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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    I don't understand why this issue is so hard for America. Who cares?!!!? Let them marry.....

    February 8, 2012 at 11:05 am | Report abuse |
    • John Q.

      Our country was founded by the super-religious, which is why we're up tight about the most useless endeavors. Luckily rational thought is always brought about by youth as the old ways die with the old. Just have to wait and bide our time and religion will eventually be an after-thought, as will all the practices associated with it.

      February 8, 2012 at 12:50 pm | Report abuse |
    • Edwin

      John Q: our country was POPULATED by extremists, but the founding fathers were closer to agnostic than religious in today's terms. Jefferson went so far as to edit the entire Bible, removing references to miracles and the like (which he considered ridiculous).

      February 8, 2012 at 2:06 pm | Report abuse |
  2. phoenix86

    What the ruling means is that the will of the people can be ignored by the few. Also known as mob rule. We move closer to totalitarianism everyday, all in the name of protecting this or that.

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

      Sleeping during social studies I see.

      February 8, 2012 at 12:47 pm | Report abuse |
    • Primewonk

      No. What the ruling means is that if you enact an unconsti.tutional measure, you should expect to have it overturned.

      February 8, 2012 at 12:52 pm | Report abuse |
    • Bruce

      No, it's not "mob rule," it's "representative government" aka a "republic."

      Direct democracy via the referendum has always taken a back-seat to a Consti.tutional republic, and furthermore it is not at all clear that a referendum like Prop 8 is an accurate measure of this mythical "will of the people."

      February 8, 2012 at 12:57 pm | Report abuse |
    • Bruce

      In fact, "mob rule" more-accurately describes the referendum, not the consti.tutional actions of the courts in this case.

      February 8, 2012 at 1:05 pm | Report abuse |
    • yeahalright

      So wait, the will of the few overcoming the will of the many is....mob rule??? Might want to re-think (or think in the first place) that analogy.

      February 8, 2012 at 3:45 pm | Report abuse |
    • Ozymandias71

      Mob rule – it doesn't mean what you think it means. Just sayin'.

      February 8, 2012 at 5:25 pm | Report abuse |
  3. WASP

    ok same gender marriage is covered by the declaration of independence. don't believe me check this out. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That, to secure these rights, Governments are insti.tuted among Men, deriving their just Powers from the consent of the governed."
    so now if all men are created equal, and ofcourse seeing due to amendments women as well, then if a straight couple can marry then a same gender couple can also. Not to mention the number one thing all these people forget is the church doesn't marry you. the church merely conducts the ceremony if you so choose. you recieve a piece of paper to turn in to the state that truly saids "ok now your married." As for the whole creator part of that, me and my wife contributed equal portions of our DNA to create our son. so that removes the other religious arguement agai.nst it. so now that this is clear seperation church and state. church has no power to say who can and can not marry, the government doesn't even have that power unless the governed give it to them.

    February 8, 2012 at 12:29 pm | Report abuse |
    • Tom

      I agree with your basic point in supporting the right to marriage for all, but the Declaration of Independence has no force of law. At all.

      February 8, 2012 at 12:56 pm | Report abuse |
    • fortyfive

      test post number 2

      February 8, 2012 at 4:27 pm | Report abuse |
  4. Ho

    What it really means that "We the people" don't really matter any more. The president always talks about the will of the people, but here is a case of the will of the people (by a direct vote) being trumped and brushed under the rug by a court. Ludicrous, preposterous, and against everything this country was founded up (letting the people decide).

    February 8, 2012 at 12:30 pm | Report abuse |
    • HoHo

      Ho, let's take that thought process and expand it. So, it whites thought that black people were inferior and passed laws to make them sit in the back of the bus that would be okay? We've already been down this path and you can see where it goes. You don't have the right to infringe on people's happiness, especially consenting adults that do not cause harm to others.

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

      Actually, the fact that the Bill of Rights trumps direct democracy and a representative democracy (i.e. a republic) trumps referendum is firmly established by the Consti.tution of the United States of America.

