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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    This is ridiculous. Courts can operate above people's will. Can I marry my dog, my sister? Can I smoke drugs? Can I have three wives? Shame on those judges. It is a sad day for those majority in California that voted for Prop 8.

    February 7, 2012 at 5:15 pm | Report abuse |
    • Factors

      Wouldn't you think our court system would have better things to do – than deal with this gay nonsense?

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

      In the past, the courts have had to determine if Blacks had the right to citizenship, which you would have thought would be a given. It also had to decide if whites had the right to marry a black person if they wanted to. So, I wouldn't act like this is frivolous like marrying your dog.

      February 7, 2012 at 5:29 pm | Report abuse |
    • Darkanine

      Go @%^# yourself. The point of courts is to stop idiots like you from taking away the rights of other citizens. You have the right to believe whatever you want about gays, pedophiles, etc. but you do not have the right to vote down the rights of others. You do not live in the 50s anymore and, for your information, God has a special place in hell for heretics like you who wish to take away the happiness and rights of your fellow man.

      February 7, 2012 at 5:29 pm | Report abuse |
    • Erik

      Shame on you for our narrow viewpoints. If you're married to the person you love, quit taking state and federal beneifts solely because you're married. It's fundamentally unfair that my tax dollars are given to you based on who you love, but it doesn't work the other way around for a gay couple. I don't care if a church doesn't want to bless the union because that's their business. However, a government that isn't supporsed to endorse any religion, should grant civil unions to two consenting adults that want one. Civil unions are the only thing that states should issue whether gay or straight.

      February 7, 2012 at 5:29 pm | Report abuse |
    • jon

      Yes, please do marry your dog. Are you nuts or what??

      February 7, 2012 at 5:29 pm | Report abuse |
    • Guest

      Your dog is not a consenting adult. We're not talking about inbreeding or bestiality. We're talking about two consenting adults who love each other getting married. Why do you care??

      February 7, 2012 at 5:34 pm | Report abuse |
    • Patrick

      You can smoke drugs, ie cigarettes. What a hilarious response. Of course there are lots of other drugs that you could legally smoke, but they just wouldn't work very well.

      February 7, 2012 at 5:35 pm | Report abuse |
    • Married to a Dog

      I bet your wife is a dog... anyone who would refuse to grant basic human rights to every human deserves it. Go smoke some drugs and screw a cat you narrow-minded loser.

      February 7, 2012 at 5:37 pm | Report abuse |
    • Ron

      Of course the courts can override the will of the people. If the majority suddenly wanted to make the hunting of black people legal the courts would strike that down. If the people suddenly wanted to make being a Republican illegal, the courts would strike that down too. Sort of what they are there for. Otherwise it would just be majority rule all the time, no matter what, which is not always a good thing.

      February 7, 2012 at 5:39 pm | Report abuse |
    • Hugo

      Courts frequently operate against popular sovreignty. Without that concept, we have no Bill of Rights. No freedom of speech. No right to bear arms. No right to vote... (Think about it. Hope you head doesn't explode.)

      February 7, 2012 at 5:41 pm | Report abuse |
    • Hugo

      Factors, what are the courts supposed to when someone files a lawsuit?

      February 7, 2012 at 5:42 pm | Report abuse |
    • rock woman

      Darkanine, you said it well in your reply...but I would ask you and others responding here to Golden Young (and others) to eliminate the verbal abuse which (a) overshadows your real message and (b) clearly shows you not to be any more tolerant than the people you are criticizing.

      February 7, 2012 at 5:46 pm | Report abuse |
    • truth

      It wouldn't even be a majority today. A much higher % of older people are bigots than younger people. New younger people can now vote and some of the older bigots that voted for this have died.

      February 7, 2012 at 5:53 pm | Report abuse |
    • RTfromIL

      No, you cannot marry your dog because your dog cannot give consent and is not human.

      Yes, you can marry your sister if she agrees.

      February 7, 2012 at 6:03 pm | Report abuse |
    • BlackLikeMe

      Why don't we leave the comparisons\analogies of blacks out of this .... Totally different fight!

