1. me says

    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.

  2. voet says


    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.

  3. Paul Bunten says

    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.

  4. mike says

    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…

  5. says

    “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.

  6. ML says

    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.”

  7. Jack McFadden says

    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.

  8. me says

    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.

  9. says

    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.

  10. says

    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.

  11. Pete N SFO says

    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.

  12. Zlick says

    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.

  13. Lars says

    @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.

  14. Randy says

    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.

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