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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    As emotional as this issue is right now, in a generation our children will look back at us and say, "What was the big deal?"

    February 7, 2012 at 4:37 pm | Report abuse |
    • Tyler

      I think future generations will look back and say "why the hell were you even trying to ban it in the first place," much like how the youth today look back at the last major civil rights battle.

      February 7, 2012 at 4:44 pm | Report abuse |
    • Sam A.

      Scott, they're saying that NOW.

      February 7, 2012 at 5:06 pm | Report abuse |
    • BradinOC

      Our children will look back and think that, but the children of "Christians" will be raised to hate gay people and will probably find some way to discriminate against the children of gay couples, just watch. Unfortunately "Christians" sometimes have the hardest time following "God's Word" which says that God is the only judge

      February 7, 2012 at 5:07 pm | Report abuse |
  2. Truthhurts

    Until , they ask their moms, "Who's my daddy".

    February 7, 2012 at 4:39 pm | Report abuse |
    • Mavent

      ...given that there's only one way for a woman to get pregnant, straight or gay, it ought to be an easy enough question to answer. In fact, it ought to be EASIER to answer for a gay couple than for a lot of Straight people.

      February 7, 2012 at 4:42 pm | Report abuse |
    • Truth


      Isn't that the damn truth. Cause I know I just love all them single mom welfare wh*res eating up my tax money on a free ride cause they can spread there legs.

      February 7, 2012 at 4:44 pm | Report abuse |
    • gl

      Welfare mom, don't you mean 'welfare queen'? The made up term by Reagan to stigmatise all the women on Welfare. I guess you missed it but since The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, able bodied people (that includes women) can not stay on welfare indefinately. Specifically the law placed a time limit for benefits supported by federal funds of no more than two consecutive years and no more than a collective total of five years over a lifetime

      February 7, 2012 at 6:09 pm | Report abuse |
    • Tina

      Have you ever watched Maury? Lots of DNA testing going on there, for children of straight women, looking for the bio dad...

      February 8, 2012 at 4:20 pm | Report abuse |
  3. Truth

    70 years ago we had seperation of whites and blacks... now were as one. 120 years ago we owned people for crying out loud. During both these times, we were right, and everyone was wrong based on people with money and power. Fact is, its not right.. and we see that now. So apply the same knowledge from what we learned to this; its not right for one person to choose and say whom another can love and share a life with. Simple really.

    February 7, 2012 at 4:41 pm | Report abuse |
    • Dirk

      Your posting is complete nonsense!!!! Being gay is not like being African American. To be considered gay you actually have to engage in homosexual activity. You can feel gay all day but it doesn't mean a thing until you act on it so stop your ridiculous comparsion because there is none.

      February 8, 2012 at 5:29 am | Report abuse |
    • Jrod

      @Dirk, tell that to the pre teen gay kids who have yet to "act on it" but were taunted into suicide. I'm sure gays in Jamaica and Iran who are being executed would also disagree with you.

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

      And lets not forget about the thousands of gays that were exterminated during the Holocaust

      February 8, 2012 at 10:01 am | Report abuse |
    • Lookingatsky

      Dirk, what about Jews and Catholics and Mormans? They only got discriminated against when they acted like Jews or Catholics or Mormans by going to services, etc.

      February 8, 2012 at 10:37 am | Report abuse |
  4. Jon in Rochester, NY

    Congratulations CA ! It will be a happy day when all 50 states recognize marriage equality for all!

    February 7, 2012 at 4:43 pm | Report abuse |
  5. maine liberal

    I have had 6 GOP robo-calls in the last day. the Call support marriage between a man and a woman.
    with a number to call for those candidates that support the position

    February 7, 2012 at 4:49 pm | Report abuse |
  6. Truthhurts

    Papa Murphey's should open a take n' bake sperm bank.

    February 7, 2012 at 4:50 pm | Report abuse |
  7. AndreaMN

    everyday I wake up and thank the universe that I was born to loving parents that dont demonize gay people; allowing me to feel a little bit comfortable when coming out in high school... rather than scared to death like so many people I know who were born to bigots like you Truthhurts.

    February 7, 2012 at 4:53 pm | Report abuse |
    • JLGinCali

      I'm straight but I'm also happy that your parents were good and brave enough to help to break the cycle of bigotry in your family. Now if only that could happen a little more often...