      February 7, 2012 at 8:34 pm | Report abuse |
    • America47000

      Just because you get a judge to create a right for you doesn't mean you should actually have that right.

      February 7, 2012 at 10:20 pm | Report abuse |
    • Drew Loves Shoes

      go smoke the end of a shot gun..

      February 8, 2012 at 3:43 pm | Report abuse |
  2. Tricia

    Honestly people, who cares who marries??? In an era of time where marriage is becoming completely obselete, why are we so against gays getting married??? Shoot, allow them to be as miserable as the rest of america post "I do!"

    February 7, 2012 at 5:16 pm | Report abuse |
    • krippendorf

      The GOP cares, of course, because they believe that it's acceptable for governments to legislate the personal lives of gay, females, atheist, and ethnic minorities. Plus, without the right-wing nutjobs, support for the party would diminish even more.

      February 7, 2012 at 5:27 pm | Report abuse |
    • Chadder

      Amen, honey, amen.

      February 7, 2012 at 5:27 pm | Report abuse |
  3. T Crony

    What a bunch of crap....did the people not speak?

    February 7, 2012 at 5:17 pm | Report abuse |
    • Steve

      Yes they do. You just don't like the message. How does their ruling affect you?

      February 7, 2012 at 5:34 pm | Report abuse |
    • Dave1955

      That's the whole point of the ruling. The majority does not get to vote on the rights of the minority.

      February 7, 2012 at 5:36 pm | Report abuse |
    • Common Sense

      So you think that if Californians vote to discriminate against a minority that is acceptable? I suppose that might seem OK to you but try to put yourself in the place of the minority group.

      February 7, 2012 at 5:38 pm | Report abuse |
    • Hugo

      Do you want your Constuttional rights revoked? Really? No freedom of speech. No freedom to bear arms. No guaranteed right to vote. Really? Did you actually think about it?

      February 7, 2012 at 5:44 pm | Report abuse |
    • AmesIA

      Don't confuse an backward mob swayed by millions of dollars of misleading advertising with the people speaking.

      February 7, 2012 at 5:49 pm | Report abuse |
  4. Whitney Weddell

    This is a great day for California, and for the belief in human rights and dignity.

    February 7, 2012 at 5:20 pm | Report abuse |
  5. Truthhurts

    Liberals abort their child because they had no choice, they are born gay and therefore had no choice. Why do they call themselves "Pro Choice" again?

    February 7, 2012 at 5:31 pm | Report abuse |
    • Steve

      There is no logic to your sentence. Are you saying that all Liberals would have abortions and all Conservatives would not? Both suppositions are false.

      February 7, 2012 at 5:38 pm | Report abuse |
    • Common Sense

      If only you had a idea what the truth is.

      February 7, 2012 at 5:39 pm | Report abuse |
    • splainin

      So explain why they call themsleves pro-life when they have no interest in road safety, gun safety, drug safety etc not to mention the 1000s of children who die of hunger and lack of clean water EVERY DAY.

      February 7, 2012 at 5:42 pm | Report abuse |
    • Flappy

      Conservatives oppose gun control and support the death penalty. Remind me why they are pro life again?

      February 7, 2012 at 6:59 pm | Report abuse |
    • America47000

      Leftists are perfectly pro-choice, unless you are talking about the economy, where people have to buy everything the government says.

      February 7, 2012 at 10:21 pm | Report abuse |
  6. jon

    Is there ANY chance that people can just leave other people ALONE in their lives??? Apparently not. Life is short – live it as you wish.

    February 7, 2012 at 5:32 pm | Report abuse |
  7. ThermalJockey

    My marriage is not threatened by the marriage of my gay neighbors. Why is yours?

    February 7, 2012 at 5:33 pm | Report abuse |
  8. Mike P.

    What's horrible about this ruling is that it was partly based in the notion that once you extend rights to a group, it's not so easy to take them away - but in this case the original extension of rights was done not by the people but by the judiciary. So a bunch of judges, not the people of California, decided that gay couples have the right to marry in California, and then when the people of California took action against that, another group of judges have now said, "Uh uh, you can't just give it and then take it away" - but the people themselves never gave it! It was judges all down the line!

