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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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. Dan is RIGHT bigots can DIE

    It took the Federal Government to abolish slavery.
    It took the Federal Government to give women the right to vote.
    It took the Federal Government to force the bigots to treat blacks with equal rights.
    It is taking the Federal Government to stop the discrimination of gays based on religious malarkey.

    February 7, 2012 at 5:54 pm | Report abuse |
    • Mary

      So your saying Gods word is "malarkey" Cause that is why those who don't agree with same s ex marriage are against it. Not because of bigotry.

      February 7, 2012 at 6:27 pm | Report abuse |
    • Benjamin J. Douthett

      Well, the Bible also says that eating shrimp is an "abomination", as is a woman leaving the house during her period.

      February 7, 2012 at 6:32 pm | Report abuse |
    • v3rlon

      The issue of slavery was never a popular vote. I doubt that slaver would have won on a popular vote in 1863.
      The issue of women's voting was never brought to a popular vote. Same story in 1920.
      The issue of civil rights for blacks was more a case of enforcing laws that we had agreed to live by, and ending some lame work-arounds created by a small minority in power.

      The issue I have is that the popular vote, not corrupt legislators, is being overruled. I'd rather see the whole thing given another round at the voting booth.

      February 8, 2012 at 1:25 am | Report abuse |
    • Feed Your Head

      I spoke with God about it.
      He said "I didnt write that book".
      It was written by men.
      Thats good enough for me.


      So your saying Gods word is "malarkey" Cause that is why those who don't agree with same s ex marriage are against it. Not because of bigotry.

      February 8, 2012 at 8:16 am | Report abuse |
  2. Truthhurts

    At least Obama knows who his father and mother are.

    February 7, 2012 at 5:55 pm | Report abuse |
  3. truth

    Prop 8 wouldn't pass today if voted on again. 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. The statistics don't lie. Even if this hateful Prop were to stand it wouldn't be long before things changed for the better.

    February 7, 2012 at 5:55 pm | Report abuse |
    • Jim in San Mateo

      The way a person votes on a Proposition like Prop 8 is directly correlated to the number of people they know personally who would be affected. Younger persons are several times more likely to have a family member who is gay or know a close friend who is gay than an older person.

      February 7, 2012 at 6:17 pm | Report abuse |
    • truth

      Good post Jim, that is spot on.

      February 7, 2012 at 6:27 pm | Report abuse |
  4. justin

    laws are simply one persons way to comntrol another. Once we realize that and stop thinking of law as ...'law' then these things really do not matter. Treat all law like traffic signs and be done with it.

    February 7, 2012 at 5:57 pm | Report abuse |
  5. Risky

    Quite a few Rick Santorums in this crowd of posters.

    February 7, 2012 at 5:57 pm | Report abuse |
    • Feed Your Head

      California is going to fall into the ocean, just like Massachussetts did........

      February 8, 2012 at 8:18 am | Report abuse |
  6. rybl101

    In 1958 4% of Americans approved of interracial marriage. Now it is 86%.

    In 50 years, all of you bigots that disapprove of gay marriage will be dead and the vast majority of America will think it is perfectly normal.

    Tick tock bigots.

    February 7, 2012 at 5:57 pm | Report abuse |
    • Watcher

      Who cares? If Obama gets reelected America won't exist anymore by 2016.

      February 8, 2012 at 2:40 am | Report abuse |
  7. Truth

    To all the progressive, more successful members of society:

    When you read the ignorant comments of a bigot, relax. They're only so angry because they know they're in the minority of society, the less successful members of society, and that their narrow, abominable interpretations of the Bible aren't in line with the will of God. The greatest and smartest people on Earth, the true innovators who create things that touch all of our lives, and those that will truly be rewarded are all progressive thinking people. And the bigots are just mad because they know their ignorance and lack of intelligence limits their capabilities and makes them miserable. So don't get mad, pity them like you pity an angry, rabid animal.

    February 7, 2012 at 6:02 pm | Report abuse |
    • JohnCRoberts

      Yes, and your ideology works so Well, California is by far the strongest economy, with the Most intelligent Politicians and the Best leaders your methods can buy.

      How is that working out again? Bankrupt much? Which people do you really serve?

      February 7, 2012 at 6:12 pm | Report abuse |
    • borntothebreed7

      JohnCRoberts, you don't even know the proper use of capitalization in the English language. How can anyone take you seriously?

      February 7, 2012 at 6:20 pm | Report abuse |
    • Risky

      Only bitter people point out every tiny mistake. Im sure whatever part of the country you come from makes mistakes too. Mistakes are part of the learning process, if you dont know that then you need a reality check. California and New York are 2 of the most diverse and unique parts of this country. Every new generation from these two states just grow more clever and whitty; where as it seems most of middle america wants to stand still.

      We are diverse, open-minded, broad horizoned, etc. Eventually the rest of the country will have to learn from us instead of degrade us. Sadly it takes money to move forward and improve. Unlike conservatives that want to hold money and call everyone else crazy spenders. We strive for the future, you strive for the past.

      February 7, 2012 at 6:29 pm | Report abuse |
  8. Truthhurts

    "The bigoted minortiy" out numbers activist judges.