      February 7, 2012 at 5:10 pm | Report abuse |
    • San

      I'm happy for you, too, Andrea. Sorry about these ugly Santorum wins, though.

      February 7, 2012 at 11:13 pm | Report abuse |
  8. Benjamin J. Douthett

    Not surprised. The only argument the Prop 8 supporters really had was "OMG teh gheys r icky!"

    February 7, 2012 at 4:54 pm | Report abuse |
    • AndreaMN

      every argument I have ever heard supporting Prop 8 or measures like it, all have easy rebutals... and I think somewhere deep down... they know it.

      February 7, 2012 at 4:56 pm | Report abuse |
  9. David B.

    It was the right ruling in the right place at the right time. Bravo!

    February 7, 2012 at 4:55 pm | Report abuse |
  10. JusDav

    So, next I will be allowed to marry my brother to save on inheritance taxes, etc.
    If you want to live together, do it.... if you wish to share assets, do that as well.
    Put each other in your wills… but you cannot be "married".
    IMHO, marriage should be reconsidered for a man and woman as well.
    It is only a civil contract. An archaic method of "proving" commitment, which doesn’t work so well now a day anyway. If you research marriage, it is for a man to prove ownership of the woman… and is that what we want in todays “educated” society?


    February 7, 2012 at 4:57 pm | Report abuse |
    • Steve

      The ruling had nothing to do with what you are saying. Are you that afraid that you have to make stuff up?

      February 7, 2012 at 5:48 pm | Report abuse |
  11. Sara

    Gay marriage takes rights away from children. Every child has the right to a father and mother. This fundamental right was taken away thanks to our liberal court today.

    February 7, 2012 at 4:59 pm | Report abuse |
    • AndreaMN

      single parent families ?

      February 7, 2012 at 5:02 pm | Report abuse |
    • CNNuthin

      LOL. Wait, are you being serious?

      February 7, 2012 at 5:03 pm | Report abuse |
    • Quinn

      LOL - You're a scream! Ever thought of taking your act on he road?

      February 7, 2012 at 5:11 pm | Report abuse |
    • JLGinCali

      That's, um, kinda crazy Sara.

      February 7, 2012 at 5:11 pm | Report abuse |
    • Floyd MacGillicutty

      Oh my, that is perhaps the stupidest thing I have heard today. Thanks for the laugh, Sara. My guess is, you have no clue why that's so humorous.

      February 7, 2012 at 5:14 pm | Report abuse |
    • Maleko

      Really kinda dumb comment Sara.

      February 7, 2012 at 5:22 pm | Report abuse |
    • Flappy

      That's right Sara. Gay people shouldn't be allowed to breed..... ohhhh wait. Nevermind.

      February 7, 2012 at 6:49 pm | Report abuse |
    • The Masked Commentor

      So does that mean that California will now try to ban divorce? Y'know, since every child has a right to a mom and a dad? Or maybe they will take away kids from the widows of those killed in combat? Again, because they need a mom and a dad?

      Sara – think behore you open you mouth!

      February 7, 2012 at 10:50 pm | Report abuse |
    • Mark

      Probably the silliest comment I have read so far. I hope more people will chime in with this nonsense so we can see hopefully better understand the ignorance and bigotry we are dealing with.

      February 7, 2012 at 11:44 pm | Report abuse |
    • Seamus McDermott

      Now, don't freak out when I tell you this, Sara, but every child ever born has both a mother and a father.
      Even you-know-who from Nazareth. That's right. No fairy tales anymore, Sara. All children have fathers and mothers, even those with gay parents and dead parents.
      You may wish to discuss this with your doctor if the concept eludes you.

