted the inevitable nature of the suit. Matt Coles, an attorney for the ACLU, explained the difficulties raised by the suit: "Just because something is unjust doesn't mean you'll automatically get a court order. . . .You have to lay the legal and political groundwork." The groups, nevertheless, reluctantly filed supporting arguments.

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

At a court hearing held today, the Obama administration maintained the Bush policy of asserting a broad "state secrets" privilege to shield from disclosure information related to the CIA's rendition program. Human rights activists have long maintained that Bush utilized the program to "outsource" torture.

Several human rights organizations have filed lawsuits on behalf of individuals whom the Bush administration allegedly rendered to torture. The government, however, has refused to provide details of facts related to rendition, and courts, broadly applying the state secrets doctrine, have invariably dismissed lawsuits challenging the program.

Although some human rights organizations have drawn a hard line in the sand concerning the state secrets issue, earlier today the Obama administration reasserted the privilege during an appellate argument in a previously dismissed case. The ACLU, which represents the plaintiff, has condemned the DOJ's position as offering "more of the same."

I wrote on this in an earlier blog entry. If the Obama administration wished to drop the policy in this particular case, it would have done so prior to today's oral arguments. Most lawyers, however, do not shift positions in order to lose a case. Furthermore, the privilege can help secure victories in future cases; accordingly, DOJ will continue asserting it.

The DOJ's position is less about creating a wall of governmental secrecy; instead, it represents a powerful litigation strategy. Although acceptance of the privilege by courts results in the dismissal of anti-torture litigation, very few lawyers would forgo such a powerful strategic device.

But rendition and secrecy provoke passionate political debate. Accordingly, the Obama administration has released a statement, which (predictably) says that DOJ will "review" the state secrets privilege in other cases. The ACLU, however, is fuming. I, however, am not surprised -- particularly since Obama will continue rendition itself. Kidnapping probably works best when potential "victims" know very little about past practice. Activists who oppose state secrets should demand an open process like extradition.


Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program