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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    I don't have anything against any one that's gay, but I strongly believe in the unity of a man and woman. If we are going to respect the constitution of the united states which was written by man we should also respect the Bible. In my eyes the unity of a man and a woman will always and for ever stand even when the human race disregards it .

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

      Rene – no one is disregarding the unity of a man and a woman. The decision only means that constitutionally the unity of a gay couple cannot be disregarded by a majority vote...

      February 8, 2012 at 7:05 am | Report abuse |
  2. Tom

    Don't homosexuals and the America-hating, Constitution-hating, leftist, extremist fringe know that homosexuals have the same right as heterosexuals to marry one (unmarried) person of the opposite sex? That is what marriage is, to wit: the union of one male and one female.

    February 8, 2012 at 2:03 am | Report abuse |
  3. Greek American

    I like how all the teabagger, conservative, far-right nuts on here can get so angry about this issue. They complain yet have no solutions to anything. So what do you teabaggers propose we do with the gays? Put them in another Gitmo? Nice conservative values. What a joke!

    February 8, 2012 at 2:03 am | Report abuse |
    • Watcher

      Who says we have to "do" anything?

      February 8, 2012 at 2:36 am | Report abuse |
  4. bmull

    I disagree with Toobin. The pro-8 people are not going to just give up. Kennedy will be the determinant of whether the Supreme Court takes the case and what the verdict will be.

    February 8, 2012 at 2:12 am | Report abuse |
  5. superpaul3000

    Liberty first, democracy second...

    February 8, 2012 at 2:43 am | Report abuse |
  6. Greek American

    Or is it OK "conservatively" to just sit in church and listen to a gay priest talk about how you should run your straight family life? As long as the priest can't get married then I'm sure you're fine with it. Typical conservative thought process.

    February 8, 2012 at 3:16 am | Report abuse |
  7. GianCarlo

    It amazes me how stupid conservative people are. They are apposed to gay rights. Well if you straights keep having sex and creating Gays, how do you expect to abolish the gay population. Hello gays come from straight peopel. I mean even ultra conservative Dick Cheny has a Gay daughter. Do you think he is going to hate her and oppose her rights? Wake up!

    February 8, 2012 at 3:33 am | Report abuse |
    • Mr. Bill

      If you are going to call someone stupid you should at least make sure you know the meanings of the words you use. Apposed means two things were placed side by side, I'm guessing the word you're looking for is opposed, meaning to act against.

      February 8, 2012 at 7:08 am | Report abuse |
    • MikeM

      Well. I must be "stupid". Unlike Cheney who supports his daughter's lifestyle, I would not support such behavior from my children. My nephew is no longer welcome in our home. The more this nation condones immoral behavior, the more we will sink into mud. BTW I am not religious.

      February 8, 2012 at 7:25 am | Report abuse |
    • Brian


      I hope you can find it in your heart to reconcile with your nephew someday. You may not agree with the way he lives his life, but love should be unconditional.

      February 8, 2012 at 7:34 am | Report abuse |
    • Rodney in Dallas

      Well Mike.....sounds like your nephew is better off without you anyway. I guess you religious beliefs allow you to just throw your children aside. Where exactly is that in the bible?

      February 8, 2012 at 7:44 am | Report abuse |
    • chenz66

      At one time I was opposed to gay marriage basically because I did not want to be lumped into the group with gays and lesbians. If I say I am married, it is understood that I am married to a women. I was in favor of civil unions and to provide all the same rights as someone that is married. Maybe it is a tradition thing but I see it as a slow erosion of the USA that I grew up with. However, after seeing all the narrow minded comments that people post on this issue I am now leaning the other way. Gays and lesbians getting married do absolutely nothing to my life so why should I care. I can't believe that people would say that their son or daughter is not welcome in their house because of this. I have two sons and although it would break my heart and I would be disgusted by their life style choice they are still blood and I would love them regardless and support them anyway possible.

      February 8, 2012 at 7:58 am | Report abuse |
    • Foghorn Leghorn

      Your nephew is better off without you.
      You are a very sad, small man.


      Well. I must be "stupid". Unlike Cheney who supports his daughter's lifestyle, I would not support such behavior from my children. My nephew is no longer welcome in our home. The more this nation condones immoral behavior, the more we will sink into mud. BTW I am not religious.

      February 8, 2012 at 10:42 am | Report abuse |
    • Gumbo Jim

      Mike is a toad with small hands. End of discussion.

