Olson, Boies file final brief in effort to end stay on marriages during Prop. 8 appeal

Yesterday, the legal team at the American Foundation for Equal Rights, led by Ted Olson and David Boies, filed the reply brief in their effort to lift the stay on California marriages while the appeal proceeds. From AFER’s press release:

[T]he American Foundation for Equal Rights (AFER) and its legal team — led by Theodore B. Olson and David Boies — filed a reply brief in support of its motion with the Ninth Circuit asking that the Court immediately lift an order preventing gay and lesbian couples from marrying in California. That order, issued in August 2010, stayed the injunction issued by the U.S. District Court that barred further enforcement of Proposition 8.

This is the final brief regarding this motion before the Ninth Circuit issues a ruling. If the stay is lifted, it will be the first time that gay and lesbian Californians will be able to legally marry since Prop 8 was passed in November 2008.

AFER also provided some excerpts from its brief, which is can be found here. They argue, quite forcefully, that the anti-marriage forces are unlikely to prevail and that there is no real harm to the homopbobes if same-sex couples can marry (except for “the psychic harm they alleged in living in a society in which loving couples of the same sex may be married.”)

The final paragraph of the brief is especially powerful:

Proposition 8—and the stay that allows it to remain in force—is causing great damage. It is not merely deferring wedding dates, as Proponents suggest. For those near the end of life, it is denying the right to marry outright. But beyond the damage done to loving couples’ wishes to marry, Proposition 8 carries an unmistakable message—transmitted and enforced by the State and tolerated by this Court—that gay men and lesbians are members of a class of persons unworthy of the fundamental right of marriage and the “protection of equal laws.” Each day that California’s constitution stigmatizes and disables Plaintiffs and others like them, it inflicts great and lasting damage. That constitutional injustice must not be allowed to continue.

The haters are perfectly happy with the idea of inflicting great and lasting damage. We should expect more from our courts — and our elected officials.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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