John provided a link to the live oral hearing below. If you missed it, you can see the archived video here. CNN also has a good rundown of the arguments and questions posed by the various justices.
In response to a question posed by Chief Justice Tani Cantil-Sakauye, the attorneys from both sides sparred over whether or not the state’s interest “evaporates” when there is no one to defend it in court.
Charles Cooper, attorney for the ballot sponsors, said California specifically allows voters to directly enact this kind of legislation, and that its official sponsors should be allowed to step in when the state refuses to defend such measures. But he was pressed hard by several justices over whether Prop 8 proponents could ultimately prove actual injury if same-sex marriages were allowed to resume in the state.
However, Theodore Olson, a former solicitor general in the Bush administration and a leading conservative lawyer, said only state officials can defend state laws. He is defending a coalition of same-sex couples and several civil rights groups.
“There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation,” Olson said. “The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry.”
The defender’s of Prop 8 would have one believe it is all about protecting the voter’s rights, but I would argue there is no inherent right to vote on other’s civil rights, period.