      February 8, 2012 at 11:42 am | Report abuse |
  8. Constitutionalist

    The fact is, whether you support gay marriage or not, it is unconstitutional to not allow it under the Equal Protection Clause of the 14th amendment. The Supreme Court has an established list of Suspect Classifications to determine if a law is discriminatory:

    The group has been historically discriminated against – No one can legitimately say that Gays haven't been discriminated against historically.

    They possess an immutable and/or highly visible trait – Being homosexual is an immutable trait. Science has vouched for this hundreds of times; no one would choose to be gay.

    They are a minority – Homosexuals are undoubtedly a minority, and therefore have little political influence from within themselves.

    Their distinguishing characteristic doesn't inhibit their functioning in society – Anyone who would argue that gay people can't hold a meaning in society is obviously ignorant, as gays are just as successful in the world as anyone else.

    Based on the list above, it is easy to see that discrimination against homosexuals is a Suspect Classification, and therefore any law that discriminates against them is violating the Equal Protection Clause.

    Remember folks, at one time a majority of people thought that slavery was perfectly okay. This is simply another example of tyranny of the majority, and one day we will look back and laugh at the fact that gay marriage was actually once illegal.

    February 8, 2012 at 4:03 am | Report abuse |
    • Kenoscope

      I well remember when inter-racial marriage, defined as white/black, was illegal in the South while any other 'interracial' marriage was quite fine. Say White-Chinese or Black-Chinese. The United States Military could not post interracial (white/Black) couple in Southern States, even on unaccompanied tours.

      February 8, 2012 at 6:41 am | Report abuse |
    • kjfuller7

      FINALLY... some intelligence. Thank you! K!

      February 8, 2012 at 7:02 am | Report abuse |
    • MikeM

      So thieves and other people that do immoral things should not be discriminated against? Well. You're right, we no longer discriminate. We elected Clinton knowing full well he's a sleaze. And many "religious" conservatives support Gingrich.

      February 8, 2012 at 7:28 am | Report abuse |
    • Primewonk

      MikeM, please reread this section, " Their distinguishing characteristic doesn't inhibit their functioning in society"

      Now, rethink your post.

      February 8, 2012 at 8:45 am | Report abuse |
  9. Carl

    What it means, plain and simple, is that the American vote doesn't mean a thing. People voted on it but the courts overturned what the people voted. Where will it go from here? If judges start overturning the will of American people, they might as well tell us how things will be and forget about our vote because it doesn't matter anyway. Boy, talk about taking away the Constitution of the United States.

    February 8, 2012 at 4:36 am | Report abuse |
    • Deb

      Carl- go back and study civics again. Democracy does not equal a vote on every issue. Some rights, namely human and civil rights, are not to be voted upon. We don't ask people to vote on whether other minority groups can marry, or can procreate, or whether they must attend certain schools or become members of a certain religion. The courts are meant to interpret our constitutions (state and U.S.) and provide guidance to ensure that the will of the majority does not trample the human and civil rights of the minorities....

      February 8, 2012 at 6:58 am | Report abuse |
    • MikeM

      Equating gays with racial minorities is one of the greatest distortions of morality.

      February 8, 2012 at 7:30 am | Report abuse |
    • Rodney in Dallas

      Really? Are your feelings hurt because you can't vote on the rights of someone else? If this vote was a right to marry for the entire state then you would have a point but it wasn't for the entire state, it was only for a minority group of people. That ,my friend, you don't get to decide.

      February 8, 2012 at 7:50 am | Report abuse |
    • dj

      So, Carl, you and MikeM make a nice couple. He would apparently disown any of his children that happen to be gay and you would allow a state to randomly discriminate against members of its own population. Nice. I guess in your "philosophy" Jim Crow laws were reasonable and just because they were voted for by a "majority" of the only people who were allowed to cast their ballots. Civil liberty and basic human rights may not be erased by a vote on some ill-conceived laws that is designed to discriminate.

      February 8, 2012 at 7:58 am | Report abuse |
    • Gumbo Jim

      I'm beginning to think MikeM is actually in the closet. It's OK, MikeM, come out of there. You will feel so much better when you unburden yourself.

      February 8, 2012 at 11:50 am | Report abuse |
  10. delphin

    i'm shocked and saddened....

    February 8, 2012 at 4:43 am | Report abuse |
    • jacksays

      .... that people are allowed to have rights already enjoyed by others. an abomination!

      While we're on the topic, what is UP with the negros and women being able to vote just like white men? I mean, really, c'mon Supreme Court!

      February 8, 2012 at 6:22 am | Report abuse |
    • jacksays

      ... that everyone in this country should have equal rights. Abomination!

