California gay marriage ban faces next legal hurdle

Plaintiff same sex couple Jeffrey Zarrillo, left, and partner Paul Katami listen in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

From left to right, plaintiffs same-sex couples Sandra Stier and partner Kristin Perry, and Jeffrey Zarrillo and partner Paul Katami smile in a courtroom before the California State Supreme Court hearing in San Francisco on Tuesday Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

Plaintiff same sex couple Sandra Stier, right, and partner Kristin Perry, right, listen in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the stateís ballot initiative process. (AP Photo/Paul Sakuma)

Rob Reiner, actor, director, producer, writer, and political activist, listens in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

From left to right, California Supreme Court Justices, Joyce Kennard, Tani Cantil-Sakauye, Marvin Baxter, Ming Chin and Goodwin Liu, enter a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

New California Supreme Court Justice Goodwin Liu speaks to attorney Theodore Olson, partly shown at right, in a courtroom during a California State Supreme Court hearing in San Francisco, Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

Attorney Theodore Olson speaks in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

Attorney Theodore Olson, left, speaks in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

Charles J. Cooper, lead attorney for proponents of Proposition 8, argues in front of the California State Supreme Court hearing in San Francisco, Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

1 of 13

Plaintiff same sex couple Jeffrey Zarrillo, left, and partner Paul Katami listen in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) A man walks past a group of people protesting against gay marriage outside a courtroom where the California Supreme Court was hearing arguments in San Francisco on Tuesday, Sept. 6, 2011. Although the legal challenge to California's same-sex marriage ban always has been assumed to be on track to reach the U.S. Supreme Court, the state's highest court is contemplating an issue that could halt the high-profile case in its tracks. (AP Photo/Eric Risberg) Christian Nelson, left, of Oakland, Calif., and Jackie Killens, right, of Salinas, Calif., protest against gay marriage outside a courtroom where the California Supreme Court was hearing arguments in San Francisco on Tuesday, Sept. 6, 2011. Although the legal challenge to California's same-sex marriage ban always has been assumed to be on track to reach the U.S. Supreme Court, the state's highest court is contemplating an issue that could halt the high-profile case in its tracks. (AP Photo/Eric Risberg) Natalya Choban of Sacramento, Calif., protests against gay marriage outside a courtroom where the California Supreme Court was hearing arguments in San Francisco on Tuesday, Sept. 6, 2011. Although the legal challenge to California's same-sex marriage ban always has been assumed to be on track to reach the U.S. Supreme Court, the state's highest court is contemplating an issue that could halt the high-profile case in its tracks. (AP Photo/Eric Risberg) From left to right, plaintiffs same-sex couples Sandra Stier and partner Kristin Perry, and Jeffrey Zarrillo and partner Paul Katami smile in a courtroom before the California State Supreme Court hearing in San Francisco on Tuesday Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) From left to right, plaintiffs same-sex couples Sandra Stier and partner Kristin Perry, and Jeffrey Zarrillo and partner Paul Katami smile in a courtroom before the California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) Plaintiff same sex couple Sandra Stier, right, and partner Kristin Perry, right, listen in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the stateís ballot initiative process. (AP Photo/Paul Sakuma) Rob Reiner, actor, director, producer, writer, and political activist, listens in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) From left to right, California Supreme Court Justices, Joyce Kennard, Tani Cantil-Sakauye, Marvin Baxter, Ming Chin and Goodwin Liu, enter a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) New California Supreme Court Justice Goodwin Liu speaks to attorney Theodore Olson, partly shown at right, in a courtroom during a California State Supreme Court hearing in San Francisco, Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) Attorney Theodore Olson speaks in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) Attorney Theodore Olson, left, speaks in a courtroom during a California State Supreme Court hearing in San Francisco on Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma) Charles J. Cooper, lead attorney for proponents of Proposition 8, argues in front of the California State Supreme Court hearing in San Francisco, Tuesday, Sept. 6, 2011. On Tuesday, the California Supreme Court will be considering whether the sponsors of Proposition 8 have a legal right to appeal the federal court ruling that overturned the same-sex marriage ban, since the governor and attorney general refused to bring such an appeal. The 9th US District Court of Appeals, which has main responsibility for the case on appeal, asked the state court to weigh in on the question it deals with the state's ballot initiative process. (AP Photo/Paul Sakuma)

By Lisa Leff The Associated Press

· September 6, 2011 10:58 am

This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

San Francisco • California's highest court seems inclined to side with backers of the state's same-sex marriage ban in thinking that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

The California Supreme Court heard more than an hour of arguments Tuesday on that question, which could prove pivotal to the future of the voter-approved ban, known as Proposition 8.

Several justices noted that the court has never refused to allow the sponsors of ballot questions to appear before it when measures were challenged.

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.