Obama has 24 hours to file Prop 8 gay marriage brief. Will he?

The Deadline to File a Prop 8 Brief is Thursday, February 28

With 24 hours left before the final deadline to file a brief in the upcoming historic Supreme Court case deciding whether California’s Proposition 8 (Prop 8), which repealed the right of gay couples to marry in that state, is constitutional, it is still unclear if the Obama administration will file.

While the President did file a brief the other day in the sister-case before the Supreme Court, challenging the Defense of Marriage Act (DOMA), which bans legally-wed gay couples from receiving federal marriage benefits (among doing other things), he has so far not indicated a willingness to do so in the Prop 8 case.  And both legal and political experts I’ve spoken to do not understand why not.

Lawyer challenging Prop 8 Urges Brief

The first indication that it might prove helpful for the administration to file a brief in the Prop 8 case came from the attorneys defending gays and lesbians in the case.  GOP super-attorney Ted Olson, who is co-counsel in the case with Democratic super-attorney David Boies, said this past December that a brief from the administration would be helpful.  Specifically, Olson said such a brief would have “great effect.”  Olson himself was solicitor general under President George W. Bush, i.e., the administration’s top lawyer arguing before the Supreme Court.  So clearly Olson’s opinion on the value of such a brief carries some weight.

Top Gay Marriage Lawyer Urges Prop 8 Brief

A day after Olson, we heard from the top gay rights lawyer working on marriage cases, Evan Wolfson of Freedom to Marry, who also urged the administration to file a brief in the Prop 8 case: “President Obama and the Justice Department should absolutely urge the Supreme Court to restore the freedom to marry in California,” Wolfson told Chris Geidner at Buzzfeed.

Former top Clinton aide, on gay rights matters, Richard Socarides, told Geidner that an administration brief could prove “an important persuasive factor considered by the court. It is, after all, the opinion of the government.”

NYT Urges Prop 8 Brief

The NYT has urged to the President to file a brief as well:

Prop 8

HOLLYWOOD, CA – NOV 8: Young lady holds sign in protest against prop 8 November 8, 2008 in Hollywood California. Daniel Monterroso / Shutterstock.com

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.

60+ Companies and 100+ Republicans File Prop 8 Briefs

And it’s not just them.  This week, some 60+ top American companies are signing on to a brief opposing Prop 8 and supporting marriage equality.  The companies include Apple, Alcoa, Facebook, eBay, Intel and Morgan Stanley.

Also this week, 100+ Republican officials signed on to a brief urging the Supreme Court to overturn Prop 8, and side with gay Americans.  It’s a veritable who’s-who of senior Republican officials signing on to the brief.  I just went through the entire list, and as someone who’s worked in Washington forever, I can tell you, these are some GREAT names.  I’m actually quite surprised at how prominent the signatories are.

Now, sure, most of them aren’t in office.  And sure, we wish more Republicans in office would come out and support the greater good on so many issues.  But still, we’re dealing with the GOP here, not the Democratic Party.  It’s still something for people of this caliber to publicly come out for gay marriage at all, considering the official position of their party, and considering their party is still run by a rather conservative fringe.

Some of the more prominent names on the list include:

