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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    jews promote homosexuality to ruin and conquer our societies with decadence and pitting one group against the other by supporting all filthy and impure

    February 8, 2012 at 6:56 am | Report abuse |
    • banasy©

      You seriously need therapy is you believe that.

      February 8, 2012 at 8:48 am | Report abuse |
  2. Doug

    The Prop 8 ruling means that you guys are a joke, again.

    February 8, 2012 at 7:20 am | Report abuse |
  3. Scotty

    It doesn't matter if because the federal gov't still does not RECOGNIZE IT!! DUH

    February 8, 2012 at 7:49 am | Report abuse |
    • Primewonk


      February 8, 2012 at 8:38 am | Report abuse |
    • Jim in PA

      The Federal Govt doesn't belong in the marriage business. Just more big government interference from so-called conservatives....

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

      Marriage is a state issue, not a federal one.

      February 8, 2012 at 9:26 am | Report abuse |
    • ddrew78

      You are correct, it's a state issue. Until you get to federal income tax, then it becomes a federal issue due to various credits and deductions, filing status, etc.

      February 8, 2012 at 9:53 am | Report abuse |
    • Primewonk

      Brian – SCOTUS would disagree with you.

      February 8, 2012 at 10:13 am | Report abuse |
  4. Scott

    Just nit-picking here, but this story has an error in fact near the end when Mr. Toobin says that California is the "nations biggest state". Tell that to Alaska. California is the most populous state.

    February 8, 2012 at 7:54 am | Report abuse |
    • Cate

      Judging by the context of the paragraph where her calls CA the biggest state, I'd say he meant population not land area.

      February 8, 2012 at 8:19 am | Report abuse |
    • Golyadkin

      Seeing as he mentions California's 39 million residents, it's a safe assumption that by "biggest" he was talking about population and not land area.
      Remember to use your context clues.

      February 8, 2012 at 9:59 am | Report abuse |
  5. AaronT3

    Discrimination: treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit: Examples – racial and religious intolerance and discrimination. IT'S ILLEGAL PLAIN AND SIMPLE why the heck do we need to waste tax dollars in an attempt to make a distinction against a category of people? CRAZY

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

      And yet everychoice we make is based on a sort of prejudice. I dont like people who are lazy and loud so I dont hire them, they belong to a group of people who are lazy and loud. I dont like pedophiles. murderers, etc. all groups. So they should not be prejudged?? No matter if you are picking apples over oranges, you make judgemental decisions all the time. In this case the people of California voted and it should stand, end of discussion. You should not have the govt step in and say that the people themselves are not capable of making educated decision for htemselves.

      February 8, 2012 at 8:58 am | Report abuse |
    • banasy©

      The NATION voted, and yet we still had 8 years of Bush...Kinda blows that argument to smithereens....

      February 8, 2012 at 9:14 am | Report abuse |
    • Sean

      Unless you are a church then by all means discriminate away. Although not one theist has explained how anti-discrimination laws change their theology. They simply hide behind a phrase they so often condemn and that is Separation of church and state. First taxes now discrimination at what point does a church have to follow the law? Murder, fraud maybe health inspections? But I digress, back to the issue at hand.

      The nation once approved of slavery, Jim crow laws and no rights for woman. It wasn’t right then any more than its right now.

      February 8, 2012 at 9:28 am | Report abuse |
  6. NExt Up

    How about the "rights" of an individual to marry a pony? Heck, they're in love. And what about a pedophile marrying a child? They want "rights" too! Hey if the majority doesn't endorse it, it must be a good thing to the "progressive liberal wish I lived in Europe" element. Forget a fence along the Mexican border. They need one around California. It could then be one giant bathhouse! It should be a nice empty space after a generation or two and then the normal folks could resettle it.

    February 8, 2012 at 8:57 am | Report abuse |
    • Common Sense

      It stops with two adults - because children and ponies cannot legally consent.

      February 8, 2012 at 9:05 am | Report abuse |
    • Mike124

      The law recognizes the autonomy of individuals and their ability to exercise choice and give consent. Which rules out marrying a pony because a pony can't make a choice. And the law also recognizes age of consent, with a child being too young without the fully-developed faculties to make that choice. So the law also won't give people the right to marry children or ponies. Don't be so dense.

      February 8, 2012 at 9:11 am | Report abuse |
    • banasy©

      Ah, someone always brings this up.
      Never fails, and always amusing.

      February 8, 2012 at 9:17 am | Report abuse |
    • Fearless Freep

      Why dont you go marry a cement mixer.
      You are brain dead anyway.

      February 8, 2012 at 9:26 am | Report abuse |
    • BR

      Ignorance, hyperbole and strawmen....oh MY!

      February 8, 2012 at 10:02 am | Report abuse |
    • bigfruitbasket

      The same exact argument was used 50-100 yrs ago to keep blacks and whites from marrying. The wording hasn't changed, the context has changed.

      February 8, 2012 at 10:04 am | Report abuse |
    • geggyg

      Hey nextup , if you married the pony wouldnt the donkey you sleep with get jealous. or would it be an open marriage like Newt wanted

      February 8, 2012 at 10:10 am | Report abuse |
    • Eric

      Mike...if he wasn't dense, he wouldn't be a Christo-fascist trying to shove his messed up religious beliefs down everyone's throat. If he wasn't dense he would realize that the path he follows has nothing to do with it's founder and goes against most of his teachings.

