Before it's all over, the battles over same-sex marriage in California, now focused on Proposition 8, may enrich as many lawyers and take the time of as many judges as any legal issue in the state's history.

Earlier this week, the two sides fought it out before federal Judge James Ware in San Francisco about release of videotapes of the trial last year that led to U.S. District Judge Vaughn Walker's sweeping ruling that Proposition 8 violates the equal protection guarantees of the U.S. Constitution.

The original sponsors of Proposition 8, the gay marriage ban that voters passed in 2008, want to block the release of those tapes; the defenders of gay marriage, along with many media organizations, want them made available. In June, Proposition 8 proponents also tried to have Walker's decision overturned on the ground that he was gay and thus couldn't be impartial. Ware quickly rejected that attempt.

On Tuesday, the two sides will meet again before the California Supreme Court on the question of whether, in view of the refusal of the governor and the state attorney general to defend Proposition 8, the proponents even have the right to defend it in their stead. That'll be the fourth time that the California high court has confronted the gay marriage issue in the past three-plus years.

Tuesday's proceeding was prompted by the U.S. Court of Appeals for the 9th Circuit, which is hearing the arguments of the Proposition 8 sponsors that Walker's decision be reversed.

Before they rule, the appellate judges want to know whether the proponents have standing to pursue their appeal. Because none of the legal precedents is precisely on point, the federal judges kicked the issue, essentially a question of California law, to the state Supreme Court.

It's an important question, not only for this case but for any other legal challenge to an initiative that the state's constitutional officers are unwilling to defend.

Nowhere does the state constitution grant such a power. But as the proponents of Proposition 8 argue, and as some members of the federal court suggested, if the courts deny standing, it would effectively give the governor and attorney general an extra-constitutional veto power, vitiate the initiative process and deny the people what the courts have defined as a "fundamental right."

It's hard to imagine either court doing that. Yet ironically, if the contending parties in the gay marriage cases carefully analyzed their long-term interests, the proponents of Proposition 8 might prefer to be denied standing on the appeals, thus allowing them to blame a single federal judge in San Francisco – and a gay judge at that – for their loss and confining the ruling to California.

Conversely, the defenders of gay marriage suggest they might be just as happy if the proponents of Proposition 8 were given standing to pursue their appeals. There are even reports from AFER, the American Federation for Equal Rights, the challenger to Proposition 8, that its celebrity lawyers, David Boies and Ted Olson, best known as the opposing counsel in Bush v. Gore, believe they could win the gay marriage case in the U.S. Supreme Court.

That may be more of an inside joke than a serious prediction. In an angry dissent in 2003, for example, U.S. Supreme Court Justice Antonin Scalia warned darkly that the court's 6-3 ruling striking down a Texas sodomy law could lead to other decisions overturning "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Would this conservative court ever strike down a ban on gay marriage?

But the more general point made by AFER seems on target: While some red states are still banning gay marriage, the current seems to be running the other way.

In June, New York joined the six other states and the District of Columbia that have legalized gay marriage. Later this month, the military's discriminatory and self-defeating "don't ask, don't tell" policy will come to an end. The Obama administration has also effectively changed sides on DOMA, the federal Defense of Marriage Act.

Meanwhile the polls, both in California and nationally, have trended unmistakably toward support of legal recognition of same-sex marriage. Even in the past year, according to a poll by Gallup in May, the majority of Americans swung from 53 percent opposed to 53 percent in favor. Only Republicans haven't changed their views.

Similarly, according to the Field Poll, California voters have shifted dramatically. In 1977, 28 percent of California voters approved of gay marriage; 59 percent disapproved. In 2008, just before the passage of Proposition 8, roughly half approved, 42 percent disapproved. And always, the young are much more liberal than their elders. No matter what the courts do now, therefore, it's not likely that California's gay marriage ban has a great future.

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Peter Schrag, a retired editorial page editor of The Bee, writes frequently on California issues.

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