At a hearing in San Francisco on Tuesday morning, California Supreme Court justices seemed inclined to recommend allowing the sponsors of Proposition 8 to appeal a federal trial court ruling striking down the initiative.
The state high court was asked by the 9th U.S. Circuit Court of Appeals to give an advisory opinion on that aspect of the case. The federal appeals court is considering the appeal by the sponsors of the ban on same-sex marriage.
The question before the court is whether state law gives an initiative's sponsors the right to appeal when the state's governor and attorney general refuse to do so.
Chief Justice Tani Cantil-Sakauye said, "An initiative measure is an indication of the voters' will."
She said "the purpose and integrity of the initiative process" are at stake in the question of who can appeal.
"This issue transcends Proposition 8," the chief justice said.
Theodore Olson, representing two same-sex couples, argued that the state constitution gives only the attorney general, not private citizens, the right to appeal in such cases.
But Justice Joyce Kennard said, "It appears to me that to agree with you would be to nullify the great power of the initiative that the people have reserved to themselves."
The court took the case under submission after an hour of arguments and now has 90 days to issue a written ruling.
After the state court rules, the case will go back to the federal appeals court for a final decision.