  • Ken Mehlman, Chairman, Republican National Committee, 2005-2007
  • David D. Aufhauser, General Counsel, Department of Treasury, 2001-2003
  • John B. Bellinger III, Legal Adviser to the Department of State, 2005-2009
  • Katie Biber, General Counsel, Romney for President, 2007-2008 and 2011-2012
  • Mary Bono Mack, Member of Congress, 1998-2013
  • William A. Burck, Deputy Staff Secretary, Special Counsel and Deputy Counsel to the President, 2005-2009
  • Alex Castellanos, Republican Media Advisor
  • Paul Cellucci, Governor of Massachusetts, 1997-2001, and Ambassador to Canada, 2001-2005
  • Mary Cheney, Director of Vice Presidential Operations, Bush-Cheney 2004
  • Jim Cicconi, Assistant to the President & Deputy to the Chief of Staff, 1989-1990
  • James B. Comey, United States Deputy Attorney General, 2003-2005
  • Kenneth M. Duberstein, White House Chief of Staff and Assistant to the President, 1981-1984 and 1987-1989
  • Lew Eisenberg, Finance Chairman, Republican National Committee, 2002-2004
  • Benjamin Ginsberg, General Counsel, Bush-Cheney 2000 & 2004
  • Carlos Gutierrez, Secretary of Commerce, 2005-2009
  • Stephen Hadley, Assistant to the President and National Security Advisor, 2005-2009
  • Richard Hanna, Member of Congress, 2011-Present
  • Michael Huffington, Member of Congress, 1993-1995
  • Jon Huntsman, Governor of Utah, 2005-2009
  • David A. Javdan, General Counsel, United States Small Business Administration, 2002-2006
  • Gary Johnson, Governor of New Mexico, 1995-2003
  • David Kochel, Senior Advisor to Mitt Romney’s Iowa Campaign, 2007-2008 and 2011-2012
  • Greg Mankiw, Chairman, Council of Economic Advisers, 2003-2005
  • Kevin Martin, Chairman, Federal Communications Commission, 2005-2009
  • Michael Powell, Chairman, Federal Communications Commission, 2001-2005
  • Deborah Pryce, Member of Congress, 1993-2009
  • Kelley Robertson, Chief of Staff, Republican National Committee, 2005-2007
  • Ileana Ros-Lehtinen, Member of Congress, 1989-Present
  • Ken Spain, Communications Director, National Republican Congressional Committee, 2009-2010
  • David Stockman, Director, Office of Management and Budget, 1981-1985
  • Jane Swift, Governor of Massachusetts, 2001-2003
  • Michael E. Toner, Chairman and Commissioner, Federal Election Commission, 2002-2007
  • Nicolle Wallace, Assistant to the President and White House Communications Director, 2005-2008
  • William F. Weld, Governor of Massachusetts, 1991-1997, and Assistant U.S. Attorney General (Criminal Division), 1986-1988
  • Christine Todd Whitman, Governor of New Jersey, 1994-2001, and Administrator of the EPA, 2001-2003
  • Meg Whitman, Republican Nominee for Governor of California, 2010

Filing a Prop 8 Brief Is Appropriate and Helpful

I don’t know how the administration can plausibly justify not filing a brief by Thursday.  The administration would argue, I’m sure, that they would only file a brief if it were 1) appropriate and 2) helpful to do so.

Well, Ted Olson was the lawyer responsible for defending such briefs before the Supreme Court in the Bush administration, so he should know if it’s appropriate or not.  And as for whether such a brief is helpful, if the lawyers representing the gay community in this case think it would be helpful, and if the top gay rights lawyer in the country working on the marriage issue  for the past 20+ years thinks that it would be helpful, and no top gay rights lawyer has indicated publicly that it wouldn’t be helpful, then I think it’s helpful.

So why is there no brief?

Third Hidden Reason Obama Won’t File Prop 8?

Unless there’s a third reason, unrelated to whether filing the brief is appropriate or helpful.

We know that in the past the Justice Department has not always been the gay community’s best ally, particularly during Justice’s full-throated support of DOMA in the first years of the Obama administration.  During that time, Justice put other interests ahead of our civil rights, continually claiming (falsely) that they had no option but to defend DOMA in court.  We now know that to be untrue.

It’s entirely possible that the Justice Department, or someone else in the Obama administration, has found a non-gay reason for why they don’t want to file a brief in the Prop 8 case.  They’re afraid that somehow, somewhere, in some way filing a Prop 8 brief will negatively affect some other unrelated thing that they care about.

It’s just a hunch. But it’s the most logical explanation I can find for why no brief has been forthcoming in light of the overwhelming evidence in favor of them filing such a brief.

Either way, if no brief is filed, the administration is going to have to come up with a much better explanation for their actions.  The current non-explanation is not only not cutting it (triple negative, I know), but considering that everyone and his brother has now filed a brief in the case – even the Mormons have weighed in (spoiler alert: the Mormons have chosen the gay-bashing side) – the administration’s absence runs the risk of speaking volumes to the court, and beyond.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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40 Responses to “Obama has 24 hours to file Prop 8 gay marriage brief. Will he?”