      February 8, 2012 at 12:55 pm | Report abuse |
  5. JCMars

    This is all about money, pure and simple. Another ridiculous made-up "right" court created. I propose that government get out of the marriage business (no special tax treatment, no spousal benefits, etc.). This is all about money and not about "love."

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

      It's a whole lot more complicated than that. You have two centuries of accu.mulated family law and property law on the books that affect lives in many different ways that go well beyond the tax code.

      February 8, 2012 at 1:15 pm | Report abuse |
  6. Bruce

    I'm not sure what all the fuss is over polygamy. Even Jesus recognized that Moses allowed the polygamy-over-time practice of divorce and remarriage, in spite of it being adultery (Jesus' word, not mine).

    What's precious to me is watching Newt Gingrich talk about this, given his past, as well as his present "marriage" (if we want to call it that - wait why should I BE FORCED TO RECOGNIZE NEWT'S RELATIONSHIP AS MARRIAGE? Stop forcing me to support Newt's adultery by calling it marriage! There should be a Prop 8.1 or something!!!1!1!)

    February 8, 2012 at 12:45 pm | Report abuse |
  7. edvhou812

    What does Prop 8 mean? Dogs and cats! Living together! Mass hysteria!

    February 8, 2012 at 1:06 pm | Report abuse |
  8. Vince

    What does God or Jesus have to do with any of this? Neither of them issue marriage licenses....the state does.

    February 8, 2012 at 1:06 pm | Report abuse |
    • Lennyb00b

      typical cnn, censor me.....

      February 8, 2012 at 1:33 pm | Report abuse |
    • yeahalright

      Lenny, I guarantee you nobody gives enough of a rat's a about you to censor you.

      February 8, 2012 at 7:05 pm | Report abuse |
  9. Jerry

    Since he defends these maladjusted flunkies so much, is Toobin known to take clandestine trips to California? Just asking...

    February 8, 2012 at 1:13 pm | Report abuse |
    • Bruce

      Why, do you find him attractive? Do you want to hook up? You may not be his type, so don't get your hopes up...

      February 8, 2012 at 1:16 pm | Report abuse |
    • Amy

      Anyone who has a problem with what other people do in their own home is the maladjusted flunky, Jerry. Sorry to break it to you. Might I suggest some therapy to deal with your issues?

      February 8, 2012 at 1:28 pm | Report abuse |
    • Ed

      A careful reading reveals no "defense" of the decision; only reporting and analysis, no personal opinion.

      February 8, 2012 at 2:02 pm | Report abuse |
    • Bruce

      Ed, Jerry apparently didn't make it past Toobin's photograph to get to the careful reading part, so he started speculating/fantasizing about the possibility that Toobin might be not only gay, but available.

      He was just asking...

      February 8, 2012 at 2:05 pm | Report abuse |
    • dduncan

      hey Jerry. any man that makes gay innuendo jokes, is a closet case. just saying honey.

      February 8, 2012 at 2:14 pm | Report abuse |
  10. sam

    What it means is the peoples voice means nothing. Prop 8 was voted on by the people of the state. The majority chose to put that law in place...plain and simple.

    February 8, 2012 at 1:16 pm | Report abuse |
    • DC

      Do you seriously not understand how a three-pronged system of checks and balances works? If most people who support PropH8 are as intelligent as you are, no wonder it's falling apart.

      February 8, 2012 at 1:25 pm | Report abuse |
    • Bruce

      The referendum was trumped by the actions of the court. Direct democracy may have its place, but seriously now–people really need to come to grips with the fact that we live in a consti.tutional republic and not a democracy. The methods of exercising the "will of the people" are representative and not direct, and are kept in check by both the executive and the judicial branches of government.

      Seriously, people. Civics 101 already!

      February 8, 2012 at 1:25 pm | Report abuse |
    • D

      Sam...so you are ok with people voting on the civil rights of others? I am sure your wife and any minority friends/neighbors would likely disagree with your opinion.

