Intervention Rights — and Wrongs

Intervention is an important litigation tool that allows one to become a party to a lawsuit brought by others. It has significant advantages over filing an amicus curiae brief in that, unlike an amicus, an intervenor usually has a right to conduct discovery, bring motions, present oral argument and evidence, and appeal. But, in order to be entitled to intervene, one generally has to have, at minimum, a direct and immediate interest in the litigation. That requirement points to a crucial difference between Lambda Legal’s successful intervention on behalf of clients in a number of cases and the efforts of right-wing groups to intervene in our lawsuits. Lambda Legal recently successfully intervened in Brinkman v. Miami University, a lawsuit filed by the Alliance Defense Fund (ADF) on behalf of an Ohio legislator whose children attend this state school. The ADF’s lawsuit seeks to end the school’s provision of domestic partnership benefits to its employees in same-sex relationships. We represent two Miami University professors who have asked us to defend the health insurance benefits their same-sex partners receive from the university. Our client Jean Lynch has worked for Miami University since 1988 and has been in a committed relationship with her partner, Helenka Marculewicz, for more than 17 years. Earlier this year, Helenka relied on the university’s health insurance to cover knee replacement surgery. Our other client, Yvonne Keller, has worked at Miami University for seven years. She and her partner, Susan Gray, have two infant children and they depend on the challenged benefits to provide medical care for their children. Intervention was proper because our clients have a direct and immediate personal interest in the case: It is their health insurance that the ADF is trying to have withdrawn.

Our intervention in the Brinkman case follows our successes in intervening on behalf of other clients in cases where the provision of existing domestic partner benefits has been threatened. In Ralph v. City of New Orleans, we intervened on behalf of city employee Peter Sabi and his partner, Phillip Centanni, Jr., after the ADF challenged New Orleans’s extension of health insurance benefits to the same-sex partners of its employees. The court allowed us to present oral argument, which helped secure the Louisiana intermediate appellate court’s ruling this past December that the trial court correctly dismissed the ADF’s lawsuit.

A number of years ago, we likewise were able to intervene on behalf of employees of Pima County, Arizona, in a lawsuit that attacked the county’s authority to provide domestic partner health insurance covering our clients’ and their coworkers’ domestic partners. In intervening, we presented evidence about the low cost of these benefits and the reasons why it was advantageous for the county to provide them. That evidence helped convince the court to deny the challenger relief. Similarly, in Knight v. Schwarzenegger — a lawsuit the ADF filed in an effort to strike down California’s comprehensive domestic partnership law — Lambda Legal, our cocounsel at the ACLU and the National Center for Lesbian Rights, and our cooperating attorney David Codell, obtained intervenor status for five same-sex couples who had registered as domestic partners and stood to lose hundreds of rights and benefits if the state law were invalidated. We also obtained intervention for Equality California, the state’s largest LGBT advocacy organization, on behalf of its members, many of whom also had their rights as registered domestic partners threatened by the lawsuit. The intervention allowed us to present declarations from our clients and other evidence; to argue against and help defeat a motion for preliminary injunction that had sought to keep the new law from going into effect; to file a winning motion for summary judgment and to secure party status for our clients in the ADF’s thus-far failed appeals.

But if we create precedents allowing our clients to intervene and thereby become parties in lawsuits mounted by these right-wing groups, are we laying the path for those organizations to be able to intervene in the civil rights cases we launch? Our victories opposing intervention by these far right groups and their clients show why not.

In the California marriage equality litigation, for example, the ADF sought to intervene on behalf of the Proposition 22 Legal Defense and Education Fund (the Fund). The Fund is an organization that was created after the passage of the California initiative that amended the state’s Family Code to provide that “Only a marriage between a man and a woman is valid or recognized in California.” The Fund claimed that, because it was created with the express mission of enforcing and defending California’s marriage statutes, and because it had board members who had worked on the campaign to pass Proposition 22, it should be allowed to intervene. The trial and appellate courts agreed with us, however, that — unlike our clients who are suing to be able to marry — the Fund’s members would not be personally affected by the suit. As the Court of Appeals explained, a ruling on “the constitutionality of denying marriage licenses to same-sex couples” would not “impair or invalidate the existing marriages of its members, or affect the rights of its members to marry persons of their choice in the future.” The Court further noted that, while the Fund and its members have “strong philosophical or political” beliefs that only different-sex couples should be allowed to marry, that is not the kind of direct and immediate interest that provides a right to intervene. Read the Court’s decision here.

The Iowa Supreme Court made a similar point in Alons v. Iowa District Court, in which Lambda Legal had filed an amicus brief. In that case, two lesbians from Iowa, who had entered a civil union in Vermont and thereafter separated, asked an Iowa court to enter an order that their civil union was terminated, that they again were single individuals and that they no longer had any obligations as a result of having been in the civil union. After a trial court did so, the ADF, on behalf of several conservative Iowa legislators, a pastor and a church, asked the Iowa Supreme Court to order the trial court to vacate its order. The Iowa Supreme Court refused to do so, agreeing with us that these challengers had no “legally recognized or personal stake in the underlying case” and that “simply having an opinion” is not enough to interfere in the personal lives of other people.

These cases highlight a primary point about the struggle of same-sex couples to protect our families: We are personally and directly harmed when others succeed in opposing our receipt of domestic partner benefits; our ability to adopt, become foster parents or maintain custody of our children; or our freedom to marry. When we secure those rights and benefits, however, our opponents are not harmed. They may not like the result, but their family relationships are not directly affected when our families obtain or secure protections for our loved ones. There is a message here about who really has more legitimate claims when it comes to issues of marriage equality and domestic partner rights: those who suffer legally, financially and personally from being treated unequally or those who simply have a philosophical or political opposition to others having what they currently enjoy. In other words, there is a big difference between being a legitimate intervenor and meddling in the lives of others. I recently learned that the slogan on America’s first penny read “None of your business.” Maybe we should bring it back so that those who oppose protections for same-sex couples’ families would get a clue.