  1. Butch1 says:

    I’m not going to hold my breath. I think his silence right down to the eleventh hour is revealing enough. One shouldn’t have to beg one’s “friends” to help.

  2. JDS says:

    The ball is rolling, it’s gaining momentum, and the direction it’s traveling favors same sex marriage and other GLBT rights.

    Less than 10 years ago same sex marriage didn’t exist. Now it does in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and Washington DC. The number of states allowing it seems to increase in each election.

    The Supreme Court may slow things down, possibly even set them back but it doesn’t appear that support for gay rights is going away.

    As far as President Obama goes: Call him any name you like if it makes you feel better. However, he’s gotten elected twice, his Health Care bill signed into law and it stood the test of the Supreme Court, Chuck Hagel was confirmed, and he’ll probably appoint at least one -possibly two- Justice(s) before his second term ends. Like him or not, your choice …… but I wouldn’t count him out just yet. On Gay issues he’s pretty clear on where he stands and the Supreme Court knows his position with or without legal brief.

  3. Don Chandler says:

    Yeah, she’s a ceo now and wears the face of the corporation again. When she ran as governor, she wore the face of a conservative republican. But I don’t care, I’m happy to see a change.

    And, it’s good news. I think Olsen wants to change the republican party…getting businesses to accept marriage equality is all good. Lets see if Olsen/Boise can change the republican Supremes….

    Now if Obama doesn’t filie an amicus brief. that will send a message to the whole supreme court, liberal/conservative, that he is not on board….that would just be awful: protecting the name of an institution over protecting the rights of a class of people that have been been productive to society but disrespected as a minority…constitutional no-brainer. And now, not only is the entire california guv against prop 8, but so are many CA republican leaders….it’s not a popular measure in Ca….

    Reading the Ca Supreme court ruling upholding prop 8, I couldn’t help but think that they were compromising what is right with what is politcally safe….Well, it’s not safe anymore. Another political reason Meg might have changed–she needs centrist support to be governor or hold high political office in CA and the tide has changed.

    Hope Obama leads.

  4. FLL says:

    Although I detest the Romney/Boehner apologists who follow Ronald Reagan’s 11th commandment (“never speak ill of a fellow Republican”), I must give two current Republican congressmen their due because they were among the over 100 Republicans who signed the recent amicus brief opposing Prop 8. One of those current congressmen is Richard Hanna (R) of New York. The other is our very own Cuban-American congresswoman from right here in South Florida, Ileana Ros-Lehtinen (R). Her sentiments are very much the same as those of young and middle-aged Cuban-Americans (who generally despise Marco Rubio) when she says the following:

    “We’re calling on the Supreme Court to correct this injustice and to bestow constitutional freedoms for all,” Ros-Lehtinen said in a statement to The Miami Herald. “It should not be constitutional that we continue to deny to LGBT Americans rights enjoyed by others. We must act now to ensure the rights guaranteed by the U.S. Constitution are applied to all Americans.”

    Metro Weekly has an interesting article (link here) about the reticence of congressional Democrats to file an amicus brief in the Prop 8 case. Pelosi comes very close to calling for the Supreme Court to strike down Prop 8:

    “By taking up the Prop 8 case, the Supreme Court will have the opportunity to make a strong statement that laws, in California and nationwide, must not target the LGBT community unfairly and that families across our state and our country deserve fair and equal treatment under the law,” Pelosi said in a statement in December after the Supreme Court announced it would hear arguments in the Proposition 8 case. “We have now reached a landmark moment in the history of civil rights in our nation.”

    But that’s just a statement to the press. An amicus brief would be better.

  5. Butch1 says:

    ” the administration’s absence runs the risk of speaking volumes to the court, and beyond.”
    Perhaps, our “Fierce Advocate” has always been untruthful from the beginning and really was just telling another lie just like all of the other ones he’s been telling to get himself elected and re-elected.

