David Cohen has an interesting post about the ACLU’s 2004 memo, instructing people not to file counterproductive lawsuits regarding same-sex marriage that were likely to lose, and how that admonition is now gone (sue the bastards!). And, following Windsor, the ACLU filed suits in Pennsylvania, and soon in Virginia and North Carolina to challenge these bans.
But his post raises an interesting point. How is public interest litigation coordinated? When most of the litigation begins and ends within a single group–NAACPLDF, ACLU, etc.–the cases can be coordinated. But what happens when several different public interest groups have different interests? Or, when individual plaintiffs have an interest?
A friend is currently litigating a civil rights appeal in which his client recorded the police, and the client was charged with violating the state’s wiretapping statute. The district court ruled in his favor, and the government appealed. The case has some vehicle problems, but it does present the First Amendment issue very clearly. My friend spoke with an attorney at a public interest group, who advised him to drop the appeal, worrying that a bad precedent here could set the group back. Another civil rights group declined to offer amicus support due to the vehicle problems. I advised my friend, who is primarily a criminal defense lawyer in state court, to go ahead with the case. Though I am sympathetic to the public interest group’s arguments, and think this is a ripe area of the law to develop, I felt that the more important duty was to vindicate his client’s rights. My friend agreed, and added another point–were he to drop the appeal, his reputation in the local bar would take a hit. This experience clarified in my mind a big difference between public interest litigation and real litigation. There are actual clients, whose rights are being infringed.
So let’s turn back to the gay-rights example. I imagine many couples were discriminated due to DOMA with respect to benefits. Or, to take the facts from Windsor, a same-sex couple was hit with a huge inheritance tax bill. A memo from the ACLU telling them to hold tight could not have been to reassuring. I’d imagine many estate lawyers would have chomped at the bit to go after DOMA. Can you imagine the phone call from the ACLU attorney to a local estate attorney telling her, well yeah, DOMA is bad, and your client was screwed, but hang on for a decade or so till we figure this out. That could not have been a comfortable phone call. Well, as David says, now they can sue the bastards.
I’ll give another example, with some inside SCOTUS baseball. This past term the Court decided Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. As I noted in this post, this case was clearly about a corporation, that had nothing to do with the press, asserting its First Amendment rights. No one raised this point in the briefing, at oral argument, or in the opinions. I heard through the grapevine that a very prominent civil liberties group actually urged the petitioner to drop the case, for fear that it would set a bad precedent with respect to corporate personhood. Obviously, the case wasn’t dropped, and the issue wasn’t addressed. But public interest groups were once again in tension.
Now, the flood gates are open. Onto the Supreme Court. Let’s see if Justice Kennedy’s silly limiting dicta means anything.
This opinion and its holding are confined to those lawful marriages.