Prop. 8 Co-Author: Striking Down Prop. 8 Would Be Judicial Activism

Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.

Pugno discussed with KQED's Scott Shafer the major themes of the team's legal argument, as well as what changing public opinion means for the case.

Even though prominent Republicans, Fortune 500 companies and the public are becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.

"I think the justices are accustomed to avoiding being sucked into a political debate," Pugno said. "I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law."

Indeed, it appears that one of the pro-Prop. 8 team's core arguments is that the proposition passed into law through a valid democratic process and that any judge's attempt to invalidate it would be akin to judicial activism, Pugno said.

There is also the issue of states' rights:

"It really would be unfortunate to have same-sex marriage imposed -- marriage redefined -- for all 50 states by the intervention of the federal courts," Pugno said.

"If the Supreme Court decides there is a hidden, invisible right to same-sex marriage in the Constitution, that would spell the end for Proposition 8 in California."

This interview and more coverage aired on KQED's "This Week in Northern California" Friday, March 22, at 7:30 p.m.

Watch an interview here with California Lt. Gov. Gavin Newsom who, for one month, oversaw the issuing of marriage licenses to same-sex couples in San Francisco in 2004.