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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    Can anyone give me ONE non-religious reason to oppose gay marriage?

    February 8, 2012 at 9:24 am | Report abuse |
    • ddrew78

      I suppose some will come with the 'cannot conceive children' argument. Or maybe the 'I want to marry my dog' argument. Some may even come right out and say 'I just don't like it'. No matter which you get, none will make any sense.

      February 8, 2012 at 10:00 am | Report abuse |
    • Eric

      At least the "I just don't like it" argument is an honest one. I can respect that even if I vehemently disagree. These other arguments are so disingenuous. As someone pointed out earlier, we already have laws...consent laws...that would prevent marrying children or your dog/pony/whatever. In the eyes of the law, none of these individuals are capable of giving consent, so therefore it is not legal. Adults, on the other hand, are perfectly capable of giving consent and should not be restricted on who they can marry (as long as the other party(s) are also adults of course)

      February 8, 2012 at 10:19 am | Report abuse |
  2. Johnson

    After spending $25 million, some of which came from Romney – the Mormons are losing this one. They have been unable to purchase the courts in California.

    February 8, 2012 at 9:27 am | Report abuse |
  3. Jim

    In Indiana there is a Baptist church on every corner. Now THAT'S Hell.

    February 8, 2012 at 9:33 am | Report abuse |
  4. Tom


    February 8, 2012 at 10:00 am | Report abuse |
  5. Don

    Here's a "compromise" I don't think I've seen anywhere yet:
    1. All rights given to married couples shall be granted in full to "domestic partner" couples, and no person, business, or organization may deny rights to domestic partners that are granted to spouses.
    2. The definition of "domestic partnership" includes any couple married in a ceremony conducted by a person authorized to perform "recognized" marriages, even if the marriage itself is not recognized.

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

      Great idea on paper Don, but just in case you have forgotten your history lessons, we already tried the "separate, but equal" thing with blacks and that didn't work out so well. There is no reason to expect ti to work any better here...

      Insanity: doing the same thing over and over again and expecting different results.
      Albert Einstein

      February 8, 2012 at 10:22 am | Report abuse |
  6. TRouble

    This should remain a state by state issue to decide and NOT the Feds.

    February 8, 2012 at 10:05 am | Report abuse |
    • BR

      Just like whites-only services were decided state to state for a while?

      February 8, 2012 at 10:10 am | Report abuse |
  7. Andrew

    Truthhurts–what civil rights are you babbling about? Do you even know how rights work?

    February 8, 2012 at 10:08 am | Report abuse |
    • SPENT

      What about my rights..I want my rights...where are my rights...I am civil, where are my rights...I want my rights to play golf without pay..any course in America when I am there, where are my civil liberties?

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

      Sure do! You have the obligation to die when I wish, that is my right.

      February 8, 2012 at 10:26 am | Report abuse |
    • bighulawood

      @Spent – if you SPENT on intelligence, you overpaid.

      February 8, 2012 at 10:29 am | Report abuse |
    • Ed

      Spent – What rights are you blabbering about? You are not legally restricted from playing golf or even quitting your job to do so.

      February 8, 2012 at 10:30 am | Report abuse |
    • Foghorn Leghorn

      *** Six year old troll with his finger up his nose ***


      Sure do! You have the obligation to die when I wish, that is my right.

      February 8, 2012 at 11:04 am | Report abuse |
    • Nicole

      Spent sure doesn't sound very intelligent in his arguments...

      February 8, 2012 at 11:36 am | Report abuse |
  8. Ginger

    If marriage could truly be defined to be between two adults that are not related, then I could go for that. My fear is the next group will want to have their rights and marriage will continue to morph into new things. Our country is growing and expanding all the time and new views and beliefs are always being brought in. What once seemed the norm is no longer the case. Normal to me may seem crazy to someone else.

    February 8, 2012 at 10:15 am | Report abuse |
    • Bill C

      There is a man in Utah suing for the right to marry four women (why, I don't know.) How is that any different than the right to marry one man?

