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.

WHAT, IN A NUTSHELL, DID THE COURT DECIDE?

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.

CAN SAME-SEX COUPLES IN CALIFORNIA GET MARRIED NOW?

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.

ARE YOU SURPRISED BY TODAY'S RULING?

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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

WILL THE CASE GO TO THE U.S. SUPREME COURT?

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.

HOW IS THIS RULING GOING TO AFFECT OTHER STATES?

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.

WHAT'S YOUR BEST GUESS ON WHAT HAPPENS NEXT IN CALIFORNIA?

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. Tortfeasor

    You guys should all be outraged by this. Not at the result, but by the fact that federal courts are making it routine practice to review decisions already rendered by state courts de novo. They're deciding all kinds of cases that belong in state courts: it's one step farther down the long slide to a world where state governments are only nominally important and have been replaced by an oppresive, overbearing federal government that is too far removed from local communities to properly govern.

    February 7, 2012 at 7:05 pm | Report abuse |
  2. james

    liberals have run california into the ground with their nutbag policies. companies can't leave fast enough and now they want to foist perversion on people who voted against it.

    February 7, 2012 at 7:06 pm | Report abuse |
    • Butt Hurts

      Since when was being gay in California compulsory? It doesn't affect you, so shut up.

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

      Interesting claim, I don't suppose you have a link to the evidence?

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

      I know that many California companies are moving to Texas! It has actually brought houses and office space back up to 2006 prices.

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

      Butt Hurts?? lol, oh the simplicity of what you are all about.........

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

      well butt hurts ( that cracks me up every time). i have to get back to my normal life so i will leave you to your constant hep c and aids tests that are surely a part of your life and that deep down fear that you are next in line for some life threatening disease courtesy of your "lifestyle"...........

      February 7, 2012 at 7:43 pm | Report abuse |
    • capnmike

      Nobody's "foisting" anything on you...If you don't like gays, don't hang around with them, but quit trying to run other people's lives and MIND YOUR OWN BUSINESS!

      February 7, 2012 at 10:59 pm | Report abuse |
    • AdmiralGod

      james you are a laughing stock. Capn Mike how about putting james in the focsle with the dregs for a bit? What do you think?

      February 7, 2012 at 11:26 pm | Report abuse |
    • Doobie Wah

      james

      REPUBLICANS have run california into the ground with their nutbag policies. companies can't leave fast enough ...

      Fixed that for ya.

      February 8, 2012 at 8:52 am | Report abuse |
  3. JIMMYJAM

    So the will of the people is ignored again! SOOO glad I don't live in California, especially Sacramento...The Liberal Capital of the World!
    All the Carrot Smokers are happy now...There WILL be a judgement day for you as well as the rest of us!

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

      Have a nice Judgement Day! I'll be in reality thanks.

      February 7, 2012 at 7:10 pm | Report abuse |
    • Butt Hurts

      It was still a minority of Californians (52% times the percentage of voter turnout) who voted Yes on Prop 8. Could it be that the will of the majority is that it be overturned?

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

      I guess that you also would affirm the "right" of the white voters in the old South to keep de-facto slavery in effect. "Will of the People" is another name for Mob Rule. There must be some safeguard against it.

      February 7, 2012 at 7:13 pm | Report abuse |
    • Carrot Smoker

      We're glad you don't know the difference between Sacramento and San Francisco.

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

      Sounds as though you are the judger, be careful of what you judge and wish for.

      February 7, 2012 at 7:21 pm | Report abuse |
    • steve

      jimmy, we are in agreement. we are so glad you don't live here as well.

      February 7, 2012 at 7:25 pm | Report abuse |
    • Scot

      As a straight guy who could give a rip about who marries who and who lives with who how can you be the judge and jury for God. Are you taking Peters place at the golden gates ? Who nominated you and your friends to be the keepers of the gate. I guess I did not get the memo from above !

      February 7, 2012 at 7:32 pm | Report abuse |
    • Rainbow Stud

      I am gay, but i have never smoked a carrot.
      Does it give you a buzz ?

      February 8, 2012 at 8:54 am | Report abuse |
  4. Butt Hurts

    Most of the women in St. Louis could be mistaken for men. We're talking serious bow-wows and pound puppies. You might as well be gay there, because it's way too tough to tell the women from men.

    February 7, 2012 at 7:08 pm | Report abuse |
    • sailor

      U R full of you know what. St Louis women are great, might even make a man out of you.

      February 7, 2012 at 7:14 pm | Report abuse |
    • Butt Hurts

      They haven't made one out of you.

      February 7, 2012 at 7:16 pm | Report abuse |
  5. sailor

    I lived in Pensacola, FL, and Memorial Day you took over the beaches and were welcomed not because you were liked or even respected, just that you brought lots of money to spend and we enjoyed taking every penny from you clowns.

    February 7, 2012 at 7:09 pm | Report abuse |
    • Disgusted with a "Sailor"

      "you took over the beaches and were welcomed not because you were liked or even respected, just that you brought lots of money to spend and we enjoyed taking every penny from you clowns." So let me get this "straight" (get it?), you are happy to take these "clowns" money, because it helps you financially (where apparently you don't have or aren't spending money), but you don't believe they have rights? Remember, Prop 8 STRIPPED a right previously granted by the state from a group of people. You know who else started by stripping rights previously enjoyed from citizens? Yep, you guessed it. Nazis. Grow up. And for the record I live in Ca and am happily married to a woman.

