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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    @Sam – Majorities are not empowered to infringe on Const-tutionally protected rights, (specifically those within the Bill of Rights as incorporated by the 14th Amendment). If a majority voted and passed an amendment that Sam be executed because they don't like him, should the majority's voice win?

    February 8, 2012 at 1:43 pm | Report abuse |
  2. TD

    What happened to "government of the people, by the people, for the people, shall not perish from the earth"? Now it's THREE people on a court governing us? Sounds like dictatorial regimes are taking CA by storm.
    What happens if the same three judges say gay parents can not have children? Wrong I know, but what's your solution to that? the masters have ruled!!! no voting for you to change it.

    February 8, 2012 at 1:45 pm | Report abuse |
    • Bruce

      What confuses you about the nature of a consti.tutional republic, founded not upon the actions of a direct democracy (the referendum) but rather on a representative legislature kept in check by the executive and judicial branches of government?

      February 8, 2012 at 1:50 pm | Report abuse |
    • JJC

      This is not a democracy. The people cannot vote to kill someone for instance. Paraphrasing a founding father, "Why would I trade one tyrant over there for many tyrants over here". Basically, democracy is mob rule by the majority and it can be an ugly thing. We have rights that cannot be voted on.

      February 8, 2012 at 2:00 pm | Report abuse |
  3. ralph

    It's a sad day for the voice of the people.

    February 8, 2012 at 1:46 pm | Report abuse |
    • dduncan

      No, it's a horrible day for bigots like yourself. intelligent voters in CA are very very happy.

      February 8, 2012 at 2:22 pm | Report abuse |
    • Carawaigh

      Are you familiar with the concept of tyranny of the majority?

      February 8, 2012 at 3:12 pm | Report abuse |
    • Krog

      What makes you an intelligent voter? I can see by your penchant for insults that you are as big a bigot as those you complain about.

      February 10, 2012 at 2:57 pm | Report abuse |
  4. DonKnott

    These comments about "what someone does is their own business" are idiotic. We don't live in isolation. We live in a society where actions and behavior affect those around us.

    February 8, 2012 at 1:48 pm | Report abuse |
    • reason

      Please explain how gay marriage affects you. I have never heard a rational answer to this question.

      February 8, 2012 at 1:57 pm | Report abuse |
    • Bruce

      How gay marriage affects me is that now that it's legal here I have more weddings to attend and more wedding presents to buy.

      From that perspective, I'd rather have fewer weddings to attend than more weddings to attend, because I don't like weddings all that much...

      February 8, 2012 at 2:03 pm | Report abuse |
    • reason

      Please explain how gay marriage affects you. I have never heard a rational answer to this question.

      If all gay couples were to marry tomorrow and the news never reported it, how would you day change?

      February 8, 2012 at 2:25 pm | Report abuse |
    • banasy©

      It doesn't.
      This is his personal bias.
      You will never get an answer.
      The only way that a gay marriage would affect ME in any way, shape, or form, is if they were doing the 'nasty' on my front lawn...and I wouldn't like it if a straight couple were doing it there, either!

      February 8, 2012 at 2:44 pm | Report abuse |
  5. stormy miller

    prop 8 should have never gone to a vote of the people!!! civil rights is not a vote of the people. all of you anti-gay fools are going to have to realize that gay couples are going to have the right to marry in america and they are going to have the same rights that all americans have. america will finally join the rest of the intelligent world!!!

    February 8, 2012 at 1:48 pm | Report abuse |
  6. DonKnott

    Why do California residents even bother to vote?

    February 8, 2012 at 1:52 pm | Report abuse |
    • Bruce

      You do understand the fundamental difference between voting for someone to represent you in government (a republic) and voting directly on a law through a referendum (a democracy), right?

      February 8, 2012 at 1:56 pm | Report abuse |
    • DonKnott

      Bruce: Like I said: Why do Californians even bother to vote? The judges were selected, not voted into office. You do understand that fundamental point, don't you?

      February 8, 2012 at 2:12 pm | Report abuse |
    • Bruce

      The judges were selected by the people you voted into office. That's how these things work.

      February 8, 2012 at 2:13 pm | Report abuse |
    • dduncan

      we are a Republic. educate yourself about what that means. you would not like it if the intelligent people in this country voted to not allow stupid people to marry. you would be in that group dummy.

      February 8, 2012 at 2:20 pm | Report abuse |
    • Gumbo Jim

      Don is still sour about Three's Company getting cancelled. Hence his testy response to your logical post...

