San Francisco's District Attorney, soon to be California's Attorney General, made her position clear this week: when Prop 8 comes to the 9th Circuit court of appeals, her office will not defend the marriage ban.
Harris has stated that she believes the law is unconstitutional because it violates the equal-protection clause in the 14th Amendment of the US Constitution.
That interpretation echos her predecessor, Governor-Elect Jerry Brown. As Attorney General, he refused to defend Prop 8 before a district court. Brown's interpretation was considered somewhat novel at first. In 2009, the main challenge to Prop 8 hinged on the way that it was passed: as an amendment, which requires voter approval, rather than as a revision, which requires legislative approval.
Eventually, that argument was rejected by the California Supreme Court.
Now, the challenge to Prop 8 is going up against the 9th Circuit Court of Appeals. Ordinarily, the state of California would defend the law. But with both the Governor and Attorney General rejecting it on constitutional grounds, the defense falls to Prop 8's proponents.
Those proponents have been struggling to stack the deck in their favor. This week, they asked one of the judges in the case to recuse himself because his wife is a member of the ACLU of Southern California. Even though that organization isn't a party in the case, it's connected via briefs filed by the national organization.
It's unclear whether that judge will step down.