      February 8, 2012 at 10:35 am | Report abuse |
    • Alex

      "My fear is the next group will want to have their rights and marriage will continue to morph into new things."

      Can you expand on that a little? What "new things" will rights and marriage morph into? No sarcasm or criticism intended here: Are you one of those conservatives who has, in my opinion, no reasonable argument against gay rights so you say things that are completely without merit such as, "It'll destroy the American family," or "What THEY want to do is against MY religious beliefs," or "What's next? People marrying animals?"

      February 8, 2012 at 10:43 am | Report abuse |
    • tribomber

      That's an old lawyer trick. You can't defend what you are trying to defend (i.e. that marriage should not be between two people of the same gender) so you instead defend the next extreme (i.e. that marriage should not be between a person and multiple persons or perhaps a person and an animal) and claim that there's a "slippery slope" from the first to the next. Well Ginger, there ain't no slippery slope here. Let's stick to the current argument and not muddy things up by pulling in the extremes.

      February 8, 2012 at 11:17 am | Report abuse |
    • Flappy

      Maybe you should worry about things that are real instead of worrying about imaginary things that are not happening. Just a thought.

      If we start applying the slippery slope argument then we shouldn't let people leave their front doorstep because that might be the first step to an axe murdering killing spree.

      Let's just stick to what is actually happening in the here and now and not summon imaginary goblins shall we?

      February 8, 2012 at 11:23 am | Report abuse |
    • Jumper265

      New things are animals, next people will want to marry their animals. People are so stupid..A man and a woman makes a baby...case closed...Just because my dog loves me and I love it doesn't make it a marrage or romantic relationship it's a dog. That's what a woman should say about another woman and a Man about another Man.

      February 8, 2012 at 11:26 am | Report abuse |
    • John

      Your argument is flawed. If you agree with this then agree with it. Whwn "other things" come up then disagree. What's right is right and nobody should have rights taken away by majority vote. We all pay taxes and have the right to happiness and the same benefits in this country.

      February 8, 2012 at 11:27 am | Report abuse |
    • Flappy

      Gee Bill. How is marrying 4 women different than marrying 1 man? If you were blind and mentally deficient you probably wouldn't even notice the difference.

      February 8, 2012 at 11:29 am | Report abuse |
    • Observer

      Bill C,

      "There is a man in Utah suing for the right to marry four women (why, I don't know.) How is that any different than the right to marry one man?'

      It's called "polygamy". Look it up.

      February 8, 2012 at 11:36 am | Report abuse |
    • Mickey

      Ginger! I think you hit it when you said 'you are afraid'. Most of the Gay issue is that the majority of them don't know what Gay people are really like. They have only heard what they see on TV (which in most cases is not real) or what their religion teaches! Sure there are going to be people suing to marry cows or something, but that still goes on now. For the most part it isn't news that makes it to the networks. "FEAR" is what has kept the Gays from having equal civil rights! If you work or have a social life, I am sure you know at least one Gay person. We are 10+% of the population! I promise you that a Gay person liviing with another Gay is probably, if not completely, like your family and straight friends! Don't FEAR anything in this world Ginger and it will open a door to society you didn't know existed!

      February 8, 2012 at 11:43 am | Report abuse |
    • Sid Airfoil

      I disagree with your implicit assumptions. You talk as if people need to JUSTIFY their right to marry before they can have it. This is backwards. People should automatically be allowed to marry unless the government can justify stopping them.

      The question is NOT "Why we should let gays marry?". The question is "Why is it important that we violate their right to marry?". If their is no good answer to the latter question, then they can marry...just like any other human being in this country.


      February 8, 2012 at 11:44 am | Report abuse |
    • Chris

      Polygamy is the obvious next step. Interfamily mariage after that.

      February 8, 2012 at 12:04 pm | Report abuse |
    • Unplugged

      Chris – No matter how much you hope for inter-family marriage, it ain't going to happen. The law requires only a rational basis for restricting rights regarding marriage. There is an obvious rational basis for restricting inter-family marriage and polygamy, no matter how much you want it.

