Who will get to defend Prop 8?

The California Supreme Court heard arguments Tuesday over who has the right to defend Proposition 8, the state's voter-approved ban on same-sex marriage.

Gov. Jerry Brown and the state attorney general are refusing to appeal a federal court's decision that Prop 8 is unconstitutional.

Protestors took to the steps of the California Supreme Court Tuesday, holding signs in support of the proposition.

One couple named Luke and Nadia held a sign that read "STOP JUDICIAL TYRANNY" in red block letters. The duo declined to share their full names in fear of retaliation. They'd come to the courthouse in San Francisco because they voted for Proposition 8, and say they want their votes to count.

"Without question we should definitely be able to defend a law that was passed. Somebody should. That's just a basic principle of democracy and the rule of law in society," said Luke.

Luke and Nadia are two of the five million Californians who voted in favor of the proposition. Their side carried the day in November 2008, but has been struggling in the courtroom.

Inside the California Supreme Court attorney Charles Cooper argued that the ballot's sponsor, ProtectMarriage.com, has a right to represent those voters, precisely because state officials won't. Many of the justices seemed inclined to accept that argument and emphasized that California courts have liberally and generously granted sponsors of initiatives the right to intervene in other cases involving ballot measures.

Ted Olson is the attorney for two gay couples that want to marry and argued that initiative sponsors have no right to "stand in" for state officials.

"That is not an implicit power in the initiative process because there's nothing in the initiative process in the California constitution that says that power exists," he said.

Olson also argued that Prop 8 sponsors had no particularized or special interest that gives them standing to defend the measure in court.

Goodwin Liu, the state Supreme Court's newest justice, questioned Olson's argument saying, "You know, your brief says that the initiative proponents here are situated fundamentally no differently than any other supporter who spent money or voted for the proposition. Doesn't that really blink reality?"

Chief Justice Tani Cantil-Sakauye boiled down the issue to one central question: "If there's no one to defend Prop 8," she asked, "doesn't that make the initiative process illusory?"

The justices will work to answer just that in next three months.