February 7th, 2012
03:32 PM ET

Toobin: What Proposition 8 ruling means for California, other states

Editor's note: Shortly after a federal appeals court ruled against California’s voter-approved ban on same-sex marriage Tuesday, CNN senior legal analyst Jeffrey Toobin answered questions about the implications of ruling and his reaction to it.


Proposition 8, the initiative passed by voters in 2008, is unconstitutional, a violation of the rights of gay and lesbian people who want to get married.


No - not yet. The 9th Circuit panel left a stay in place that will continue as long as the defendants in the case continue their appeal. Since the defendants have indicated they will continue their appeals, it is likely to be months before same-sex marriages may resume.


Not really. The background of the two judges in the majority, and the questions they asked in oral argument, suggested they were leaning this way. The rationale is somewhat surprising. Instead of ruling that there is a constitutional right to same-sex marriage in all circumstances, the court issued a narrower ruling. The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.

Editor's note: California voters approved Proposition 8 in 2008, superseding a ruling by the California's Supreme Court, which had allowed same-sex marriages in California before that.


I think the narrow approach in today's decision makes the case less likely to be reviewed by the Supreme Court. The court applies general principles that apply across the United States. Because this case only deals with the unique circumstances in California, I think the Supreme Court is less likely to review it.

So the good news for same-sex marriage supporters is this decision may mean that a conservative Supreme Court will decide not to take the case.


Not directly, because it deals only with the unique circumstances of California. But if this decision stands, it will mean that approximately one-fifth of the population of the United States will soon live in states with same-sex marriage. That's an enormous change from zero states a decade ago. By the standards of civil rights battles, that's extremely fast change.


My best guess is that this decision will be the last word, though we will not know for sure for several months. I think it will be upheld in the 9th Circuit, but it will not go to the Supreme Court. It will not create a national precedent. But there are 39 million people in California - that’s a lot of people to have same-sex marriage. Technically, the decision applies only to California, but a victory in the nation's biggest state can create its own momentum.

soundoff (885 Responses)

    AIDS is going to kill all of the conservatives that are destroying the country??

    February 8, 2012 at 3:12 pm | Report abuse |
  2. steve

    This is not about if i am against or for gay marriage. Every time I vote in california the courts overturn the majority. I can care less about your liberal civics class. I will no longer vote. If civics Teachers and poloticians had common sense they would take the propositions to court and settle prior to voting. ugly sick athiest cnn lovers.

    February 8, 2012 at 3:19 pm | Report abuse |
    • yeahalright

      So you could care less about the constltution then? Traitor. "liberal civics class." You haven't the first clue.

      P.S. – are spelling classes too liberal for you too?

      February 8, 2012 at 3:24 pm | Report abuse |
    • fortyfive

      Yeahalright- where in the constltution does it address marital relations? It declares individual rights of citizens, and form of government, without mentioning family structure. I don't think our founding fathers imagined that someday people would be using the law to overturn and redefine marriage. If you want to argue whether it is constltutional to have gay marriage, you would have to have an amendment added to it to make it so.

      February 8, 2012 at 4:49 pm | Report abuse |
    • saopaco

      I agree with fortyfive. Try to get your hate passed as a US consti.tutional amendment. I will wait.

      February 8, 2012 at 5:46 pm | Report abuse |
    • yeahalright

      Sao – through what contortions and twists of logic do you have to go through to consider butting the heck out of a private decision between two people that affects you in no way whatsoever to be "hate?

      Forty – it doesn't need to be specifically enumerated. And the const.tution recognizes pre-existing rights. It does not declare the ones listed to be the only ones there are. The amendment specifically mentions rights not enumerated belong to the states & people. The founding fathers couldn't have imagined the internet (free speech issues), or cars (searches & seizure issues) or machine guns (right to bear arms issues) either. It's a framework. Marriage is part of the pursuit of happiness. As such, it is a right. As such, the government needs at least a valid reason to deny it to someone. There is no rational reason to do so. Churches don't have to marry anyone. I don't care at all what churches do or who they hate. I do care that the government recognize my right to the pursuit of happiness, where I am affecting no one else.

      I get it, you think it's gross. Got anything else? That's not a valid reason to deny someone the pursuit of happiness. I'm a guy and I'm not attracted to other guys. So you know what...I don't f'n marry one. Why is that not good enough for you?

      February 8, 2012 at 6:46 pm | Report abuse |
  3. maff

    As defined, marriage is between a man and woman, and has been so through out history.
    Christians believe it to be ordained by God. And God already spoke on that subject, along with all other sin.
    So try to understand why Christians are tender about it.
    I as a christian personally dont agree with it, but i wont be picking up any picket signs to stop you either.
    What you do is your choice. How this has become a political matter is beyond me. Some call it human rights, and civil right....? ummm no. Gay is not a race or a gender.
    And once and for all to clear the confusion. Real Christians dont hate gay people! Christians should hate sin, not the sinner. But we as christians sin too. So to hate your sin more than my sin would be even more sin.

    February 8, 2012 at 3:52 pm | Report abuse |
    • What?

      Actually...marriage has been defined as ownership of woman, or women by men; it has been defined as union between family members, very often cousins, aunts to nephews, uncles to nieces, etc. or even as a reward or payment for soldiers in foreign lands. But that is just the biblical take. I for one would opt not to go back to traditional biblical marriage.