      February 8, 2012 at 6:24 am | Report abuse |
    • kjfuller7

      How can you be shocked? Discrimination ALWAYS loses in the United States. The mormons that gave their children's college funds to support prop 8 should really be regretting that decision right now. The good thing is... the mormons have spent all their money... they can't afford big fights in other states. I'm "sorry" that justice didn't uphold your desire to be better than me, but you're not. K!

      February 8, 2012 at 6:41 am | Report abuse |
    • Greggy V.

      How exactly this affects your straight household? For real?

      February 8, 2012 at 6:48 am | Report abuse |
    • Gumbo Jim

      Shocked and saddened that your gay partner now wants to get married and your free-wheelin' lifestyle is about to enter the world of marriage. That's gonna put a major crimp on your bachelor(ette) ways, so, hence, you are shocked and saddened...

      February 8, 2012 at 11:53 am | Report abuse |
  11. Walt

    So next time the majority of Americans want to change something; we should just save time and asked the Federal Judges for their permission? They seem to be in charge these days.

    February 8, 2012 at 4:57 am | Report abuse |
    • jacksays

      If the majority of Americans want to legalize murder should the rest of us blindly let it happen?

      February 8, 2012 at 6:23 am | Report abuse |
    • kjfuller7

      A MAJORITY of citizens cannot vote away the basic rights of a smaller group of CITIZENS. YOU are not better than US. Marriage was defined as a basic RIGHT of all Americans in previous Supreme Court rulings. Any legislative or ballot initiative countermanding those FEDERAL precedents will be voided. The neocons are just wasting time and money. K!

      February 8, 2012 at 6:50 am | Report abuse |
    • Deb

      Walt- when it comes to basic human and civil rights – yes. Those are not to be the subject of majority rule. That's the meaning of the constitution. Basic civics.

      February 8, 2012 at 7:02 am | Report abuse |
    • Ghost

      Marriage was also declared to be between a man and woman by the Supreme Courts. I'm not saying that gay couples shouldn't have rights, but I don't agree with them being "married". Marriage was part of religious beliefs. To me this is the same as trying to force church-run organizations to support abortions or birth control if it goes against their belief system. The people spoke and the courts are only supposed to interpret the law, not change it.

      Why was it that a "civil union" wasn't good enough for gays? It provided the same freedoms that they claimed that they wanted (to be able to enter the hospital as family, raise children, etc). It seems to me that they only wanted to attack the religious beliefs of millions of Americans.

      February 8, 2012 at 7:31 am | Report abuse |
    • Linhster

      To Ghost – How about having Civil Union for everyone, gay or straight. They can take that certificate to any religious, non-religious organizations to valid their marriage. I am gay, but will go for that.

      February 8, 2012 at 8:03 am | Report abuse |
    • Primewonk

      If the majority vote for an unconsti.tutional measure, it must be struck down.

      I'm not sure why you guys can't or won't understand this.

      February 8, 2012 at 8:53 am | Report abuse |
    • Gumbo Jim

      Walt is just sour and rotted out because he hasn't changed his underwear since the Carter Administration. He's the guy that likes to yell at the kids from his porch to "Stay off my lawn!"

      February 8, 2012 at 11:59 am | Report abuse |
  12. mmi16

    You would think from all the hate being spewed – the haters were being FORCED INTO A SAME SEX MARRIAGE themselves. We all don't want to, and can't, marry the same person, male or female, so what is the big deal. I like brunette women should I get upset because someone wants to marry a blonde or a redhead?

    February 8, 2012 at 5:07 am | Report abuse |
  13. Dirk

    As for over-turning proposition 8, as far as the democratic process is concerned it is a another slap in the face of the American people and again proves that our brand of democracy may not be all that!

    How 3 people can nullify the votes of millions is crazy. Whether a man can marry another man is not the issue to me it is the fact that the will of the majority of Californians has simply been cast aside by 3 judges that consider their primary role to be activism.

    The will of the people is what should be the deciding factor, not the personal opinions of some judge.

    IThe fact is that if you do not consider the right for two men or two women to marry each other to be a civil rights issue then the point is moot.

    If folks are born gay then it is akin to having OCD or Tourettes and not the same as having blue or brown eyes or black skin because at the end of the day you still have to engage in certain acts to actually be homosexual. You can feel gay all day but it doesn't make you homosexual until you engage in defining acts. Engaging in these acts involves some degree of free will. Blue or brown eyes do not.