      February 8, 2012 at 12:11 pm | Report abuse |
    • txeduator

      Ginger and Chris, yep, filthy ped0philes will next be suing for the right to marry their L0litas or man-boy love objects. Or people suing to marry animals. Or polyandry or polygamy. Once the biological, sociological, religious or cultural lines are crossed, then they exist no more and only create more openings for "legal recognition" of more s-xual deviance. The list goes on. Flaming liberals are never at peace with peace.

      February 8, 2012 at 12:17 pm | Report abuse |
    • Jo

      Good point. I think their ruling is a bit twisted but not unexpected. Seems like they did this on purpose so that a narrowed issue won't go to the Supreme Court. This issue should go to the Supreme Court since it eventually affects all of Americans and their values that may be shut legally from the public square from SSM advocates.

      February 8, 2012 at 12:18 pm | Report abuse |
    • txeduator

      @ Unplugged, what "rational basis" do you refer to to restrict marriage between family members? I can't see what you're talking about. Unless you are you referring to violating the laws of biological reproduction?! And gay marriage doesn't violate this "rational basis"?! poor, poor logic. Furthermore, there is no rational basis to restrict polygamous or polyandrous marriage. In fact, those religious groups can point to the specific, clearly written, express right to religious free exercise in the 1st amendment. They have a valid, sound civil right claim to plural marriage. I'm having a hard time finding that civil right for gays....can you show me where it is?

      February 8, 2012 at 12:26 pm | Report abuse |
    • Bruce

      Yeah, people like Newt Gingrich might want to define "marriage" as some form of serial-successive-adulterous-polygamy or something like that...

      February 8, 2012 at 12:27 pm | Report abuse |
    • Brad

      What does it matter though Ginger? I mean, if marriage to you means you are joining together with someone you love, then that is what it means. If someone else thinks it means something else, then good for them, doesn't mean that for you. They say gays are destroying marriage, but nothing about marriage has changed, it is still between the two people involved that define the marriage, not what outsiders think.

      February 8, 2012 at 12:28 pm | Report abuse |
    • txeduator

      @ Brad, being joined together in "the act" or in life isn't the same thing as forcing other people or the government to "recognize", "accept" or "approve" of your private taboo. Nobody wants anything shoved down their throats.....no pun intended.

      February 8, 2012 at 12:35 pm | Report abuse |
    • Primewonk

      @ Bill – the reasons against plural marriages has to do with with property rights and rights of survivorship. Let's say you have 4 wives. You are tragically injured and in ICU gorked with no chance of recovery. The doctors gather your wives and ask if they should pull the plug. 2 wives say yes, let him die, while the other 2 say no – he hasn't suffered enough yet. Who wins?

      Sadly, you have now passed on. Are your 4 wives still married to each other? What if you left no will? What if 3 of the wives gang up and kick the 4th wife out?

      February 8, 2012 at 12:41 pm | Report abuse |
    • Charlie

      Why should I not be able to marry my son or daughter. This getting the same benefits.

      February 8, 2012 at 12:42 pm | Report abuse |
    • Joe from CT, not Lieberman

      Yeah, all these new views and crazy beliefs. Next thing you know someone will be saying that all of us are created equal and endowed by the creator with certain inalienable rights. People will want to vote, and practice whatever religion they want, and assemble and speak out against the government if they feel it is wrong. Some people just want too much! Then someone may even go so far as to say that everyone over 18 should be allowed to vote as long as they are US citizens regardless of what race, color, creed, or gender they are, too!

      February 8, 2012 at 12:53 pm | Report abuse |
    • DeeNYC

      Maybe catholics are lining up to marry animals and small children.

      February 8, 2012 at 12:53 pm | Report abuse |
    • Stupidity

      I hope white americans should support polygamy, atleast your race will remain a majority in america and you will not be wiped out of europe.

      February 8, 2012 at 12:56 pm | Report abuse |
    • T. E. Lawrence O. A.

      HEY Bill C! YOU ASK: "There is a man in Utah suing for the right to marry four women (why, I don't know.) How is that any different than the right to marry one man?"
      ANSWER IS: In exactly the same way as the right to marry one woman! GET IT!?!