    February 7, 2012 at 5:33 pm | Report abuse |
    • Todd in DC

      In 23 states, the people never gave blacks and whites the right to marry each other. What's your point?

      February 7, 2012 at 5:40 pm | Report abuse |
    • Matt

      It wasn't until 1992 that the majority of America supported interracial marriage -yeah, you're right... we should have waited until 1992.

      February 7, 2012 at 6:03 pm | Report abuse |
    • Josh

      The reason the judiciary exists to to right the excesses of a bigotted majority. IT looks out for the rights of ALL Americans. Its also why a Nazi can scream at the top of his lungs that blacks and Jews should go to hell. You don't have to like it, but the reason the Founding Fathers wrote it (The entire Third article and the First Amendment) into the Constitution is that they hoped those in the government would be smarter than those who would complain about it. This country has never been a direct democracy because the Founding Fathers feared the power of the mob to do really stupid things like pick on minority groups (Yes, homosexuals are a minority. Do most of the people you know "go gay?"). So they created controls to curb the excesses of -isms as much as possible. It's misinformed to complain about a judiciary upholding the highest ideals of our Constitution, which by the way is a SECULAR document, not a Christian document.

      February 8, 2012 at 12:22 am | Report abuse |
  9. Just say no to conservatives

    What it means is people are fed up with extremist, right wing, hate peddling, religion based BS and are willing to litigate it to conclusion. What it also means is that all of the taliban inspired extremist nut jobs (the republican party and their teabagger bosses) can't deal with judicial outcomes then they should GET THE HELLL OUT of the country.

    February 7, 2012 at 5:35 pm | Report abuse |
  10. Republicans hate everyone unlike them (non-hillbillies)

    So many of the people in CA who voted for Prop 8 are black and Mexican. Two groups who should understand what prejudice is and yet they do not stand up for gays, who are in exactly the same situation as they were (and really still are).

    February 7, 2012 at 5:40 pm | Report abuse |
  11. Truthhurts

    Religion = Rights for all, including children
    Liberal rights = Me, Myself and I

    Equality = Old indian word meaning " Really rich lawyers"

    February 7, 2012 at 5:40 pm | Report abuse |
    • Steve

      You speak with forked tongue.

      February 7, 2012 at 5:43 pm | Report abuse |
    • Common Sense

      You have no idea what the truth is.

      February 7, 2012 at 5:45 pm | Report abuse |
    • Republicans hate everyone unlike them (non-hillbillies)

      Oh Billy-Bob, you want things to return to them good ole days, when straight, old, white, Protestant men ruled everything and the rest just shut up and knew their place. Sorry this is no longer 1940. Love it or leave it, THE USA!

      February 7, 2012 at 5:46 pm | Report abuse |
  12. mr peeples

    I'm done voting.

    February 7, 2012 at 5:42 pm | Report abuse |
  13. Bruce

    I read so of those remarks that people posted, and I am not disappointed at them, but utterly taken back that they think that way. We are suppose to be the people who stood up for all the rights of every man, woman and children, but are not. What is so wrong for someone who is truly in love not to be able to married the one they love. We are not talking about marring someone pets as some have suggested, but a love that goes deeper than one can believe.

    February 7, 2012 at 5:43 pm | Report abuse |
  14. Republicans hate everyone unlike them (non-hillbillies)

    In 1950 when "I Love Lucy" debuted on TV there was a HUGE uproar because they were a "mixed marriage". Today we see nothing of it, and in another few years gay marriages will be as common as straight divorce.

    February 7, 2012 at 5:44 pm | Report abuse |
  15. Republicans hate everyone unlike them (non-hillbillies)

    Oh Jethro, you want things to return to them good ole days, when straight, old, white, Protestant men ruled everything and the rest just shut up and knew their place. Sorry this is no longer 1940. Love it or leave it, THE USA!

    February 7, 2012 at 5:51 pm | Report abuse |
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