California Gay Marriage Ban Faces New Legal Hurdle

Same-sex marriage will face its latest legal test on Tuesday, when California's Supreme Court hears arguments over whether a judge's prior decision to strike down a gay marriage ban can be appealed.

The hearing represents the latest phase in the tortuous legal battle over Proposition 8. After federal Judge Vaughn Walker declared the law constitutional, 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.

California's governor and attorney general -- then Arnold Schwarzenegger and Jerry Brown, respectively -- both declined to appeal Walker's ruling. 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.

Simply because they were proponents, or they raised money or supported or financed advertising for Proposition 8, they don't have the right to substitute themselves for the constitutional official In California that does have that right under the California constitution, Theodore Olson, who will be arguing the case, told NPR.

Supporters of the ban have maintained the opposite, noting that California's robust process for citizen sponsored ballot measures should allow citizens to also participate in legal battles.

They are the very best suited individuals to stand in for the people who by majority vote exercised their right to pass a Constitutional amendment by initiative and somebody has to be authorized defend it, and who better than the official proponents? attorney Andrew Pugno said. Essentially the governor and attorney general would be exercising a veto over the people's vote if they are able to essentially allow an initiative to be nullified simply by standing back and doing nothing when its challenged.

The California Supreme Court's ruling will determine whether the case takes on national significance. 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.