During the trial, the initiative was defended by its supporters. But at the appellate level, the parties involved usually have to show that they would be directly affected by the original ruling. Because Walker found that same-sex marriages do not harm heterosexual marriages, the supporters of the ban face significant obstacles to their argument that they are directly affected. A more recent twist in the case is a move by Imperial County to intervene at the appellate level as a governmental defender of Proposition 8, an effort that was rejected at the trial level.

Had California's top officials defended Proposition 8, their participation would have ensured that the appellate court would consider the constitutional issues. If the measure's supporters are found to lack legal standing, same-sex marriage will win the day in California. But this would make for a less-than-satisfying victory. The rights of gay and lesbian couples deserve to be argued -- and upheld -- on their merits rather than on a legal technicality.