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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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)
  1. JiminNM

    Another nail in America's coffin.

    February 7, 2012 at 3:52 pm | Report abuse |
    • mkeat

      now if only people like YOU were IN the coffin...

      February 7, 2012 at 4:01 pm | Report abuse |
    • doc

      Actually, the nails are beginning to pop off..... as the lid to true marriage freedom in America is being pried off of the coffin we have been in for our entire lives.

      February 7, 2012 at 4:10 pm | Report abuse |
    • xab

      By all means, leave. Take other neocons and bigots with you. I'd even buy your one way ticket.

      February 7, 2012 at 4:24 pm | Report abuse |
    • Rob

      Why does anyone care what other people do? Is this going to cause you harm? Are your rights going to be taken away from you? Mind your own business and let everyone do as they please as long as they are not harming anyone. My father used to tell me to worry about myself and quit worrying what other people are doing.

      February 7, 2012 at 4:30 pm | Report abuse |
    • R Low

      Really, a nail in America's coffin? Allowing two adults to love and be a family and marry, just like other Americans can – that's a nail in the coffin? Respecting people's life choices that only involve two consenting adults – that's a nail in the coffin? Affirming love rather than prejudice, hate, intolerance – that's a nail in the coffin? Why should your narrow minded beliefs interfere with the rights of millions of Americans? Hopefully it doesn't and never will.

      February 7, 2012 at 4:33 pm | Report abuse |
    • scott

      Your response was probably heard in the south a million times when they integrated the schoold. Dinosaur!

      February 7, 2012 at 4:35 pm | Report abuse |
    • Rosie

      Xab...could i have a one way ticket to Nassau in the Bahamas please? Where do I send the travel bill?

      February 7, 2012 at 4:54 pm | Report abuse |
    • jdj


      You are right. We have lost our minds when we put the governmental stamp of approval on these relationships. I can only hope this decision is overturned by the Supreme Court.

      February 7, 2012 at 4:55 pm | Report abuse |
    • Nas

      I would love to know a full count of nails in America's Coffin.

      February 7, 2012 at 5:04 pm | Report abuse |
    • Erik

      Yeah other countries like Canada have just fallen apart. Get real.

      February 7, 2012 at 5:35 pm | Report abuse |
    • DonKnott

      Two healthy people in a gay "marriage" can copulate but not procreate. The guy has a point.

      February 8, 2012 at 1:42 pm | Report abuse |
    • logan5

      LOL...what more can be said about this pathetic and laughable statement that has not already been said. Although, I would like to ask you for a favor Jimin: Please don't pollute my specie's gene pool by reproducing.
      Thanks much!

      February 8, 2012 at 1:46 pm | Report abuse |
    • Doug

      jdj: Government allowing marriages is not putting "he governmental stamp of approval on these relationships," it is just the government recognizing a contract of commitment between two people. There are many hetero marriages that the government might not approve of, such as when a 20 year old decides to marry a 90 year old (and incidentally, these two couldn't procreate either) or when someone marries for money instead of love.

      When the state grants a marriage, they are not saying that they approve of the choice of partner; they are just acknowledging that the two parties have met the legal grounds for a binding commitment (for example, that both parties are old enough to consent).

      February 8, 2012 at 2:38 pm | Report abuse |
  2. Jake

    A great day for California!

    February 7, 2012 at 4:07 pm | Report abuse |
    • Caroline

      This is good news for all Californians and a blow to the religious right, Jake. I just hope the ruling sticks.

      February 7, 2012 at 4:40 pm | Report abuse |
    • Rosie

      Doesn't it bother you that your side lost in an election? That dispite the FACT that your state is flat broke, you consider this issue important? This is why only illegals move to Calif....the rest of us run away.

      February 7, 2012 at 4:49 pm | Report abuse |
    • Floyd MacGillicutty

      Rosie, what are you talking about? Do you live here? No, you don't. The Mormon church specifically worded Prop 8 to be as confusing as possible, to make voters think a "yes" vote was a vote allowing gay marriage. Polls since then have consistently shown wide support for gay marriage up and down the state.

      As to your other stupid comment, CA has the 8th-largest economy in the world. It is not "flat broke", and I challenge you to find evidence stating that it is. CA residents are in a heck of a lot better shape than residents of states like Indiana, whose state economies may be doing well, but who also rank in the top 5 nationally in personal bankruptcies, foreclosures and income. What good is if the state has a balanced budget, but the state's residents are in horrible shape?

      Don't throw stones from glass houses. And mind your own business while you're at it. Please, run your ig-no-rant, big-o-ted self as far away from here as possible.

      February 7, 2012 at 5:25 pm | Report abuse |
    • Floyd MacGillicutty

      Correction, meant to say "rank in the top 5 nationally in personal bankruptcies and foreclosures, and near the bottom in personal income."

      February 7, 2012 at 5:27 pm | Report abuse |
    • logan5

      Poor poor Rosie. You clearly have never heard of the logical fallacy known as "Argumentum Ad Populum" AKA the band wagon fallacy. Simply because the majority believes something to be true does not mean that it is. Had you known this than perhaps you would not have posted such an intellectually bankrupt statement.

      February 8, 2012 at 1:41 pm | Report abuse |
  3. Rich

    Ew, gross.

    February 7, 2012 at 4:11 pm | Report abuse |
    • doc

      Then don't marry your boyfriend.

      February 7, 2012 at 4:14 pm | Report abuse |
    • Rich

      I already married your mom, and polygamy is still illegal. Maybe we can crack that one next!

      February 7, 2012 at 4:18 pm | Report abuse |
    • Bhoss

      would it be so bad to allow polygamy? what happens in another man's or women's family is their own business, as long as they are all consenting adults.

