Prop 8 Appeal Likely to Proceed

The legal battle over California's same-sex marriage ban could be bound for the U.S. Supreme Court.

Sponors of Proposition 8, a ballot proposal which prohibited gay marriage, seem likely to win the right to appeal a judge's decision to strike down the law. Judges on the California Supreme Court appeared to be sympathetic to supporters of the law, who maintained that the state's robust citizen-sponsored ballot initiatives process allowed them to defend a law that they had introduced.

The hearing represents the latest phase in the tortuous legal battle over Proposition 8. After federal Judge Vaughn Walker declared the law unconstitutional, its supporters went to the U.S. Ninth Circuit Court of Appeals. But that court delegated the matter to the state's Supreme Court, which must now decide whether the sponsors of a ballot initiative have the ability to appeal that law in court.

The California Supreme Court's decision is not binding but will nevertheless be consequential -- particularly because if the appeal is allowed to proceed the case could eventually make its way to the U.S. Supreme Court, whose ruling would set a profoundly influential precedent for the legal future of same sex marriage.

California's governor and attorney general -- then Arnold Schwarzenegger and Jerry Brown, respectively -- both declined to appeal Walker's ruling, and California Attorney General Kamala Harris has submitted a brief saying that proponents of successful ballot initiatives cannot represent the state by defending their measures in court. Proposition 8's sponsors have countered that the state's vigorous system for citizen-sponsored ballot initiatives gives them the right to appeal the law's ban.

Members of the California Supreme Court appeared to endorse that view on Tuesday, signaling that they are likely to allow the legal battle over the same-sex marriage ban to continue.

If we agree with your position, it would appear to me that we would nullify the great power the people have reserved for themselves, Justice Joyce Kennard said to the lawyer representing same-sex couples.

You want the federal courts to answer this question with only one side represented? Justice Ming Chin of same-sex marriage supporters.

Chief Justice Tani Cantil-Sakauye asked if the state's interest evaporate[s] when state officials decline to defend a law.