      February 8, 2012 at 1:26 pm | Report abuse |
    • JeramieH

      Rights aren't decided by popular vote.

      February 8, 2012 at 1:26 pm | Report abuse |
    • Steve From NH

      People are not allowed to take away the rights of others, doesn't matter if it's by a vote. The same would apply if people voted to outlaw guns, it wouldn't be allowed.

      February 8, 2012 at 1:28 pm | Report abuse |
    • Johnjon

      what the "majority" chose, was to legalize discrimination. legalized discrimination NEVER wins out.

      February 8, 2012 at 2:02 pm | Report abuse |
    • dduncan

      like the majority that approved of slavery, segregation, and women barefoot and pregnant? you very dumb.

      February 8, 2012 at 2:16 pm | Report abuse |
    • Peter

      What it means is that we do not stand for Mob Rule. How would you feel if the people of California voted that people named Sam were not allowed to marry?

      February 8, 2012 at 2:29 pm | Report abuse |
    • beth

      The voters in pre WWII voted in Adolf Hitler. That did not make the actions of the German government right.

      February 8, 2012 at 2:37 pm | Report abuse |
  11. Bruce

    While Toobin might be correct in saying that this doesn't go beyond California in the sense of marriage equality being established (or rejected) by precedent in the US Supreme Court because of the limited nature of the ruling, I wonder if on a different subject the SC might weigh in?

    That is, what about the relationship between the Bill of Rights, the courts, and the act of direct democracy known as the referendum?

    I think it's high-time for California's out-of-control referendum process to be reigned in. If the State of California is unable to do so, then perhaps the US SC should be means of accomplishing this.

    February 8, 2012 at 1:23 pm | Report abuse |
  12. zeke123

    test post

    February 8, 2012 at 1:24 pm | Report abuse |
  13. Bruce

    Thanks for the link. It looks to be a level-headed view of the subject.

    Of course, the elephant in the room for conservatives who support the "conjugal view" of marriage is the prevalence of divorce-and-remarriage (I'm looking at you , Newt Gingrich).

    The conjugal view of marriage is completely undermined by divorce and remarriage being recognized as marriage, even moreso than it is undermined by the consensual view of marriage.

    February 8, 2012 at 1:34 pm | Report abuse |
  14. Mike

    This means hypocrates have a new cause. They preach less government in our lives, then they turn around and try and make laws that descriminate.

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

      Apparently, legislating morality is different than other types of regulations.

      February 8, 2012 at 2:31 pm | Report abuse |
    • Nah

      peter: "Apparently, legislating morality is different than other types of regulations."

      All legislation legislates morality. Why? Because all laws are aimed at what "should" be done, what "should" be prohibited, and how the world "should" be.

      February 8, 2012 at 2:33 pm | Report abuse |
  15. M1sf1ts

    Gay Coupling is NOT Marriage.

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

      Amen to that!

      February 8, 2012 at 1:47 pm | Report abuse |
    • dduncan

      it is in many states dummy.

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

      Says who? You and your religious beliefs? How about we impose Sharia law on people like you. Would you be OK with that? What you religious wingnuts need to understand is that "your" belief system does not automatically get to be imposed on all of us. Henceforth, Sharia law for you and yours...

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

      Pretty much says it all when you call it "gay coupling".

      February 8, 2012 at 2:28 pm | Report abuse |
    • Carawaigh

      Capitalization is NOT Your Cruise Control For Cool.
      What is being discussed here is legal marriage, ie. marriage in the eyes of the court, not in those of any church or any god.

      February 8, 2012 at 3:06 pm | Report abuse |
    • yeahalright

      So don't marry someone of your gender. Why do you care so much who other people marry?

      February 8, 2012 at 3:32 pm | Report abuse |
    • Krog

      After reading the UN Universal Declaration on Human Rights, I have failed to find anywhere that says marriage is a basic human right. Therefore, please stop using that as an argument. Saying 2+2=5 over and over does not make it true.

      February 10, 2012 at 2:45 pm | Report abuse |
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