  6. karmanot says:

    A thong is easy to hide—maybe that’s it.

  7. FLL says:

    Setting the bar high is always a good thing. That’s how humanity makes progress. Since you mentioned other presidents, I’ll set the bar high. I think the country made a mistake by not going with Howard Dean’s candidacy in 2004. That’s my standard, although the vast, vast majority of politicians look very cynical and self-serving in comparison.
    I suppose Howard Dean is the exception that proves the rule.

  8. jomicur says:

    Yep, everyone critical of Obama, for whatever reason at all–his foot-dragging, his waffling, his drone assassinations, his toadying to Wall St., his giving the Republicans 98% of what they want, any reason at all–is a racist. But then I said that in my original post, didn’t I? Why doesn’t it bother you ‘bpts that you’re so laughably predictable?

    And for the record, who exactly have you heard deny that Obama has advanced the status of the gay community? You’re absolutely right when you say he “has advanced gay rights further (far more) than any of his predecessors.” More than Millard Fillmore, Rutherford B. Hayes or even George W. Bush. But that’s setting the bar mighty low, isn’t it? If that’s the best defense of the man you can come up with, why not just give up and watch TV?

  9. nicho says:

    The brief may not sway the justices, but it will send a message to the country. Failing to file a brief is sending,a loud and clear message. Obama has bought into the segregationists’ “states rights” agenda.

  10. nicho says:

    Operative words here: “We like Fox”

  11. Skeptical Cicada says:

    Exactly. Worse, I think it makes them look like they were completely insincere in calling for heightened scrutiny in the DOMA appeal.

  12. TeaTime says:

    No, like Fox, we just like laughing and watching your heads (you and John) explode with the realization that it’s the “Black Man” that has advanced gay rights further (far more) than any of his predecessors. As an example: http://www.huffingtonpost.com/2013/02/27/obama-lgbt-congress-hud_n_2766940.html

    And while no one is saying there shouldn’t be continuing pressure on the “Black Man” (he is in fact POTUS) or that the ball still needs to move forward, to deny that it has not is a sure sign of cognitive dissonance — you want things to change but realizing that that would require the assistance of the “Black Man”. What a dilemma, oh what a dilemma!!!

  13. Ninong says:

    As expected, California Attorney General Kamala Harris filed the state’s amicus brief with the U.S. Supreme Court today urging them to rule against Prop. 8.

    In a 45-page brief, Harris declared that the same-sex marriage ban imposed by Proposition 8 violated the 14th Amendment’s equal-protection and due-process guarantees. The ballot measure’s “sole yet profound effect,” Harris asserted, “was to take away the right of gay and lesbian couples to call their union a ‘marriage’ and to strip loving relationships of validation and dignity under law.”

    Harris further argued that the conservatives seeking to uphold Proposition 8 lacked the legal standing to sue. This is the boring-but-potentially important argument the court will consider first when justices hear oral arguments in the Proposition 8 case on March 26.


  14. BeccaM says:

    Except when it comes to expanding executive power, protecting secrecy, and reducing accountability.

  15. FLL says:

    If the Court switches from rational basis to heightened scrutiny in the DOMA case (as the administration is asking), that would be a step with far-reaching implications—in Prop 8 and any number of other cases. Considering the effects of raising the level of scrutiny by the Court, of course one or more of the justices in the DOMA case will ask how heightened scrutiny would apply to a situation like Prop 8. Supreme Court justices are under no obligation to be deferential, and I can even imagine one of them asking why the administration didn’t file a brief in the Prop 8 case if they’re so convinced about using heightened scrutiny. Some justices have been known to get cheeky at times.

  16. karmanot says:

    Thank you. The day Meg Whitman bleats out her concern for the children of gay couples you know her company is in trouble. oh,,,,,,,oppps Poor HP, first Carli Fionina and now Meg. Sad.

  17. karmanot says:

    Bo buried it in the Oval Office closet.

  18. karmanot says:

    Totally agree, except for the soda cracker.

