The Supreme Court is considering the matter at the request of a federal appeals court that is weighing whether the ban violates the constitutional rights of same-sex couples.
"What the court has before it are questions about how the state's direct democracy rules should be understood to sync with its constitutionally based ideas of representative government," Ohio State University Moritz College of Law Marc Spindelman. "Who speaks for the people and the state – and when? Can unelected officials determine how state law will be defended? Should they be allowed to defend the law when state officials elected by the people to represent them will not? Are state officials who refuse to defend a legal measure on appeal practically exercising a veto right that the rules of direct democracy in California do not allow?
Proposition 8 reinstated a ban on same-sex marriages in California by amending the state Constitution to supersede a California Supreme Court ruling that had legalized gay unions five months earlier. The Williams Institute, a think tank on sexual orientation and the law at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the brief window.