      February 8, 2012 at 2:21 pm | Report abuse |
  7. sjenner

    I believe the 9th Circuit's opinion, if it stands, has much in it that can be built upon in later litigation. The grounds are very narrow, true enough. But the text and themes of the opinion are broader, and would begin the first substantive move in case law towards carving out LGBT as a suspect class. This opinion avoided doing so in this case because it didn't need to (as opposed to the tenor of earlier opinions by the Supreme Court and other courts that more aggressively implied no suspect classification was justified). The next 10 years will be interesting.

    February 8, 2012 at 2:11 pm | Report abuse |
  8. Bill the Cat

    Baker v. Nelson
    Citizens for Equal Protection v. Bruning
    Wilson v. Ake

    controlling precedent in the US judicial system prevents lower courts from coming to a contrary conclusion when presented with the precise issues the Court necessarily considered in dismissing the case.

    Guess the 9th Circus missed that memo...

    February 8, 2012 at 2:20 pm | Report abuse |
    • Bruce

      Baker v. Nelson didn't involve a referendum, so it is not precise. Also, the 9th circuit appeals court is not inferior to the Minnesota State Supreme Court.

      Citizens v Bruning involved the 8th circuit, which is not superior to the 9th circuit. They are equals only regionally-distinguished so the 9th circuit is not "lower" than the deciding court in that case.

      Wilson v. Ake didn't involve a state law but a federal law (DOMA). Not precise at all.

      Guess you missed that memo...

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

      He's a cat, Bruce. He can't read and has been hopped up on catnip for the past 2 weeks with very little sleep. I am amazed he can hammer away on a keyboard, though. Must have been declawed years ago...

      February 8, 2012 at 2:47 pm | Report abuse |
    • Carawaigh

      Gumbo Jim: Nice shot!

      February 8, 2012 at 3:14 pm | Report abuse |
  9. Noel

    What does it mean? It means another example of the government interfering with the mandate of the voters. It means another encroachment by the minority against the majority...and ultimately it means that law isn't law...it's all up for interpretation by whichever liberal or conservative court happens to be in place.

    It means...this isn't America anymore, it's a playground populated by special interests, big money and no morality.

    February 8, 2012 at 2:33 pm | Report abuse |
    • Nah

      noel: "What does it mean? It means another example of the government interfering with the mandate of the voters."

      Sorry, but the voters can't vote any law into existence. Take Obama's healthcare reform; I presume you want the courts to strike it down as invalid, regardless of the amount of Senators and Representatives voted for it, right?

      February 8, 2012 at 2:36 pm | Report abuse |
    • Bruce

      Actually, the law is firmly law, and it's the law that put courts in place to trump referendums like this.

      It's called the Consti.tution of the United States of America. Read it some time when you get a chance. Take a civics class and learn the difference between direct democracy and a representative democracy, and about the checks and balances between the legislative, the judicial, and the executive branches of government.

      February 8, 2012 at 2:36 pm | Report abuse |
    • Blake

      Should women's suffrage have been determined solely by the voters (who were by definition, exclusively men)? Should inter-racial marriage bans have remained in plan in southern states because those voters didn't like the idea? Grow a brain...

      February 8, 2012 at 2:42 pm | Report abuse |
    • Ed

      This is precisely America and how it works. Take a civics class.

      February 8, 2012 at 2:47 pm | Report abuse |
    • yeahalright

      Civil & human rights don't get trumped by majority rule, or anything else for that matter.

      February 8, 2012 at 3:16 pm | Report abuse |

      People's basic human rights are not the proper subject matter for a popular vote.

      February 8, 2012 at 3:31 pm | Report abuse |
    • Nah

      yeah: "Civil & human rights don't get trumped by majority rule, or anything else for that matter."

      Please stop assuming, without proving, that marriage is a right.

      It makes you look dogmatic and foolish. Not to mention, it also makes you it look like you've never thought the issue through before.

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

      Nah – 10th Amendment, for starters.

      February 8, 2012 at 3:48 pm | Report abuse |
    • Krestov

      @Nah perhaps you should take your own advice on the right of marriage:

      The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia (1967), where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority:

      The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men (sic).

      February 8, 2012 at 3:54 pm | Report abuse |
    • Swell

      Actually, the Founding Fathers intended for the courts to be used in *exactly* this way – to overturn the will of the majority when it impinged on the rights of the minority. You should try reading the Federalist Papers, Benjamin Franklin's autobiography, and Thomas Jefferson's letters someday. It will give you some interesting insights into what it means to be an American and how poorly today's politicians are doing.

      February 8, 2012 at 7:17 pm | Report abuse |
    • wanderingflowers

      I agree with you. well said.

      February 8, 2012 at 10:11 pm | Report abuse |
  10. Talmonis

    Can we please pass a law requiring all "christians" to submit to Sharia? I think the turnabout will be quite amusing. Oh, and tax their churches for using their income to buy political policy.

