Lawyers encounter political, strategic adversaries over same-sex marriage battle from major legal, human rights groups

To her surprise and disappointment, lawyer Dana Nessel, who will represent April DeBoer and Jayne Rowse from Michigan in this year’s Supreme Court debate over same-sex marriage, has found out that her biggest adversaries aren’t anti-gay groups like the National Organization for Marriage and the Southern Baptist Convention. Rather, they are the poster children of the gay community’s efforts to win widespread mainstream acceptance: the Human Rights Campaign, the Lambda Legal Defense and Education Fund and the ACLU LGBT project.

“Nobody even wanted us to file this case, they all tried to stop us, and even now they’re not helping much,” she says tartly. “The great irony is, we’re the ones going to the Supreme Court.”

It was argued, Nessel says, that a loss in Michigan (or Tennessee or Ohio or Kentucky, all states in the famously conservative Sixth Circuit Court of Appeals) would jeopardize cases in more litigant-friendly states. Nessel, according to Steve Friess’ outstanding piece on Bloomberg.com, was having none of it. “Our clients are a private family, and if they want to pursue procuring rights for their family and nobody else is doing it, I don’t think it’s the place of these organizations to tell private citizens when they should assert their constitutional rights or shouldn’t,” says Nessel who, like her two co-counselors, has worked on the case for free for more than three years. “I have a problem when they try to sabotage a case that’s pending because they’re fearful there won’t be a victory or they don’t want someone else to achieve that victory without their name attached.”

Unfortunately for Nessel, who estimates that the Supreme Court battle will cost upwards of $1 million, is finding the financial well perilously dry. She alleges that because she ignored the advice of the major gay human and legal rights groups, and because she refused to step aside in the case, support has not been forthcoming. “It was basically a matter of ‘If you want to give us your case, we will handle the case and you won’t have to handle it anymore,’” she says. “But there really was not an offer of, ‘Oh, you can still do the case and we’ll give you financial assistance and then whatever kind of other assistance you need in the background.’ It was, ‘We’ll argue your case for you. We’ll take your case.’ We really felt as though we had the ability to do this, we just needed the financial support.”

Nor is she alone. According to Freiss, Laura Landenwich, a private attorney in Louisville, Ky., also recalled Lambda telling attorneys looking to file marriage challenge lawsuits in Kentucky in the summer of 2013 that the state “wasn’t part of the national strategy.” Similar efforts by national groups to discourage plaintiffs seeking to overturn California’s gay marriage ban (known as Proposition 8)—for fear of losing—were documented by New York Times reporter Jo Becker in her controversial best-seller, Forcing the Spring: Inside The Fight For Gay Equality.

For their part, these national organizations have failed to issue a statement against allegation that they, and only they, will decide which cases and whom get to appear before the Supreme Court. While national groups pressured Nessel to back off her critique for this report, unaffiliated activists say blaming her for speaking out is yet another illustration of the problem. “This is the case of our lifetime,” said Bob Witeck, a public-relations strategist who has worked with the Human Rights Campaign and the National Lesbian and Gay Journalists Association, and advises American Airlines on their gay marketing outreach. “If others are raising large chunks of money and they’re not feeding and servicing the lawyers and the litigants in these cases, what are we giving it to? There can’t be weak links. We have to have our ‘A’ game going in. There can’t be any part of this defense that isn’t fully prepared.”

But, at the end of the day, it is worth remembering that Dana Nessel from Michigan will argue one of the cases that may likely go down as the next Miranda, Roe or Brown.