      February 8, 2012 at 12:35 am | Report abuse |
    • NotTrue

      Don't worry Sara, you're right in what you are trying to say. I would bet a very small fraction of the people responding to you actually have kids, currently run a large household with multiple dependents, or whose daily routine revolves around picking kids up from school, making breakfast for a family, running off to a full-time job, driving kids to extracurricular activities, rushing home to get dinner on the table, staying up late to do science projects (if so they wouldn't have time or care to post on a CNN blog). In other words, the people responding to you are likely part of the singles, dating/unmarried, young professional, student, hipster, self serving urban demographic that has a loud opinion about marriage and family values, what a child has a right to or not, but have no idea the kind of sacrifice parents make on behalf of their children and community everyday (while they spend their days doing whatever they goddamn please). It takes a male and female to breed and create offspring and properly raise that offspring (nature has made this decision for us). If something goes awry and the biological parent(s) are not available other parents can emulate the conception environment by providing a similar one. Sara speaks of a child's birth right to a parental configuration equivalent to that which created them. Since a same sex union could not have conceived the child it seems unlawful to force a child to be raised in a situation that could not have happened naturally or against what nature intended. If you want to be gay or are gay by genetics not choice..... then just be gay, and enjoy your partners company, travel, work, play, go to parties, have fun you are accepted now by society so dont worry. You can kiss and hug and grab ass in public without consequence while families tow the line doing the hard work raising our future generations. Stop the attack on marriage from your city centers and leave the hard self-sacrificing job of parenting to natures choice.....a Man and a Woman.

      February 8, 2012 at 2:39 am | Report abuse |
    • Quite Really

      NotTrue & Sara, I suppose we should strip the kids from all single parents, divourced parents, orphanages, foster care homes, as well as gay couples and force married men and women to raise these kids because you believe all children MUST live with a man and a woman only. How about single people who want to adopt? Take their rights away too?

      Yes, I'm sure that will be doing the world a BIG favor.

      February 8, 2012 at 1:51 pm | Report abuse |
    • Drew Loves Shoes

      @Sara...Did you work on Bachmann's campaign?

      February 8, 2012 at 3:32 pm | Report abuse |
  12. The Prince of Common Sense

    Oh great, so "Aunt Sheila" is now "married" to my mommy and now I have to call her "DAD?!?"

    What in the world?!?

    What's next: Pass legislation so that I can marry my pet dog, Sasha?!?

    (Shaking my head)....

    February 7, 2012 at 5:05 pm | Report abuse |
    • Quinn

      You seem to be eager to marry your dog, but that hasn't been addressed quite yet. Keep hope alive.

      February 7, 2012 at 5:12 pm | Report abuse |
    • Sam A.

      Gee, didn't know your dog could legally form conscious will and can sign a contract. Then again, I'd bet your dog wouldn't WANT to marry someone as ignorant as you.

      February 7, 2012 at 5:13 pm | Report abuse |
    • JLGinCali

      No, you can call them both Mom. That is, unless one of them likes to walk around the house with a strap-on. Maybe she would be more comfortable with "Dad" in that case.

      February 7, 2012 at 5:13 pm | Report abuse |
    • AndreaMN

      who dates someone and has their kids call them "aunt" or "uncle".... no straight or gay people that I know.... and usually two mom's would still both be called... MOM... confusion avoided.

      February 7, 2012 at 5:13 pm | Report abuse |
    • John

      To the Prince of Common Sense, I talked to Sasha and she's sick of living in sin with you. Do the right thing.

      February 7, 2012 at 5:21 pm | Report abuse |
    • Drew Loves Shoes

      @Prince...Next time you have a thought...just let it go..

      February 8, 2012 at 3:40 pm | Report abuse |
  13. Ed Peters

    Have to admit it, Jeffrey Toobin really made sense with this article.. tks..

    February 7, 2012 at 5:07 pm | Report abuse |
  14. people have no hearts....

    regular marriage and gay marriage are like bikini tops and bras, the exact same thing, except only one is allowed in public.

    February 7, 2012 at 5:12 pm | Report abuse |
    • AndreaMN

      facebook status NOW! thanks

      February 7, 2012 at 5:14 pm | Report abuse |
    • Mike

      Best comment yet !

      February 7, 2012 at 6:55 pm | Report abuse |
    • af

      Great comment and so true.

      February 8, 2012 at 1:28 pm | Report abuse |
  15. Truthhurts

    Ashes, ashes, we all fall down...

    February 7, 2012 at 5:14 pm | Report abuse |
    • Talmonis

      You know what'll be fun? When we get to start taxing your churches for using their money to buy political influence & make laws against the people to suit your silly made up whims. My god, it will be beautiful.

      February 8, 2012 at 1:48 pm | Report abuse |
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16