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Hearing on Federal Prop. 8 challenge to take place today

Attorneys for two couples who wish to be married but cannot because of Prop. 8 will argue today at a hearing in favor of allowing cameras in the courtroom during the federal trial on the unconstitutionality of the initiative. The trial is set to begin January 11.

Launched by the American Foundation for Equal Rights, the unprecedented federal court challenge to Prop. 8 -- Perry v. Schwarzenegger – was brought in May 2009 by attorneys Theodore Olson and David. Olson and Boies notably faced off in the Bush v. Gore U.S. Supreme Court case of 2000.

The defendants in the case – who supported Yes on 8- oppose expanding public access to the trial through video. As it stands, people could only watch the trial at the courthouse. Chief Judge Walker of the U.S. District Court, Northern District of California, who is trying the case, has also received filings in support of cameras in the court from a wide range of national and local media outlets.

"For too long, the debate over marriage equality has taken place in the political arena, which is dominated by spin and scare tactics. This unprecedented trial, through evidence and witness testimony, will reveal the true harm and unconstitutionality of measures like Proposition 8. These important proceedings should be available to people across the country," said American Foundation for Equal Rights Board President Chad Griffin. "The U.S. Constitution guarantees every American equal protection under the law, and our courts exist to protect equality when it is diminished by measures like Proposition 8."

At trial, Chief Judge Walker will weigh witness testimony, documents and other evidence, and arguments presented by some of the nation's most distinguished attorneys.

Olson and Boies represent Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo, two same-sex couples who wish to be married but have been denied marriage licenses because of Prop. 8.

“"We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great," said the couples in a joint statement.

According to the lawsuit, "[The] unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution".

The suit also claims that Prop. 8 violates the Due Process Clause of the Constitution by impinging on fundamental liberties; violates the Equal Protection Clause of the Fourteenth Amendment; and singles out gays and lesbians for a disfavored legal status thereby creating a category of "second-class citizens." In addition, the suit claims Prop 8 discriminates on the basis of gender and sexual orientation.

The defendants have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a compelling government interest. Attorneys for the plaintiffs feel that the initiative fails to advance even a single legitimate interest. Tellingly, when asked by Chief Judge Walker at an Oct. 14 hearing to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants' attorney answered "I don't know."

The case against Prop. 8 has proceeded with uncommon speed toward trial.

"Given that serious questions are raised in these proceedings the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims,” said Chief Judge Walker in an order issued after the first hearing in the case. “ The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial."

According to the suit, "More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man," referring to the Court's decision in the case Loving v. Virginia.

Griffin noted that near the time when the Supreme Court struck down interracial marriage bans with its 1967 Loving v. Virginia decision, a Gallup poll found that 73 percent of Americans did not approve of interracial marriage.

While Gov. Arnold Schwarzenegger and Attorney General Jerry Brown were named defendants in their official capacities, Prop. 8 is being defended in court by the prominent conservative organization, Alliance Defense Fund. Gov. Schwarzenegger earlier filed a brief that did not dispute the unconstitutionality of Prop. 8, and called for swift action by the courts.

Attorney General Brown, the state's chief law enforcement officer, filed a similar brief agreeing with the plaintiffs' position that Prop. 8 is unconstitutional.

The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs' team as co-counsel, with a specific focus on the negative impact Prop. 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California's previous same-sex marriage ban.

Olson is a former U.S. Solicitor General and is widely regarded as one of the nation's preeminent constitutional lawyers, and has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.