Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Supreme Court

Prop 8 Plaintiffs File SCOTUS Brief Calling on Court to Recognize Marriage Equality for All: READ IT

Plaintiffs in the federal challenge to Proposition 8, Hollingsworth v. Perry, filed the one and only brief that they will file with the Supreme Court prior to hearings in late March.

Read the full brief, AFTER THE JUMP...

Olson-boiesSaid Plaintiffs’ attorneys, led by Ted Olson and David Boies, in the brief:

“Because of their sexual orientation—a characteristic with which they were born and which they cannot change—Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships.  They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future and their most intimate and private dreams...

...Although opening to them participation in the unique and immensely valuable institution of marriage will not diminish the value or status of marriage for heterosexuals, withholding it causes infinite and permanent stigma, pain, and isolation.  It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate.  That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans.  This badge of inferiority, separateness, and inequality must be extinguished. When it is, America will be closer to fulfilling the aspirations of all its citizens.”

Added Plaintiffs’ counsel Theodore J. Boutrous, Jr. in a press release:

"This case is about marriage and equality.  The Plaintiffs we represent are two loving couples who, like millions of other gay and lesbian Americans, are being denied the right to marry and the right to be treated with equal dignity and respect under the law, principles that are deeply rooted in our constitutional tradition. The brief that we have filed today demonstrates that Proposition 8 and laws like it are irrational and discriminatory."

The Court will hear oral argument in Perry on March 26, 2013. They will hear arguments in the DOMA case, United States v. Windsor, on March 27.

Read the full brief, AFTER THE JUMP...

Perry Respondents' Merits Brief by

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  1. Bless them

    Posted by: Lars | Feb 21, 2013 12:28:08 PM

  2. i don't really like their reliance on it being something we're "born with" -- it shouldn't matter.

    also, the pain isn't infinite. if they mean that the pain is great, they should say that instead of something inaccurate.

    just read that snippit of the brief above, but wish it were better-written.

    Posted by: me | Feb 21, 2013 12:31:18 PM

  3. @ME

    Say whatever you want in the brief you file. We would not even be reading this post if Boies and Olsen had not initiated this effort. While it could have been done differently, the point is, no one else did.

    Posted by: voet | Feb 21, 2013 12:44:47 PM

  4. ME: I too wince at some of the assertions here and at the way in which they're stated. But that's the way in which legal arguments are made. This isn't a social argument. The understandable counter-arguments you make here would make a part of the opposition's answer.

    Posted by: Paul Bunten | Feb 21, 2013 12:44:54 PM

  5. these two men are incredibly smart and strategic and every single word of that is considered...they are five steps ahead of everyone else and know the impact of every word...yes expect the foes to say you cant prove that you were born gay...but you also cant prove that are born straight....and anyway im sure this is something they want the SCOTUS to debate...

    Posted by: mike | Feb 21, 2013 12:54:38 PM

  6. Add:
    "And this stigma of inequality must be extinguished, just as the shameful badge of 'separate but equal' used against another minority was extinguished."
    It wasn't an acceptable concept before the law then, and it isn't an acceptable concept before the law now.

    The Law is demeaned by submissions which support a continued discrimination based on race or on sexual orientation.
    That this manifest discriminatory amendment comes before this court is an affront to the very basis of Constitutional Law and the precedents already established.

    Posted by: JackFknTwist | Feb 21, 2013 1:13:13 PM

  7. I just finished reading the entire brief and it is powerfully written. It thoroughly and meticulously challenges, questions, answers, and defends our rights as citizens of this country, and our protection under the fourteenth amendment. I recommend it be read from beginning to end. It concludes with: "Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships. They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future and their most intimate and private dreams."

    Posted by: ML | Feb 21, 2013 1:48:45 PM

  8. @ME
    The "born homosexual" is important to this case, just as born being colored was important to racial discrimination. I've been this way my entire 70 years and I've experienced discrimination which is infinite in that it has always been in my memory. This brief is everything it should have been and I salute & thank the legal team.

    Posted by: Jack McFadden | Feb 21, 2013 2:31:45 PM

  9. ok, but we can't discriminate against people's religion, and that's a choice. so my point is it shouldn't matter. if we need to make a less-sophisticated article for less-sophisticated justices, that's fine, but unfortunate.

    Posted by: me | Feb 21, 2013 3:16:56 PM

  10. Ambrose Bierce famously defined "jury" as "12 men brought together to determine which side has the better lawyer." If that is what happens here, we will win in Hollingsworth. Unfortunately, we likewise will lose in Windsor, thanks to Paul "I -made-my-deal-with-the-Devil" Clement and our pathetically inadequate Solicitor General.

    Posted by: John | Feb 21, 2013 3:43:48 PM

  11. Don't get sidetracked by the born that way or not born that way argument. The Brief at page 32 quotes then-Judge Alito defining an "immutable characteristic" to be something "the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." Nuff said.

    Posted by: John | Feb 21, 2013 3:49:22 PM

  12. The language they use is entirely strategic... they're backing that blowhard Scalia into a corner.

    I cannot wait for the party in the street once these decisions come down- we'll either be celebrating like never before, or raising our voices like never before.

    Increasingly, the world is watching.

    Posted by: Pete N SFO | Feb 21, 2013 5:13:52 PM

  13. Perhaps some of you are not as versed in legal briefs and pleadings as I am. It's not a manifesto. It's one of the most clear and concise legal briefings I can remember, and - since I'm also well-versed in the contorted legal history of Prop 8 - I find it states "our" side's assertions and conclusions quite well.

    Don't quibble with the immutability (born that way) argument. Sure, it shouldn't matter one way or the other. But immutability is one of the factors that would allow sexual orientation matters to be subject to heightened scrutiny by the court. It's in the brief for a reason. Everything is in there for a reason.

    I recommend you read this under the assumption that Olson and Bois know what they are doing.

    Posted by: Zlick | Feb 21, 2013 5:18:31 PM

  14. @zlick - point taken. thank you.

    Posted by: me | Feb 21, 2013 6:14:57 PM

  15. Of course the immutability argument is needed - if sexuality was like an off/on switch then we'd have no case.

    Posted by: Anthony | Feb 21, 2013 10:26:22 PM

  16. @John, by that reasoning, the Affordable Care Act would have been knocked down. It wasn't. Justices are not juries. People make too much of the spectacle at oral arguments. The briefs are where the real work is done.

    Posted by: Lars | Feb 21, 2013 11:05:10 PM

  17. Oh an check out the top of page 24. Love how they throw Scalia's words (from his Lawrence dissent) back at him. Delicious.

    Posted by: Lars | Feb 21, 2013 11:06:24 PM

  18. I like AFER's filing, but you really ought to read the City and County of San Francisco's brief. Wow.

    I don't see how anyone, reading the three briefs, could decide against us.

    Posted by: Randy | Feb 22, 2013 5:17:19 PM

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