May 5, 2014 | by Chris Johnson
ACLU opposes DOMA lawyer’s intervention in marriage case
Robbie Kaplan, Roberta Kaplan, GLAD, DOMA, gay news, Washington Blade

The ACLU opposes Robbie Kaplan’s intervention in an Ohio marriage case (Washington Blade file photo by Michael Key).

The national group that teamed up with a lesbian attorney to litigate successfully against the Defense of Marriage Act is now arguing against her participation in a lawsuit against a ban on same-sex marriage in her home state.

In a filing Friday before the U.S. Sixth Circuit Court of Appeals, the American Civil Liberties Union — along with the ACLU of Ohio and private attorneys at Gerhardstein & Branch — expressed opposition to Roberta Kaplan’s intervention in a case seeking recognition of same-sex marriages in Ohio for the purposes of death certificates.

The 16-page brief argues that Kaplan should be denied intervention in the Ohio case — in which she sought entry on behalf of Equality Ohio and four same-sex couples — on the basis that she wants to enter the case at too late a stage and is making arguments already stated by plaintiffs in the lawsuit.

“Plaintiffs-Appellees have the utmost respect for Equality Ohio and the four unmarried couples and their counsel and the important interests they represent,” the brief states. “However, Plaintiffs-Appellees should be entitled to continue to litigate the case that they initiated in July of last year without the disruption and prejudice that would flow from new claims and parties at this late stage.”

The ACLU contends Kaplan, who wanted to enter the case to argue that heightened scrutiny protection is warranted on the basis of sexual orientation, is making a claim that plaintiffs say they’ve already asserted. But the ACLU also objects to the new claims presented by Kaplan on the basis that they “have not been addressed by the parties or decided by the District Court.”

Further, the ACLU takes issue with the timing of her request to intervene in the case, which was made late last month.

“The motion is untimely because it was filed nine months after the case was filed in the District Court, three months after the notice of appeal was docketed and eight weeks after the appellate briefing schedule was issued,” the brief states.

Not so long ago, the ACLU and Kaplan worked side-by-side on behalf of same-sex couples. The decision against Section 3 of DOMA handed down by the U.S. Supreme Court not even a year ago was the result of the ACLU working with Kaplan on behalf of widow Edith Windsor, who was suing the U.S. government because she had to pay $363,000 in estate taxes under the law in the aftermath of the death of her spouse.

Asked to respond to the ACLU’s objection to her intervening in the lawsuit, Kaplan replied, “Our response will be in the reply brief that we file with the Court.”

Robyn Shepherd, an ACLU spokesperson, said her organization didn’t become involved in the case until “at the end of last month.”

The case, Obergefell v. Himes, was filed by private attorneys last year on a behalf of a same-sex couple that flew to Baltimore and married on the tarmac at the airport. Afterward, one half of the couple, James Obergefell, sued Ohio in federal court to ensure that his name would appear on the death certificate of his partner, John Arthur, who was terminally ill.

U.S. District Judge Timothy Black ruled in the couple’s favor before Arthur died. Afterwards, Ohio Attorney General Mike DeWine appealed the case, bringing it before the Sixth Circuit Court of Appeals.

Kaplan — who was born in Ohio, but now lives in New York — filed a brief on April 23 to intervene in the case on behalf of  four couples and Equality Ohio, seeking to argue the state’s marriage ban is unconstitutional in ways other than with respect to death certificates.

“The Proposed Intervenors seek more than the recognition of out-of-state marriages for the limited purposes sought by plaintiffs,” Kaplan writes. “Rather, they seek equal dignity for all gay and lesbian relationships, as mandated by the Supreme Court in United States v. Windsor… and the overturning of all Ohio laws that discriminate against gay people, as provided by the Supreme Court in Romer v. Evans…Specifically, the Proposed Intervenors’ brief will demonstrate that article XV, section 11 of the Ohio Constitution, and related statutory laws, unconstitutionally discriminate against gay people.”

It’s not the first time that Kaplan has sought to intervene in a marriage case. She also filed a request to participate in Kitchen v. Herbert, the case seeking marriage equality in Utah, but the U.S. Tenth Circuit Court of Appeals denied her request.

It should be noted that both sides in the case are opposing Kaplan’s intervention in the Ohio case. On the same day that ACLU voiced its objections, DeWine filed a 10-page brief against her participation, similarly making the case that Kaplan waited too long to intervene.

“Proposed Intervenors — Equality Ohio, Equality Ohio Education Fund, and four same-sex couples — ask this Court to take the unusual step of letting them intervene in this litigation after it has reached a final judgment in the trial court, after one side has appealed, after a briefing schedule has been set, after briefing has begun, and (by the time of this response) after at least two-thirds of the briefing is complete (and perhaps all briefing by the time the Court rules on the motion),” DeWine writes. “Other courts have rejected similarly belated attempts by similar proposed intervenors to join other existing cases as full parties.”

Another lawsuit challenging the Ohio ban on same-sex marriage as unconstitutional was filed last week by six same-sex couples. Their lawyer is the same as the attorney who successfully argued against the ban with respect to death certificates, and in a later case with respect to birth certificates and Ohio’s prohibition on recognizing same-sex marriages.

The objection to Kaplan’s intervention in the case takes place amid the perception that LGBT advocates are battling to be part of the case that makes its way to the Supreme Court in anticipation that justices will make a final, nationwide ruling in favor of marriage. Whoever is behind such a lawsuit will get credit for being part of the most significant gay rights case in history.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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