In his letter to the state court, Theodore B. Olson, an attorney for two same-sex couples, said that the question of standing in federal court is a federal constitutional issue, not a state one, and that the California Supreme Court would merely prolong the case by agreeing to answer the 9th Circuit's question.

Olson also argued that well-established law in California denies initiative sponsors the right to represent the state in litigation.

"It is clear that California law vests the attorney general -- not private litigants -- with the authority to represent the state's interest in litigation," Olson wrote.

Erwin Chemerinsky, a constitutional law professor and dean of UC Irvine's law school, said he was not surprised by Olson's argument. Lawyers generally want an issue to be decided by a forum in which they expect to win, Chemerinsky said.