      February 8, 2012 at 4:39 pm | Report abuse |
    • Corey

      Problem is: That's not actually true.

      The claim that marriage has "always been one man, one woman", or that the definition of a legitimate marriage has never changed is just people fooling themselves.

      Men having multiple wives used to be considered a valid marriage. One man, many women.

      At times it was only valid if your parents agreed to it. Or if your ruler appoved, or if it was conducted by a priest.

      Or you couldn't remarry unless your previous spouse was dead (because there was no divorce allowed).

      What makes a valid marriage has changed so many times in history it's staggering. And civilization never collapsed, and families continued regardless.

      February 8, 2012 at 4:53 pm | Report abuse |
  4. fortyfive

    The cnn censors are working hard today, keep up the good work protecting politically correct propaganda

    February 8, 2012 at 4:29 pm | Report abuse |
    • yeahalright

      Nobody's censoring you. Your blather isn't that important so get over yourself. You probably got caught by the profanity censor when you wrote const-tution because there's a bad word in the middle of it. You don't matter. No one is censoring you. Getting through your tinfoil hat?

      February 8, 2012 at 4:31 pm | Report abuse |
  5. ewww

    gay marriage is disgusting. always has been always will be.

    February 8, 2012 at 5:19 pm | Report abuse |
    • banasy ©

      Then don't marry a gay person.

      February 8, 2012 at 5:48 pm | Report abuse |
    • yeahalright

      I 2nd that. Then don't marry someone of your gender. Easy peasy.

      I think ignorant hateful bigots like you are gross. So I don't marry one. Easy peasy.

      February 8, 2012 at 7:02 pm | Report abuse |
  6. bmull

    So one day later, Toobin has already been proven wrong. That's an "expert analyst" for you.

    February 8, 2012 at 5:28 pm | Report abuse |
  7. james

    There are many religions in this country and people are free to chose to live their lives as they feel is best for their own exisitance. But no one group of people have a right to restrict the freedoms of others to advance their own private agenda. It realy is not anyone`s business if to people want to marry regardless of genders.

    February 8, 2012 at 6:15 pm | Report abuse |
  8. yeahalright

    I'm a guy. I'm not attracted to other guys. So I don't f'n marry one! And I get on with my own life. I don't have the time to give a rat's behind what two other people are doing.

    Why is having that choice, and others making that choice so scary and threatening to you people. Nobody's marching Adam and Steve to your church altar and forcing your pastor to marry them. Your isolated little bubble is still intact.

    To paraphrase Daniel Tosh: Aren't they going to be burning in hell for eternity anyway? You think that'd be good enough for you people.

    February 8, 2012 at 6:53 pm | Report abuse |
  9. meanlybean

    the government should not be involved in the personal choices that cause no harm to other people.

    February 9, 2012 at 2:54 am | Report abuse |
  10. Teh Bobb

    What does it mean? It means that the courts have the right to shoot down legislation that was passed and then approved by the people. Ridiculous, absolutely ridiculous.

    February 9, 2012 at 5:38 pm | Report abuse |
    • Ignorance Is Stupidity

      So you think that the majority should have the right to take liberty away from the minority, simply because the majority said so? Argumentum ad populum? Try looking up "Tyranny of the Majority".

      February 9, 2012 at 8:06 pm | Report abuse |
  11. Bob

    Civil rights should never be left up to the people to vote on.

    What if the majority decides to vote that any religion but Christianity is illegal and that anyone who follows any other religion is to be shot dead in the street?

    What if the majority decides that women no longer need to vote?

    What if the majority decides that anyone who isn't white should be put to work in the fields as slaves?

    See my point?

    February 9, 2012 at 5:40 pm | Report abuse |
    • Alex

      How is marriage supposed to be a civil right? Are they being segregated from strait people in public facilities? Are gay students being forced to attend separate schools from strait students? Are gay passengers being made to ride in the back of the bus and yield their seat to strait passengers? Are they being denied jobs and housing? Get real folks. It's not like they're being left lying all over the streets because of the system in place.

      February 10, 2012 at 1:15 pm | Report abuse |
  12. nonyabusiness

    im wondering why should straight people have a say in gay marriage... its not like the gays are going to marry them!

    February 9, 2012 at 9:56 pm | Report abuse |
  13. Krog

    After reading through all these posts (and making a few posts myself) I have the following observations:
    1. Religion has no place in this argument.
    2. Marriage is not a basic human right for anyone.
    3. This issue has nothing to do with slavery nor is it comparable.
    4. Gays have the same marriage rights as straights and always have. A gay man may marry any women he chooses.
    5. Supporting gay rights does not make you any more intelligent or enlightened than anyone else.
    6. Majority rule is democracy, not 'mob rule'.
    7. The people have a right to vote and have a right for their vote to be heard. Anything else is authoritarian.
    8. Gays are not sick, twisted, perverted, or anything of the like.
    9. Changing the definition of marriage does affect society as a whole and does impact individuals' lives.

    February 10, 2012 at 3:44 pm | Report abuse |
    • bjc412

      Nice set of baseless facts. At least they are numbered?

      February 13, 2012 at 11:23 am | Report abuse |
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    July 11, 2012 at 2:57 am | Report abuse |
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    August 11, 2012 at 10:55 am | Report abuse |
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