      February 8, 2012 at 1:00 pm | Report abuse |
    • Soporifix

      In what way is two adults getting married a "new thing?" The only issue here is whether the government can exclude certain groups of people from the definition of "adult" here based on whether a majority of people like them or not.

      February 8, 2012 at 1:10 pm | Report abuse |
  9. Andrew

    Put up or STFU, I gladly would but the only person who gets across Georgia faster than I do is Sherman.

    February 8, 2012 at 10:21 am | Report abuse |
    • Flappy

      Is there supposed to be a point in there somewhere?

      February 8, 2012 at 11:32 am | Report abuse |
    • Nathan

      What on Earth are you talking about?

      February 8, 2012 at 1:07 pm | Report abuse |
    • Nathan

      Ding dong Wally llama jumpin' with an ice pick, she thinks I'm going in.

      February 8, 2012 at 1:08 pm | Report abuse |
  10. Chrissy

    The problem is that marriage (nonsecular) is recognized at all by the feds in the single form that they have opted to recognize. There are other forms, and truly we as a society have to draw some lines as to what we are willing to accept to offer benefits for. Taking away the labels would be a nice place to start. Let any relationship between CONSENTING ADULTS be registerable in a secular manner. Treat such a relationship as a business-like contract between parties. Contracts have to be recognized by other states. Simple as that. If you want a religious ceremony to celebrte your union, then have at it. But the federal or state recognized union is simply a contractual one that can only be entered into by consenting adults (and yes, that means they need to be human). No church would be obligated to perform any rites their faith doesn't agree with. However, court/civil authorities would need to accept paperwork from anyone submitting a request to have their contract notarized/registered within their state without bias.

    February 8, 2012 at 10:37 am | Report abuse |
    • McBain

      Absolutely. This is exactly what it needs to become. We have secular government, lets get rid of the loaded terminology.

      February 8, 2012 at 11:02 am | Report abuse |
    • Mickey

      GREAT Post Chrissy! I couldn't have said better!

      February 8, 2012 at 11:46 am | Report abuse |
    • JamesT

      Very well put!

      February 8, 2012 at 12:09 pm | Report abuse |
    • STEVE

      ok so everybody that believes in god should just have faith the those who despise them wouldn't use this as a wedge against them. Striipping their pastors of legal authority to marry, threatening tax exempt status. We all know what Bill Maher and his army of Zitgeisters want and this is a step in that direction.

      February 8, 2012 at 12:10 pm | Report abuse |
    • Primewonk

      Steve – we've gone 230 years without forcing Catholic churches to marry Jewish couples. Why do you think we're going to start forcing Baptist churches to marry gay couples? It makes no sense.

      February 8, 2012 at 12:45 pm | Report abuse |
    • JohnB

      This is the best post I have seen on the subject! You should run for office!

      February 8, 2012 at 12:53 pm | Report abuse |
  11. bighulawood

    I'm a free, consenting American adult and I love you. You're a free, consenting American adult and you love me. If neither of us are already in a binding relationship, let's get married. That's all there is too it. And as for the haters – STFU and mind your OWN business.

    February 8, 2012 at 10:41 am | Report abuse |
    • edwardo69

      I so agree! Why are they so obsessed with my love life? I don't obsess about theirs. Geez. My partner and I just adopted 2 kids, that 2 hetero, drug users created, and we, and our kids, are ridiculed around every corner.

      February 8, 2012 at 11:18 am | Report abuse |
    • Dave

      No, it's time for you all to STFU and get right with God as this will only continue to push this country down a path of destruction. You doubt it? Keep it up and we shall see.

      February 8, 2012 at 11:59 am | Report abuse |
    • Unplugged

      Eww. Dave is threatening us with hell and darnation. That won't work too well in a free nation.

      February 8, 2012 at 12:05 pm | Report abuse |

      dave: i dont think your imaginary god would want you jamming your beliefs down others throats, if he did we wouldn't have free will. good job being a christian

      February 8, 2012 at 12:13 pm | Report abuse |
    • txeduator

      @bighulawood, what a logical fail..... try again. who says being married (g-y or stra-ght) prevents you from having s – x with someone you're not married to? haven't you heard of sw1ngers? or the 45% of American marriages dealing with infidelity? go back to your den and breed.