      February 7, 2012 at 7:21 pm | Report abuse |
    • Rainbow Stud

      Thats ok Sailor, we can go someplace else,
      and you can go collect unemployment.

      February 8, 2012 at 8:57 am | Report abuse |
  6. WDinDallas

    Califorians need to impeach the 9th circuit court, that or hang them.

    February 7, 2012 at 7:10 pm | Report abuse |
    • Butt Hurts

      Too bad they legally can't do either of those, huh?

      February 7, 2012 at 7:19 pm | Report abuse |
    • VoiceFrmLeft

      Anger and bigotry from the right, a PR booster to the left with every hateful word. It's hilarious that the right can't see this kind of argument is exactly what's making the changes happen so fast.

      February 7, 2012 at 7:21 pm | Report abuse |
  7. tony

    I've been married over 35 years here in California. Nice to see that everyone will soon be able to have the same happiness and social respectability.

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

      Actually, everyone already has exactly the same rights. You're not allowed to marry another man, and neither is a gay man.

      February 7, 2012 at 7:20 pm | Report abuse |
  8. JIMMYJAM

    To Risky...By "Reality" you must mean "Gay" , where you can commit any perversion you want and not have negative consequences.
    That it's 2012 has NO relevance,,, Self justification for peversion is apparent here!

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

      I'm curious as to your definition of "perversion"... does it include Catholic (or, in some places, Anglican) Priests molesting young boys?

      February 7, 2012 at 7:15 pm | Report abuse |
  9. JenniferUCD

    grrr

    February 7, 2012 at 7:16 pm | Report abuse |
  10. Risky

    I get the feeling that sailor is in the closet.

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

      No, sailor won't stay in there. He takes one look at his clothes and goes, "Either this wardrobe goes or I do!", then leaves.

      February 7, 2012 at 7:20 pm | Report abuse |
    • William dodge Florida

      Yea he's gay we made out one hell of a man lover he loves to kiss . Not bad he's very tiny.

      February 7, 2012 at 7:34 pm | Report abuse |
    • Rainbow Stud

      Small minds and small......

      February 8, 2012 at 8:59 am | Report abuse |
  11. sailor

    If you gays in fact thought so much of your self and deviant lifestyle, why get on here an argue. If you're right there is no reason to fight. But you must be wrong to be so upset about everything. I believe in a God who loves you, not just your deviant lifestyle.

    February 7, 2012 at 7:19 pm | Report abuse |
    • Butt Hurts

      And despite the fact that you believe in such a god, you still refuse to follow the word of his supposed son: "Judge not, lest yet be judged."

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

      I don't know sailor. Why do you get on here to argue?

      February 7, 2012 at 7:55 pm | Report abuse |
    • Rainbow Stud

      You seem to do an awful lot of thinking about our "lifestyle"

      February 8, 2012 at 9:02 am | Report abuse |
  12. Truthhurts

    I wouldn't wish upon liberals what they wish upon themselves.

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

      Well, I wish for a pony.

      February 7, 2012 at 7:23 pm | Report abuse |
    • Rainbow Stud

      The only thing i wish for is people like you
      to crawl back in your hole.

      February 8, 2012 at 9:04 am | Report abuse |
  13. Taking all Bets

    Starting a pool on how many years before polygamy and incests are legalized using the exact same arguments used by the LGBT community. My guess? Less than a decade.

    February 7, 2012 at 7:21 pm | Report abuse |
    • Butt Hurts

      You forgot pedophilia. You always have to mention pedophilia in this particular straw man nonsense argument.

      February 7, 2012 at 7:26 pm | Report abuse |
    • Ozymandias71

      Well, Massachusetts has had Marriage Equality for 8 years now, and yet no movement from the 'Polygamy must be legal!' crowd. Better hop to it if it's so important for you!

      February 7, 2012 at 7:37 pm | Report abuse |
    • Rainbow Stud

      Sorry, i dont like throwing away my hard earned money.

      February 8, 2012 at 9:06 am | Report abuse |
  14. JIMMYJAM

    To Carrot Smoker... You must live in one of those aids infested bath houses we've read about in San Francisco

    February 7, 2012 at 7:24 pm | Report abuse |
    • Sailor's lover

      Your sentence structure implies you went to San Francisco and read up on bath houses... Feeling frisky?

      February 7, 2012 at 7:40 pm | Report abuse |
  15. JIMMYJAM

    To Carrot Smoker... You must live in one of those aids infested bath houses we've read about in San Francisco.
    So sorry for you!

    February 7, 2012 at 7:25 pm | Report abuse |
    • Butt Hurts

      And if you knew anything, you'd know that all the bathhouses in SF were closed in the mid-80s. Obviously, a hero of the Moral and Upright did that, right? Nope, it was Dianne Feinstein, the Evil Liberal Senator From California, when she was SF mayor.

      February 7, 2012 at 7:34 pm | Report abuse |
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