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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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. Do some research, man

    California is not the biggest state. It ranks 3rd, behind Alaska and Texas. It does however have the most people.

    February 7, 2012 at 11:51 pm | Report abuse |
    • Luigi

      Learn about context, man.

      February 7, 2012 at 11:56 pm | Report abuse |
  2. Steve


    As a Mormon, I witnessed what went on within the "Mormon Church" and its dealings with Prop. 8. The church was extremely careful not to donate a penny to the cause (because so doing would cause legal tax obligations for the not-for-profit organization as you mentioned); however, the church did support Prop 8 and encouraged its members to stand up for what we believe.

    On another note, the Catholic church was just as big of a part, if not bigger in the passing of Prop 8 – let's not single out just one group of people.

    February 8, 2012 at 12:11 am | Report abuse |
  3. Sally

    This is a victory for polygamy too – Our argument is no different than those for same sex marriage. If same-sex marriage is legalized, polygamy will follow. Those that believe that this argument does not have a rational basis, and simply will push for a simpler solution to this problem by proposing a constitutional amendment banning polygamy–and they (same sex couples say it would be easy to ratify...rather than fooling around with an anti-gay constitutional amendment that only one-third of Americans support..I say to you, you don't believe all men are created equal. You want for yourselves to be treated equal, but there are limits to others being treated equal. ...Hymn, you say everyone deserves love...only if YOU get to define what that is...you same sex marriage proponents are all hypocrites.

    February 8, 2012 at 12:16 am | Report abuse |
  4. Jason Davis

    Tonight in CA millions of gay men are celebrating and snow-b@llin.

    February 8, 2012 at 12:18 am | Report abuse |
    • Butt Hurts

      Presumably that's why Santorum is winning tonight.

      February 8, 2012 at 12:37 am | Report abuse |
  5. Hutterite

    It means the mormon church burned a pantload of tithing dollars to end up in a draw. Unfortunately, it doesn't mean that they've learned that doing what you think is correct gets to include making everyone else do it, too.

    February 8, 2012 at 12:27 am | Report abuse |
  6. RAMBLE3144

    Every opinion column is by a liberal shill. Pathetic.

    February 8, 2012 at 12:37 am | Report abuse |
    • Mark

      Yeah right, of course you conveniently leave out the likes of Frum or Bennett – and expose your own extremist views in the process. Toobin offered nothing more than a legal view of Prop 8 – and while he does seem to favor the overturning of the ban, it does not invalidate the argument that it is unlikely to reach to the Supreme Court.

      Stop using pathetic bumper sticker logic to solve problems

      February 8, 2012 at 1:14 am | Report abuse |
    • Tom Foolery

      And every half-brain retort to the opinion piece is by a rightwing nutjob.

      February 8, 2012 at 1:22 am | Report abuse |
    • CarolANN in S.B.

      Finally we will allow people in love to live together and really live out the American Dream Lets move on to really important concerns like re-building the economy, the infra-structure of of our cities, renewable energy! Stay out of people's bedrooms!

      February 8, 2012 at 1:40 am | Report abuse |
    • Occupy Wall Street 2016 for Senate!

      So, it's liberal to want human and civil rights for all?

      February 8, 2012 at 1:42 am | Report abuse |
    • manhandler

      Funny, I always considered marriage as more of a conservative thing.

      February 8, 2012 at 2:58 am | Report abuse |
    • Walt

      So next time the majority of the voters in the state want to change the constitution we should just ask these lame ass judges if it is OK and save a lot of time. They seem to be in charge of everything; everywhere these days.

      February 8, 2012 at 4:54 am | Report abuse |
  7. Anny Rabit

    'foul play because the first judge was gay?' That is RIDICULOUS.

    You only say it is foul play when the judge is something other than a straight white male. HE is considered 'universal' and 'objective' while supposedly, women, Black people, and gays are incapable of being impartial.

    That is just ignorant.

    February 8, 2012 at 12:45 am | Report abuse |
  8. svann

    I think Toobin is wrong about it not going to the USSC.

    February 8, 2012 at 12:52 am | Report abuse |
  9. v3rlon

    This is a thorny issue to me. If we leave out the subject matter or the law, the elected legislature said let's allow this. Then, the entire population of California voted and said "no, let's not allow it." Now some judges are telling people the popular vote doesn't matter? In a democracy, this should be the highest law of the land. Before anyone screams about civil rights, bear in mind that these 'rights' are something we manufactured as a society – the same society that voted against granting this specific right. The only case I could see for trumping that was if there were something higher than said society to answer to, and the people on that side of the fence are the ones voting no anyway. Whether it is right or wrong is, like whether it is legal or not, something we decide as a people (assuming we are the top of the food chain). Is it right to frisk 4 year olds at airports 'for the greater good?' Is it right to turn off the constitution and have 'no refusal weekends' whenever the top cop decides the highest law of the land is too inconvenient for his plans to raise city revenue? I just have a hard time accepting that a handful of judges can rule over the will of the majority of the population, no matter how I feel about the decision they are ruling on.