  19. karmanot says:

    It’s not just a matter of courage. Obama might excel at oratory, but lacks the impetus for greatness, lacks the soul for greatness and in the business of running a great, diverse and complex nation, is little more than a bean counting, safe sister bureaucrat.

  20. Skeptical Cicada says:

    By using anti-gay bigotry to help re-elect Bush in 2004, Mehlman ensured that the Supreme Court hearing these gay marriage cases would have a 5-4 Republican majority instead of a 7-2 Democratic majority. He hasn’t begun to undo that harm yet.

  21. nicho says:

    “At the time, I believed the people of California had weighed in on this
    question and that overturning the will of the people was the wrong
    approach,” Whitman wrote. “The facts and arguments presented during the
    legal process since then have had a profound impact on my thinking.”

    What’s probably had a more profound impact on her thinking is that when HP tried to recruit some whiz-bang software engineer from MA or NY, he/she doesn’t want to move to state where his/her marriage will be disrespected. That really screws up your hiring. I know if I were working in MA, making a good wage, and you asked me to move to CA, I’d have to think long and hard.

  22. nicho says:

    He inherited a mess from the guy who was president for the last four years.


  23. Tornado says:

    Remember how much Ken Melman spoke up when it could have done some good? He actually helped the Republicans use gay civil rights as a wedge issue during the Bush catastrophe and look how many of them on the list served during those years. What about Mary Cheney? Remember how much she spoke up? Or any of those other Republicans. If any one of them were still in office or in any elected political position with the Republican party they wouldn’t have said a word much less signed this brief. It doesn’t take any courage to sign onto this since it is obviously going to be ruled unconstitutional and all of them are pretty much out of politics. Big f-ing deal.
    The justices that were going to vote for and against prop 8 are still going to vote the same way, A legal brief wont change anything one way or another.

  24. jomicur says:

    Hey, give him a break. He has a full plate. He’s playing a game of umpty-leven dimensional chess. He inherited a mess from the guy who was president for the last four years. You progressives don’t understand how government works. Wait until after he’s re-elected–you’ll see how pro-gay he is then. If you criticize him you’re a racist. Etc., etc., etc.

    Just thought I’d save the O’bots the trouble of posting all that. ‘Bye, now.

  25. BeccaM says:

    …and who has already publicly stated he’s in favor of overturning Lawrence, to allow states to pass anti-sodomy laws again…

  26. BeccaM says:

    When it comes to social issues, LGBT rights especially, this president and his administration, as well as his party, have been prisoners of their own cowardice.

    Long ago, I read a saying, that one of the most basic skills needed to be perceived as a leader is to get out in front of a crowd and convince them you’re taking them to where they were going to go anyway. Strangely enough, this is all it would take right now, given the fact that an increasingly solid majority is in favor of full civil rights for LGBT Americans, including marriage, adoption, and protections from discrimination.

    Unfortunately, to be a real leader, you have to get in front of that crowd and lead them to a better place, a direction they might not have been going. Or to get them to the goals faster than their own inclinations might have led them. This, however, requires courage and convictions, not merely triangulation and polling.

    Leadership is what gave us the civil rights laws in the 1960s, as well as desegregation and anti-discrimination laws. Political homophobia is why we have a president and his party continuing to try to split the baby and keep all sides happy (even though he and they cannot do anything the GOP would support, even the GOP’s own proposals). As Skeptical Cicada notes below, the administration is trying to find ways to argue there really isn’t a constitutional right to marriage or freedom of association or equal protection under the law for LGBT Americans.

    And as Nicho says, this is really sad because this here represents an opportunity to show real courage, with little more than a well-written Amicus brief — and they will not take it, because they do not truly believe this is important.

  27. Naja pallida says:

    Either that or he got confused and accidentally filed his boxers instead.

  28. Skeptical Cicada says:

    Sounds like standard Democratic double-talk: “We think it’s better for you if we don’t lift a finger to help you.” I remember that as a self-serving excuse for not opposing the marriage amendment in North Carolina too.

    Nothing under the sun will EVER get Scalia, Thomas, or Alito to vote for gay marriage–not broadly, not narrowly, not ANY way.