      February 8, 2012 at 10:13 am | Report abuse |
    • BR

      @geggyg – Pig, more likely.

      February 8, 2012 at 10:13 am | Report abuse |
    • yeahalright

      Yeah and what about NextUp's right to learn something and not to be an obfuscating delusional idiot?

      February 8, 2012 at 4:15 pm | Report abuse |
  7. D

    You are the definition of a terrible person.

    February 8, 2012 at 9:09 am | Report abuse |
  8. D

    Hopefully, in my lifetime, I'll be able to look back and think, "Remember when there was so much prejudice that people who love each other couldn't get married?" Just like I think, "Remember when women and black people couldn't vote?" It's just a matter of time before hate loses. Hate always loses.

    February 8, 2012 at 9:13 am | Report abuse |
  9. Shawn

    It means NOTHING. Tomorrow another court with overturn this ruling. Two weeks from now, yet another court will overturn the ruling of that court, and so on and so on. What a waste of time and money.

    February 8, 2012 at 9:15 am | Report abuse |
    • BR

      @Shawn – Fatalist much?

      Spoken like someone who has no vested interest in the outcome and therefore is fine with disenfranchising those who do. Must be nice in the hole you've crawled into.

      February 8, 2012 at 10:15 am | Report abuse |
  10. Taran

    And so the ruling of the majority by the minority continues. I guess the great american experiment is winding down. America is going the same way as the Roman empire and for the same reasons. At least the romans had a thousand years or so. America probably won't see 300 the way it is going.

    February 8, 2012 at 9:15 am | Report abuse |
    • banasy©

      If you think trampling on the rights of a minority is just and fine, I guess you're right.
      But you're wrong, anyway.

      February 8, 2012 at 9:19 am | Report abuse |
    • Fearless Freep

      The Roman Empire crumbled because it could no longer
      pay or feed the armies it needed to conquer the world.
      You may have a point there,
      but it had nothing to do with social values, you fail.

      February 8, 2012 at 9:29 am | Report abuse |
    • Taran

      fearless, such a narrow minded view. You are wrong, the degradation of their social values had a great deal to do with their downfall. Try doing some reading and research rather than trying to justify your depraved social values.

      February 8, 2012 at 9:32 am | Report abuse |
    • Jrod

      Degradation of their social values? You mean when they went from believing in multiple Gods and evolved into Christianity? I guess you're right. Putting religion in their government was their downfall too.

      February 8, 2012 at 9:52 am | Report abuse |
    • Andrew

      If by "minority" you mean "equal protection clause," then rock on.

      February 8, 2012 at 9:54 am | Report abuse |
    • BR

      In this case a major contributor to the vote going the way it did was a cool 23M in outright lies and misinformation from the Joseph Smith-ians in Utah. The majority sometimes gets it wrong. That's why we aren't a simple democracy...we're a republic and our system has checks and balances. Do I really need to list the atrocious behaviour that the majority in this country was in favor of until society caught up?

      Funny...that bit about the Romans. More interesting is the fact that xtianity came in not long before the crumbling began. Correlation doesn't equal causation....just sayin'. 😉

      February 8, 2012 at 10:07 am | Report abuse |
    • yeahalright

      I was going to write something but the heck with it. When you're willfully ignorant...well, you're willfully ignorant.

      February 8, 2012 at 4:17 pm | Report abuse |
  11. banasy©

    Ignorant argument.
    Your name fits well.

    February 8, 2012 at 9:16 am | Report abuse |
  12. Taran

    Either that or a cure for their genetic defect is found.

    February 8, 2012 at 9:18 am | Report abuse |
  13. tom

    What amazes me is all these ultra conservative tea baggers, GOP's and evangelicals are all screaming about gov't being too big and involved in our lives and here they are trying to have gov't interfere with people's lives about who they should love and marry. As always...they're a bunch of hypocrites.

    February 8, 2012 at 9:21 am | Report abuse |
    • mike

      what do you think the liberal gays did when they took it to the court system!are they not the goverment?frickin hypocite!

      February 8, 2012 at 9:50 am | Report abuse |
    • Jrod

      @Mike....newsflash....liberal gays wanted government intervention, genius.

      February 8, 2012 at 9:54 am | Report abuse |
    • BR

      Ummmm...Mike...this action wouldn't be necessary if the opposition hadn't misrepresented this issue into law.

      February 8, 2012 at 10:22 am | Report abuse |
  14. Dirty Deeds Done Dirt Cheap

    More heterose-x-ual black woman die of a-i-d-s
    today than any other group.
    They have this strange idea that they wont get a-i-d-s because they are straight.

    You are not only uneducated, but you are sick.

    February 8, 2012 at 9:22 am | Report abuse |
  15. Dirty Deeds Done Dirt Cheap

    **** Taran

    Either that or a cure for their genetic defect is found.

    You mean like people who have blue eyes instead of brown,
    or left handed instead of right handed ?

    February 8, 2012 at 9:24 am | Report abuse |
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