If the nine justices of the United States Supreme Court choose to effectively not weigh in on the merits of California's gay marriage ban, it will likely be because the state's top elected officials all decided to take a pass on its defense.

And that raises an interesting question of its own: do voter-approved initiatives become legal orphans without an official seal of approval?

"Have we ever granted standing to proponents of ballot initiatives?" asked Justice Ruth Bader Ginsburg in the opening moments of Tuesday's oral arguments on Proposition 8.

"No, your honor, the Court has not done that," said Charles Cooper, the attorney representing Proposition 8 backers.

To get to this point, three different top California officials had to decline to defend the 2008 ban -- Gov. Jerry Brown, when he was attorney general in 2010; then Gov. Arnold Schwarzenegger; and, most recently, Attorney General Kamala Harris.

"I decided not to defend Prop 8 in court, because Prop 8 is unconstitutional," said Harris in a satellite interview from Washington, D.C. after she sat in on the proceedings.

But that was not a settled matter of law at the time she, and others, decided not to defend the amendment to the California Constitution. And the legal status of political supporters came into question time and again during Tuesday's one-hour-plus hearing.

"These individuals are not elected by the people or appointed by the people," said Justice Sonia Sotomayor.

The plaintiffs argued that the California Supreme Court, answering a 2011 request from a federal appeals court, determined the political team does -- indeed -- have standing under California's unique initiative system where the authors of a ballot measure are writing laws.

"The [California Supreme] Court said it is essential to the integrity of the initiative process," said plaintiff's attorney Cooper.

But if the justices decide to dismiss the case of Hollingsworth v. Perry on grounds of no legal standing, it does raise the question of how future initiatives will be heard in court in such a situation.

"This is a one-way ratchet as it favors the State," said Justice Anthony Kennedy, "and allows governors and other constitutional officers in different states to thwart the initiative process."

The fact that it was Kennedy rising to defend the initiative process was particularly noteworthy, given the Sacramento native was a practicing California attorney for many years who helped Gov. Ronald Reagan draft a tax ballot measure, a defeated 973 special election measure known as Proposition 1.

Other justices agreed.

"In a State that has the initiative," said Justice Samuel Alito, "the whole process would be defeated if the only people who could defend the statute are the elected public officials."

"The whole point of the initiative process," he told Theodore Olson, attorney for the gay couples that challenged Prop 8, "was to allow the people to circumvent public officials about whom they were suspicious.

The decision by two attorneys general to not defend Proposition 8 also raises the question of whether the state's top attorney should have the power to pick and choose which laws he or she agrees with.

Harris strongly defends her decision to step aside.

"It is not rare for attorneys general, in whatever state, to make decisions and exercise their discretion about which cases we will defend and those that we won't," she said.

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