      February 7, 2012 at 4:36 pm | Report abuse |
    • logan5

      Ew, gross??
      what are you, 10 yrs old?

      February 8, 2012 at 1:48 pm | Report abuse |
  4. ivan

    Lock up your children, we're coming for them (oh and the sky is falling)!

    February 7, 2012 at 4:12 pm | Report abuse |
  5. doc

    Too bad 90 day marriages like Kim Kardashian's and 1 week marriages consumated in a drunken stupor like Brittney Spears aren't illegal in this country! Now these are marriages worth building a country on!!! Yeee HAW!

    February 7, 2012 at 4:12 pm | Report abuse |
  6. Kevin

    Wonderful ruling! Equality and fairness are what this country is founded on.

    February 7, 2012 at 4:13 pm | Report abuse |
  7. Truthhurts

    Liberals's children don't have the civil right to life let alone their biological parents. Awesome.

    February 7, 2012 at 4:20 pm | Report abuse |
    • Steve

      That is wierd. I am a Liberal and proud of it. My kids have civil rights. I have civil rights and guess what? Gays and Lesbians have civil rights too. That is the truth and it does hurt doesn't it?

      February 7, 2012 at 5:55 pm | Report abuse |
    • Flappy

      Liberal's children's biological parents don't have the right to life? Is that a veiled threat of some type?

      February 7, 2012 at 7:15 pm | Report abuse |

    A Victory For Civil Rights! No one has the right to impose their religious values on you!

    February 7, 2012 at 4:23 pm | Report abuse |
    • steelerguin

      What gives you the right to impose your views on me?

      February 7, 2012 at 4:28 pm | Report abuse |
    • jorgath

      The difference is, no one's making you get gay-married, perform a gay marriage, go to a gay wedding, or even admit that they're married (unless you work for the government of California, in which case you'd be required to do the admitting part). Therefore, they aren't imposing their values on you, unless you feel like the idea that no one should impose values on anyone is being imposed on you.

      For bias-reveal, I'm a straight liberal from Maryland.

      February 7, 2012 at 4:58 pm | Report abuse |
    • KevinB

      If you don't like gay marriage, then don't get gay married! No one is forcing you.

      February 7, 2012 at 5:02 pm | Report abuse |
    • Floyd MacGillicutty

      steeler, you really are dense aren't you? Who is making YOU do, or keeping YOU from doing anything?

      Why are you right-wing j3rks so fascinated by what goes on in other people's bedrooms?

      February 7, 2012 at 5:37 pm | Report abuse |
    • logan5

      Exactly what are these views you feel are being IMPOSED on you??

      February 8, 2012 at 2:29 pm | Report abuse |
  9. Dave in Portland

    Divorce lawyers in Cali are drooling. This will open up a whole new customer base.

    February 7, 2012 at 4:24 pm | Report abuse |
    • Truth

      Actually you might wanna check the facts on that one.. 98% of all divorces (legal) are between a woman and a man. Take in the fact the census of children whom are successful in school with gay parents vs straight; 100% and 96% of those go onto college.

      Seems the issue isnt with gays, but straight bigots. Im married to a wonderful woman and Im a man, but who in the heck am I to say who can love another. No one. None of my business and more power to my fellow man and woman for their own personal choices.

      February 7, 2012 at 4:38 pm | Report abuse |
    • logan5

      You clearly missed Dave's point! He simply suggested that there will be more business for divorce lawyers, period. After all, gay couples will still be susceptible to divorce. Your use of stats and figures was unnecessary waste of characters.

      February 8, 2012 at 2:21 pm | Report abuse |
  10. Truthhurts

    Liberals abort, sodomize and euthanize their own. Good start, but more has to be done.

    February 7, 2012 at 4:27 pm | Report abuse |
    • Steve

      The devil is in your heart.

      February 7, 2012 at 5:57 pm | Report abuse |
    • Flappy

      It's not too late to repent.

      February 7, 2012 at 7:17 pm | Report abuse |
  11. steelerguin

    Glad I don't live in California. They don't call it the "left" coast for no reason.

    February 7, 2012 at 4:27 pm | Report abuse |
    • Rob

      We're glad you don't live here too!

      February 7, 2012 at 4:34 pm | Report abuse |
    • Floyd MacGillicutty

      Please, stay as far away from here as possible.

      February 7, 2012 at 5:29 pm | Report abuse |
    • Flappy

      Amen to that.

      February 7, 2012 at 7:18 pm | Report abuse |
    • logan5

      As a California resident let me say that I too am very happy you do not reside in my state.

      February 8, 2012 at 2:24 pm | Report abuse |

    equal rights; freedom to marry – these seem very natural yet, the country is built on church infiltrating the state and equality being defined by absent-minded people. good victory for civil rights and for CA.

    February 7, 2012 at 4:30 pm | Report abuse |
  13. MCruz

    SO many ignorant idiots on this blog!, most likely your kids will be gay and then you will be sad you did not support them. Jerks!

    February 7, 2012 at 4:31 pm | Report abuse |
  14. CathyinK

    Truthhurts and steelrguin, 70% of people under the age of 30 support marriage equality. Either SCOTUS is going to make it legal nationwide or, further down the road, the electorate will but gay marriage is going to be a fact in this country. Do try to come to grips with it now.

    February 7, 2012 at 4:34 pm | Report abuse |
  15. Truthhurts

    They steal the civil rights of children and Celebrate. Like taking candy from a baby, To bad children can't afford good lawyers.

    February 7, 2012 at 4:36 pm | Report abuse |
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