  29. nicho says:

    Whether he files the brief or not, he has still lost the opportunity to show any type of political courage. He’ll only be the last guy in in a game of follow the leader. But that’s nothing new!

  30. FLL says:

    Yet more nonsensical statements on the part of Administration lawyers are quoted in this article from Business Insider:

    “Obama Administration Fears Supporting Gay Marriage Could Annoy Conservative Justices”

    The Obama administration is afraid of annoying Scalia?! A man who is considered a likely candidate for dementia?

  31. Skeptical Cicada says:

    Here, John: “The Wall Street Journal, citing unnamed sources, reported Tuesday evening that the administration was still weighing its decision, and is ‘looking at options that fall short of embracing a constitutional right’ to same-sex marriage.” http://www.nytimes.com/2013/02/28/us/politics/gay-marriage-brief-gets-more-republican-support.html

    It’s not some non-gay reason; it’s the same old sniveling Obama cowardice on gay issues.

  32. Skeptical Cicada says:


  33. FLL says:

    During the 2012 presidential campaign, people were bound to ask Obama what he thought the role of the states was vis-a-vis marriage equality. The best answer would have been a simple civics lesson: Marriage law is determined at the state level—unless and until it conflicts with the U.S. Constitution, in which case the judiciary corrects the situation, as it did in 1967 when it struck down state laws banning mixed-race marriages. That is part of the system of checks and balances, and all Obama had to do was repeat that simple fact. Instead, Obama chose to use an ill-conceived states rights’ argument to court electoral votes in swing states. I think voters would have given Obama more respect, and more points for honesty, had he used a simple explanation of checks and balances concerning the states and the federal judiciary.

    But that is all water under the bridge. Obama’s only excuse for the vacuous states rights’ argument was electoral votes in swing states, and since the election is over, that excuse has vanished. If the Solicitor General files a brief opposing Prop 8, Obama will look like a president who is cynical during elections but useful when the election has passed. 80 high-profile Republicans, dozens of major corporations, the New York Times—basically, everybody and their brother—have filed an amicus brief opposing Prop 8. In that context, filing a brief will be the only way that Obama will look consistent and reasonable. If there is no brief forthcoming, he’ll instead look like shit on a soda cracker.

  34. Don Chandler says:

    I expect Obama to file a brief. I’d be disappointed if he didn’t. As some folks on your blog have suggested, it’s smart to wait ’til the last moment to file a brief. To do nothing at all would not be wise.

    On the bottom of your list is Meg Whitman’s name. I read some of her justifications from the LA Times:

    “At the time, I believed the people of California had weighed in on this question and that overturning the will of the people was the wrong approach,” Whitman wrote. “The facts and arguments presented during the legal process since then have had a profound impact on my thinking.”

    Whitman wrote that there is “no legitimate, fact-based reason for providing different legal treatment of committed relationships between same-sex couples,” calling marriage “the fundamental institution that unites a society.”

    “It is the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability,” she wrote. “It makes no different whether the marriage is between a man and woman or a woman and woman. Marriage makes society better.”

    She continued: “Laws like California’s Proposition 8 do not fortify traditional marriage, they merely prevent hundreds of thousands of children of same-sex couples from enjoying the benefits that accrue from marriage…. Same-sex couples and their children should have equal access to the benefits of marriage.”

    Not that hard to file a brief.

  35. nicho says:

    Please get his name right. It’s Prettywords, not Prettypants. You may be confusing him with George W. Bunnypants — but then it’s getting so hard to tell them apart.

  36. Skeptical Cicada says:

    John, please don’t start already making excuses for President Precious Prettypants. He always has to fret and prance and agonize before agreeing to do anything to support the faggots. He has never gotten it, doesn’t get it, never will get it.

    Notice that ENDA executive order still languishing in a drawer somewhere–for no legitimate reason.

  37. nicho says:

    Meanwhile, NFL teams are quizzing prospects about their sexual orientation.


  38. nicho says:

    Maybe the dog ate their brief.

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