Fight Over Who Will Take Marriage Equality To The Supreme Court Breaks Out Into The Open

Legal advocacy groups and big-name lawyers all want to be the ones who bring their case to the Supreme Court in order to argue for nationwide marriage equality.

WASHINGTON — The fight to win marriage equality across the nation has in recent months become nearly as much a fight about which lawyers and organizations will get to be the ones making the arguments before the Supreme Court — and taking credit for a win.

Now, that fight is breaking out into the open.

On Wednesday, Lambda Legal and the American Civil Liberties Union, along with Jenner & Block partner Paul Smith, asked the 4th Circuit Court of Appeals to allow them to intervene in the ongoing appeal of the challenge to Virginia's ban on same-sex couples' marriages.

The case, which resulted in a win earlier this month for same-sex couples backed by the American Foundation for Equal Rights, and in which the couples are represented by Ted Olson and David Boies, is on appeal. Now, Lambda Legal, the ACLU, and Smith want to join the appeal on behalf of the couples and class they represent in a second marriage challenge that is moving more slowly through a different federal trial court in Virginia.

As Lambda Legal and ACLU lawyers and Smith note in Wednesday's request to the 4th Circuit, "counsel for the [AFER-represented plaintiffs] indicated they do not consent" to their intervention.

Their request to intervene in the Bostic v. Schaefer case is just the latest in a series of tangles between the organizations and advocates who are fighting for marriage equality. BuzzFeed first described the behind-the-scenes fight in Virginia back in October 2013.

It's not only in Virginia either. At the 10th Circuit Court of Appeals, Roberta Kaplan from law firm Paul Weiss — who had successfully represented Edith Windsor in her challenge to the Defense of Marriage Act — sought unsuccessfully to intervene in the ongoing appeal there. The National Center for Lesbian Rights, however, was successful in joining the existing legal team from Utah in representing the couples on appeal.

The change from advocates over the past five years is dramatic.

As recently as early 2009, organizations like Lambda Legal, the ACLU and the National Center for Lesbian Rights balked when Chad Griffin asked them about going to federal court to make broad constitutional claims to fight California's Proposition 8.

Instead, Griffin enlisted the help of Olson and Boies and started the American Foundation for Equal Rights so they could file their own lawsuit. Olson and Boies had none of the qualms the established LGBT legal groups did about the argument, and they made their case for marriage equality in a media barnstorm across the nation.

By the time the Proposition 8 case ended on a technical ruling that returned marriage equality to California but prevented a national ruling about same-sex couples' marriage rights, Griffin had been made the head of the Human Rights Campaign and marriage equality was looking like a much more likely proposal — especially with the Supreme Court's ruling striking down DOMA's ban on federal recognition of same-sex couples' marriages.

Since then, it has been a race back to the Supreme Court. Earlier Wednesday, a federal judge in Texas declared that state's marriage amendment unconstitutional — sending that case to the 5th Circuit Court of Appeals — while other appeals are pending in the 4th, 6th, 9th, and 10th Circuits as well.

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