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Prop 8 case: Appeals court to hear two key motions on Thursday

SAN FRANCISCO – The Ninth Circuit Court of Appeals this week will hear two major motions in the Proposition 8 case, setting the stage for rulings by year’s end or in early in 2012.

A three-judge panel will hear oral arguments on:

-- Motion by the pro-marriage supporters to release the Prop 8 trial video

-- Motion by the anti-marriage proponents’ to throw out the case because the judge did not disclose that he is gay

The hearing, which starts at 2:30 pm PT Thursday, Dec. 8, is expected to last two hours.

On Aug. 4, 2010, federal district Judge Vaughn Walker ruled that Proposition 8 was unconstitutional, but anti-marriage foes appealed that decision to the Ninth Circuit. Since then, anti-gay groups have tied up in court Judge Walker’s historical decision ruling that Prop 8 was unconstitutional on several legal principles.

The high-powered legal team led by Ted Olson and David Boies, representing the American Foundation for Equal Rights (AFER), successfully argued why Prop 8 was unconstitutional and discriminatory toward gay and lesbian couples who wish to marry.

“Our case for marriage equality is back on the fast track and we are poised for dramatic progress in the coming months,” said Adam Umhoefer, AFER’s senior project director.

“We have one final step before the Ninth Circuit Court of Appeals affirms the historic Federal District Court decision which found marriage discrimination unconstitutional,” he said. “I am confident that the Ninth Circuit will swiftly confirm the personal freedom of every American.”

AFER offered a preview of what will happen on Thursday.

Release the tapes

In the first hour, Olson will argue that the public has a First Amendment right to see video footage of the historic Prop 8 trial. The District Court has already ruled that the American people have a vested interest in transparent court proceedings, but the Prop 8 proponents appealed that decision. They are trying to keep the video under lock and key because they don’t want anyone to know that they failed in court, where reason and facts matter.

Also arguing that the tapes should be released is a media coalition comprised of The Associated Press, The New York Times, Los Angeles Times, FOX News, NBC News, the Hearst Corp., Dow Jones & Co., and others.

Motion to vacate

In the second hour, Boies will address the proponents’ motion asking that our District Court victory be vacated because the judge who heard the case is gay and in a long-term relationship. The anti-marriage forces are trying everything they can to get the case thrown out because they know that reason and truth are on our side.

This tactic was universally condemned in the media and it took only a day for Chief Judge James Ware to rule against the homophobic motion. We are confident that the appeals court will affirm that being gay has no bearing on a judge’s impartiality, just as courts have historically done with cases involving race, gender and religion.

Hearing to be broadcast

The court has allowed a delayed broadcast of the hearing and has set up remote viewing locations in Pasadena, Calif.; Portland, Ore., and Seattle. You can also follow AFER's live updates from the courthouse on Twitter.