    Folks are quick to point out that homosexuality was removed from the DSM and as such is not an illness... however removing it from the DSM manual doesn't mean anything because it wasn't based on some startling medical revelation but instead motivated by political and social pressures.

    You may or may not be able to help yourself, but you still have free will and that enables you to act or not act on impulses.

    February 8, 2012 at 5:24 am | Report abuse |
    • kjfuller7

      WOW, just wow... please spend a few minutes reading how law & justice in the United States works. Maybe then you'll understand why it takes 2 years for justices to issue rulings. Even if the judges were conservatives and ruled based on their personal beliefs or emotions, they would know the final outcome by the review process. This happens frequently. As far as your "analysis" of homosexuality... I challenge you to NOT ACT on your heterosexual desires for 1 week, no flirting, no lusting, no sex, no visual stimulae, no fantasy... lemme know how that turns out. K!

      February 8, 2012 at 6:59 am | Report abuse |
    • Jon

      As recently as the 1950's the will of the people was segregation. It was the courts that changed that, not the will of the people. Was that a shame as well?

      February 8, 2012 at 7:06 am | Report abuse |
    • Physicsstudent

      I guess it's a good thing that the United States is a republic and not a democracy. That would be embarrassing...

      February 8, 2012 at 7:23 am | Report abuse |
    • Primewonk

      If the will of the ppeople is expressed in enacting an unconsti.tutional measure, then the measure is struck down. It would also be advised that the population take some remedial education in civics.

      Folks being born gay is not akin to being born with OCD. It is akin to folks being born straight. Both are natural variants of se.xual orientation.

      Being gay was removed from the DSM because the science did not support it being a disorder.

      February 8, 2012 at 9:10 am | Report abuse |
  14. batjac

    So....just to play devil's advocate... Can a brother and sister marry? Can a man marry a 10 year old? Polygamy-how can that be declared wrong? Remove Gay or same sex and isnert one of these into the arguement? Whats the difference? Now think about this–regardless of your beliefs or the absurdity or will of the people- all it takes is a panel of judges and BAM! It's legal. So explain how its different....

    February 8, 2012 at 6:04 am | Report abuse |
    • Deacon

      Can a brother and sister marry?

      * Sure. I'd avoid breeding though–not out of any social reason but because the offspring runs a high risk of genetic deformity.

      Can a man marry a 10 year old?

      * No. A 10 year-old cannot legally consent. A gay adult, however, can.

      Polygamy-how can that be declared wrong?

      * Is it wrong? Have you ever really asked yourself?

      February 8, 2012 at 7:32 am | Report abuse |
    • Brian

      You can't marry your sister. That's consanguinity, and it's illegal in every U.S. state, to the best of my knowledge. But it's illegal based on health reasons, not moral ones. If you marry your sister and breed, you end up with kids with 6 heads and 42 legs.

      You can't marry a 10 year old because you'd be violating age of consent laws. (The age of consent varies from state to state, but it's not as low as 10 anywhere I can think of.)

      Bigamy (let alone polygamy) is illegal mainly because of the legal problems it causes, I think.

      Gay marriage would not cause any of these problems. It would (arguably) raise the national divorce rate, as a certain number of gay couples would presumably get divorced at some point down the line, but it wouldn't lead to the chaos that some are imagining.

      February 8, 2012 at 7:57 am | Report abuse |
    • Primewonk

      Brian and Deacon answered your questions nicely.

      What concerns me is that each and every one of your questions has been asked and answered on these threads tens of thousands of times. I seriously doubt that this is ypour first rodeo. You undoubtedly have learned the answers to your questions thousands of times. This leads me to wonder why folks like you spend such an inordinate amount od time fixating and fantasizing about doing the doggie, porking the pig, diddling your daughter, or sucking the Subaru.

      February 8, 2012 at 9:17 am | Report abuse |
  15. Vinifera

    This sets the precedent that voting on an issue is irrelevant. When the rights of the unborn are brought to referendum, a judge will use the 14th amendment to overturn roe-vs-wade. So I guess it can work for conservatives too! Excellent!

    February 8, 2012 at 6:15 am | Report abuse |
    • Stephen in VA

      Nah, it only proves that voting for the specific purpose of taking away someone's rights is irrelevant, and that truly is a great thing to see a court stand up for.

      February 8, 2012 at 7:39 am | Report abuse |
    • Primewonk

      It sets no precedent. It simply says that if you vote on an unconsti.tutional measure, that measure will be tossed out.

      February 8, 2012 at 9:36 am | Report abuse |
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