    February 8, 2012 at 12:59 am | Report abuse |
    • Foghorn Leghorn

      the entire population of California voted and said "no, let's not allow it."

      52% to 48% is not the entire population of California.
      It should never been put up for vote because it is
      You cannot vote on civil rights, what part of this you dont get ?

      February 8, 2012 at 10:32 am | Report abuse |
  10. LegalCat

    This is wrong: it doesn't just affect California. It affects all states in the Ninth Circuit, which includes Washington, and that's highly relevant because Washington is just about to pass legislation authorizing same-sex marriage. This ruling significantly decreases the likelihood that the LDS - sorry, I mean "the anti-same-sex-marriage forces" - will mount a campaign in Washington to undo that by changing the state constitution, because the Ninth Circuit would slap that down too.

    As to the ludicrous argument about Judge Walker, hey, I thought the Prop 8 proponents' story is that same-sex marriage degrades and degenerates and generally despoils everybody's marriage, in some unspecified way. If you're an opposite-sex couple that's "married," somehow you're less "married" if a same-sex couple can also be "married." If that's true - and they certainly say it often enough - then how can any judge rule on the issue? A straight married male would be prejudiced too, because he'd want to rule against same-sex marriage so his own marriage wouldn't be turned all icky by the fact that guys do it too.

    February 8, 2012 at 1:08 am | Report abuse |
  11. scorpioman

    A. Decision by stone liberal clowns of the 9th District Ct. This court has been overturned lots of times.

    B. What can you expect. This liberal court is located in the Sodom & Gomorrah of the West coast.

    Enuff said. : )

    February 8, 2012 at 1:18 am | Report abuse |
    • Ian

      At least we know how ignorant you are by your spelling. Good job "Blue Collar Comedy Tour" follower...

      February 8, 2012 at 1:22 am | Report abuse |
    • manhandler

      I've lived in California all my life and I kow exactly what you're talking about . I never ever look back behind me for fear of being turned nto a pillar of salt.

      February 8, 2012 at 3:02 am | Report abuse |
    • GianCarlo

      Oh, please show me where the Holy Land is? Is it where newt G. Lives.......Hypocrites that is what you all are a bunch of Jesus Christ hypocrites...............

      February 8, 2012 at 3:28 am | Report abuse |
  12. Jim

    Of course it will be upheld by the 9th Circuit - they're the biggest bunch of liberal wackos outside of Berkely

    February 8, 2012 at 1:19 am | Report abuse |
  13. mammoth

    Can you imagine just how angry the Mormon Church leaders are? Or even worse off are all the Mormons members they stole from to push Prop 8 through. All their hateful time and efforts wasted....happy times.

    February 8, 2012 at 1:31 am | Report abuse |
    • Pk

      Mormons weren't the only group supporting prop 8. Hate had nothing to do with their decision but does have a lot to do with your comments. LDS church leaders are likely disappointed by this ruling, not angry. You know so little but judge so much.

      February 8, 2012 at 3:02 am | Report abuse |
    • manhandler

      Mitt Romneys magic underpants are gonna be in an uproar.

      February 8, 2012 at 3:04 am | Report abuse |
  14. Josie

    I so hope this does go through, honostly I have family and close friends that are not straight, have been with the same person longer then most straight people have and the only thing stopping them from getting married....it's not allowed or acknowledge...really?? We have teenagers getting married and divorcing, celeberties....the same thing, and people are saying gays and liesbians marrying will ruin marriages...us straight people seem to be doing that without their help. Let them get married, let them experience both the good and bad like the rest of us do. Now does this mean I believe that churches will be required if they don't want to...no, we still have seperation of church and state. But if a church or a recognized religion has no problem with this, then go for it...if not, then the couples can still go to the court house....just like many others.

    February 8, 2012 at 1:37 am | Report abuse |
  15. James

    I am from Utah (Orem, Utah County), and THIS IS AWESOME! HAHAHAHA! I bet my mormon neighbors will be PISSED!

    Great stuff. Im going to pull out my old "No on H8" shirt, and wear it around campus all day.

    February 8, 2012 at 1:39 am | Report abuse |
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