    February 8, 2012 at 2:33 pm | Report abuse |
    • Talmonis

      Oh wait, what's that? You don't LIKE being treated like that? I thought you "people" taught the golden rule? You know, treat others as you would like to be treated? I would think that's exactly what you want isn't it?

      February 8, 2012 at 2:35 pm | Report abuse |
    • Bruce

      Golden Rule: BOOOOOOO!

      Yes, I went there! I boo'd the Golden Rule! 😛

      February 8, 2012 at 2:37 pm | Report abuse |
    • Nah

      tal: "Can we please pass a law requiring all "christians" to submit to Sharia? I think the turnabout will be quite amusing. Oh, and tax their churches for using their income to buy political policy."

      Nah. All that's required for a law to be valid is that it comport with the const.itution. It doesn't matter that the legislators wrote or voted for the law because of their Christian or Muslim morality. Hence, laws can be based on any religion so long as they're procedurally and substantively valid.

      February 8, 2012 at 2:40 pm | Report abuse |
    • BucksFan

      Not all Christians are anti-gay. Try not countering bigotry with bigotry.

      February 8, 2012 at 2:51 pm | Report abuse |
  11. Dino S.

    Great news, a victory for equality and liberty and justice.

    February 8, 2012 at 2:39 pm | Report abuse |
    • Nah

      Nah, no equality argument here.

      Think about it a little.

      February 8, 2012 at 2:49 pm | Report abuse |
    • yeahalright

      Why is there no equality argument here Nah?

      February 8, 2012 at 3:56 pm | Report abuse |
    • saopaco

      Exactly so- Justice.

      February 8, 2012 at 5:43 pm | Report abuse |
  12. nolazy

    let them marry, gay people has the right to be miserable too, just like any other ordinary married couple.

    February 8, 2012 at 2:50 pm | Report abuse |
    • juan carlos

      As I said in my own response which was along the same lines as yours, even then this world is not going to become a utopia of sorts for them.

      February 8, 2012 at 3:18 pm | Report abuse |
    • yeahalright

      Hah 🙂 Yeah some may end up regretting this victory. I've been jealous of gays with their built-in excuse for not wanting to marry.

      February 8, 2012 at 3:19 pm | Report abuse |
  13. EdwardM

    This is a natural part of the due process we enjoy in this country. The problem with allowing a popular vote to dictate or make laws is that a popular vote can be skewed and influenced by rhetoric, misinformation and outright lies. A popular vote is not necessarily an objective vote that takes all facets of a situation into consideration. A court is able to do this, which is why a judge is supposed to be impartial. The founding fathers worked very hard to develop a system of government that would not be tyrannical. A popular vote can be just as tyrannical as a dictator.

    February 8, 2012 at 2:50 pm | Report abuse |
    • fortyfive

      Since you are so objective, I would think you would be in favor of ensuring any gay marriage laws would make exceptions for not only clergy but wedding planners, photographers, private adoption agencies, and marriage counselors, just to ensure that no one is forced to personally participate in something they oppose by conscience. Am I right? Remember you don't want to put anyone under tyranny. Liberals with an agenda can be just as tyrannical as a dictator too. Freedom goes both ways. If you want it for you, give it for those who disagree. Tell this to the Democrats in the WA legislature who refused to add these protections to their gay marriage bill. This is one reason there is so much opposition because they are not taking all facets into consideration.

      February 8, 2012 at 5:05 pm | Report abuse |
    • yeahalright

      Hey forty, so you mean to tell me that in Washington state Clergy, wedding planners, and photographers are all forced to perform gay marriages? News to me. And if an adoption agency would rather a child go parent-less than be adopted by two gay people, they shouldn't be in the adoption business because frankly that makes them child abusers. You'd be cool with them refusing a mixed race couple? Or a couple with a different religion? You know, because it's just their conscience.

      February 8, 2012 at 7:16 pm | Report abuse |
  14. juan carlos

    Ok so folks.may not agree with the idea, but if you think of it all, maybe these people should have these rights just as strait people do. They should have the right to be just as miserable and disfuncional and be a part of this glorified trend of infidelity and domestic violence. Let's put it this way, even if the courts give the last word in their favor, it's not going to mean that from there on out they'll be living some sort of utopia if that's what they think.

    February 8, 2012 at 2:57 pm | Report abuse |
  15. Patriot

    These perverts have more rights than normal people

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

      Care to list them?

      February 8, 2012 at 3:22 pm | Report abuse |
    • saopaco

      You sir are a grade-A nimrod.

      February 8, 2012 at 5:44 pm | Report abuse |
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