    February 7, 2012 at 6:05 pm | Report abuse |
  9. Mr. Izz

    I can understand both sides of the coin here, but the idea that the original vote (which was voted for Prop. 8) was overturned by an openly gay judge (that has had a long relationship with a partner) kind of points to some foul play. Even those in support of gay marriage should be able to see that. There was a major conflict of interest, and the situation should have been presented differently, or to an independent judge, concerning the matter.

    In addition, the people of California must be thinking... "Well, why did I go vote? What was the point? My voice and opinion must not matter. The only way I can make a difference is if I go and vote. I voted, and my vote didn't really count." If I were someone in California that was in the majority of the vote, I would be frustrated, and would be really considering not voting on anything again. Whether they were voting on civil rights or not, doesn't matter. That decision, concerning the civil rights portion of the debate, should have been made before it was on the actual ballot. The problem I see, was the fact that the vote was virtually useless for those who set aside that time to head to the polls.

    I'm not saying that the ruling/change was right or wrong, but what I am saying is that there has been a major breakdown here in the system of state government. Maybe we should step back and verify the system is working properly before more drastic things happen for all parties involved. Not everyone is going to be happy with the final decision, but I feel it would be a good idea to mend some fences along the way to that verdict.

    February 7, 2012 at 6:10 pm | Report abuse |
    • JenniferUCD


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

      Why should it matter if the judge was gay or not? Civil rights should be a given, not something that is decided by the 'majority'.

      February 7, 2012 at 9:22 pm | Report abuse |
    • v3rlon

      but civil rights ARE decided by the majority. Is there something magic that happens at midnight when you officially turn 18 that makes you wiser and better able to vote in the first place? No, we as a society decided that. We even changed it from 21 when it suited us. Both groups in both places thought they had the right idea. Even things we would consider deplorable were "rights" once upon a time. As long as a few in power feel they have the "right" to dictate over the majority of the people, we will be subject to scarry abuses of power (like wars declared without congress, patriot act, rendition, and so on). Politicians and judges MUST answer to the people they represent, and this court failed in that duty.

      February 8, 2012 at 1:34 am | Report abuse |
    • Watcher

      Next it will be a "civil right" for poor people to be lazy and steal from productive members of society. Oh, wait. That's Obama's platform.

      February 8, 2012 at 2:43 am | Report abuse |
  10. borntothebreed7

    Why do "conservatives" espouse patriotism and FREEDOM, while actively working to suppress freedoms? Isn't the United States the country where "all men are created equal"?

    As someone else so succinctly put it on Facebook recently, "If you don't want your own rights taken away, don't take away the rights of others."

    February 7, 2012 at 6:17 pm | Report abuse |
  11. Burbank

    Hooray! What does it mean? It means people should keep their noses out of other people's bedrooms when it involves consenting adults! Glad all these Crotch Police got shot down in flames!

    February 7, 2012 at 6:17 pm | Report abuse |
  12. Truthhurts

    Children are "free" to have their daddy engineered out of their mommies lives.

    February 7, 2012 at 6:20 pm | Report abuse |
    • Butt Hurts

      I wish that my father was engineered out of my life. The guy beat me and psychologically abused me because I dared to be smarter than he was and be able to make something out of my life.

      February 7, 2012 at 6:22 pm | Report abuse |
    • Watcher

      Children are "free" to get aborted. God bless America!

      February 8, 2012 at 2:44 am | Report abuse |
  13. Truthhurts

    Feminist liberal " Father haters" card. Oh boy. here we go.

    February 7, 2012 at 6:26 pm | Report abuse |
    • Butt Hurts

      Yeah, I'm liberal. No, I'm not a feminist, because, unlike you, I own a p3n1s and don't feel it's my place to dictate. And, yeah, I hate the guy who called himself my father...oh, yeah, I was adopted at birth, and given my experience with one parent of either gender, I'm totally in favor of abortion and in favor of gay marriage, because death or a parental unit of one gender was better than what I got.

      February 7, 2012 at 6:31 pm | Report abuse |
    • Flappy

      Truthhurts. I am not sure if you are aware of this but your posts are incoherant. Did you take your meds today?

      February 7, 2012 at 7:24 pm | Report abuse |
  14. Stephen

    I am not really on either side of the issue as I do not live in California. So this ruling literally has zero effect on my life at all. My issue is that people say things like let people live however they want, if they want to marry then let them marry, etc. (which i agree with). However, the same people are furious if Muslim women wear burkahs or men and women are required to worship or eat seperately. If they want to marry and live like that then why should the government tell them how to dress, act, etc. It is strange that the argument of it not effecting you only works one way.

    February 7, 2012 at 6:26 pm | Report abuse |
  15. TheGuy

    Some conservatives talk about government interfering too much and they are the one who are telling these american who they can marry..really grow up and let them live their own life

    February 7, 2012 at 6:28 pm | Report abuse |
    • Carl

      Agreed. Conservatives want to control your social life, liberals want to control your financial life, how you start and run a business, etc. It would be nicer if we had more true freedom.

      February 7, 2012 at 6:38 pm | Report abuse |
    • gorn by any other name

      Carl, let's not be coy. Both conservatives and liberals, by their proxies in corporate America, fully control your financial life.

      February 7, 2012 at 7:07 pm | Report abuse |
    • Watcher

      No, gays are being told whom they cannot marry. There's a big difference in the language. You know, like how adults are told they can't have sex with kids.

      Gays can marry whomever they want as long as it falls within the legitimately established guidelines of what defines a marriage.

      February 8, 2012 at 2:47 am | Report abuse |
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