      February 8, 2012 at 12:37 pm | Report abuse |
    • banasy©

      txeducator, what bighulawood has written is more moral and logical than your post.
      Not to mention, true.
      Sounds like bighulawood has a firmer grasp on marraige than you do...

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

    Huh, according to the right-wingnuts if gay people were allowed to marry there would be locusts and people marrying animals and earthquakes and multi-headed beasts roaming the land. I went outside today and was sorely disappointed, I WAS PROMISED LOCUSTS!!!

    February 8, 2012 at 10:48 am | Report abuse |
    • richunix

      Sigh and I was hoping for the multi-headed beast thingy……

      February 8, 2012 at 11:06 am | Report abuse |
    • edwardo69

      The sky is falling, the sky is falling. Heteros seem to have "Chicken Little" syndrome.

      February 8, 2012 at 11:19 am | Report abuse |
    • Flappy

      It's raining men!

      February 8, 2012 at 11:34 am | Report abuse |
    • lilly

      Edward, not all heteros have the said mentioned syndrome, it's just that those that do, seem to scream the loudest. Group with the biggest tantrum wins.

      February 8, 2012 at 11:51 am | Report abuse |
    • bighulawood

      Did you check out the Santorum campaign headquarters? I believe they have locusts.

      February 8, 2012 at 11:52 am | Report abuse |
    • Dave

      Keep it up and see what will happen. Things are already happening to this country because of decisions like this.

      February 8, 2012 at 12:01 pm | Report abuse |
    • Kelly

      I wonder if the multi-headed beasts are looking to get married?? Oh, would that be polygamy?

      February 8, 2012 at 12:38 pm | Report abuse |
    • Ed

      Oh Dave, are you one of those folks who thinks hurricane Katrina was God punishing us for tolerating gays? Why does he always punish indiscriminetly? You'd think He could be more precise.

      February 8, 2012 at 12:39 pm | Report abuse |
    • zeke123

      Read Romans 1:18-32.

      February 8, 2012 at 1:34 pm | Report abuse |
    • Edwin

      Kelly: you'd only be able to marry one head. This idea is supported by what happens with conjoined twins...

      February 8, 2012 at 2:01 pm | Report abuse |
  13. Bill, Bloomington Il

    Alex, have you never heard of polygamy?

    February 8, 2012 at 10:52 am | Report abuse |
    • edwardo69

      Bill – globally, Polygamy marriages are more common than monogomous. I do believe I heard that somewhere. I'll have to research it.

      February 8, 2012 at 11:20 am | Report abuse |
    • STEVE

      Only if you count each wife as a separate marriage.

      February 8, 2012 at 12:13 pm | Report abuse |
  14. blowme

    no matter the argument, you cannot deny anyone the right to happiness. It is an inalienable right.

    February 8, 2012 at 10:54 am | Report abuse |
    • txeduator

      except when it violates others' rights. go study Locke and the Enlightenment and come back with more education. lol

      February 8, 2012 at 12:39 pm | Report abuse |
    • JCMars

      I hope you left wingers remember this when it comes to picking people's pockets with taxes. What happens to the "right to happiness" then? Oh it's only crotch happiness that matters.

      February 8, 2012 at 12:42 pm | Report abuse |
    • Edwin

      JCMars: the right to happiness is not linked to wealth... they debated that. Jefferson's "right to happiness" beat out Adam's "right to property" and the country has pretty much been that way since.

      February 8, 2012 at 2:04 pm | Report abuse |
    • yeahalright

      So txeduator, what rights of others does the right of 2 people getting married infringe upon?

      February 8, 2012 at 4:11 pm | Report abuse |
  15. kenny

    religionuts are losing.. .haha... long live rational thinking

    February 8, 2012 at 11:04 am | Report abuse |
    • jimbob


      February 8, 2012 at 12:20 pm | Report abuse |
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