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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    Toys R US same as Gays R US. Both silly and for the lame minded.

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

      So is the US Marine Corps, but no one complains about that.

      February 7, 2012 at 7:28 pm | Report abuse |
  2. sailor

    Butt Hurts you are just too d–n stupid to talk on here. Get some brains before you come to play with the big boys.

    February 7, 2012 at 7:27 pm | Report abuse |
    • Butt Hurts

      At least I can spell "damn" without fear of some sky being striking me dead with lightning. Come talk to me when you decide to leave the 13th Century.

      February 7, 2012 at 7:29 pm | Report abuse |
    • William dodge Florida

      Sweetie your not so big but I still love you please come home to Florida gay pride Orlando good times we had.

      February 7, 2012 at 7:37 pm | Report abuse |
    • Sailor's lover

      Ah, Butt Hurts has you down, Sailor.

      February 7, 2012 at 7:42 pm | Report abuse |
    • Dirty Deeds Done Dirt Cheap

      Hey Sailor,
      Pull your finger out of your nose,
      your getting snot all over the keyboard.
      Pull up your pants, spit out the cheetos
      and get some fresh air, you have been in the basement
      (and the closet) too long.

      February 8, 2012 at 9:12 am | Report abuse |
  3. james

    butt hurts, in some ways i feel sorry for you. to have to look in the mirror and know you are a biological error and that deep down you know that your lifestyle is wrong.............

    February 7, 2012 at 7:33 pm | Report abuse |
    • Butt Hurts

      I don't have to look in the mirror and see that I'm sort of moral error because I can never live up to some hypothetical standard formulated by a bunch of Iron Age and Dark Age nutbars. You want someone who loathes himself because he's human? Read St. Augustine sometime.

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

      Wow james – such a personal attack. Pathetic.

      When God created him, do you think God made a biological error? That's what you seem to be saying – that God made an error.

      Quite an ego you have there – to think you know whether God made an error or not.

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

      You do understand that bigotry (including religious bigotry) is a mental illness? Get some help and soon.

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

      james. Is that what you see when you look in the mirror?

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

      So since you're an ignorant religious zealot, that means you believe in Creationism instead of Evolution. So that "biological error" is the fault of God. So if God created him, and God is all-powerful and perfect, why did he create such a "biological error". You can't have it both ways. God can't be the perfect Creator and then make people whom you deem inferior and less deserving of equal rights.

      February 7, 2012 at 8:09 pm | Report abuse |
    • dear james

      @James: I cannot imagine how you might be feeling looking into the mirror...all this hate and self righteousness and you can do NOTHING about it...like a looser

      February 7, 2012 at 8:19 pm | Report abuse |
    • xrk9854

      Stop being such a Neanderthal. Gay people exist, get over it. By the way I'm straight and have no trouble with gay people. Gay people aren't the problem here, bigots like you are the problem.

      February 7, 2012 at 8:26 pm | Report abuse |
    • cc3

      Biological error? For those who use the God argument, aren't we made in God's image? Doesn't that mean God is at least partly gay? Why is it that you people against all of God's children having freedom want to make God so small?

      February 7, 2012 at 8:33 pm | Report abuse |
    • Thomas

      Dont even respond to him that would give his post credibility.

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

      The will of the folks just got thrown out the window. No mention of that here but is no surprise considering what news network I'm on

      February 7, 2012 at 8:36 pm | Report abuse |
    • cc3

      There is a problem with all of this God talk, including my post right above. The point is that we construct God and we make a God in our own image. We should, as one Episcopalian bishop said, take these religious texts "seriously, but not literally." We construct God to be meaningful to our times, through what Gordon Kaufman termed "constructive imagination." We need a God that speaks to the realities of our times. There is no one image of a "true" God. We have to dare to challenge what and who God is, and do so constantly. There is no "one-size-fits-all" God, that is the same in all times and all places. Why limit God that way?

      February 7, 2012 at 8:36 pm | Report abuse |
    • Tim B

      @cc3 being gay is a genetic defect, much like being mentally handicapped. If there is a God, he probably isn't mentally handicapped.

      February 7, 2012 at 10:44 pm | Report abuse |
    • Jason Davis

      God or nature made them to like the same sex, but didn't bother to give them the ability to procreate with one another, yep, that sounds natural. Sounds more like a genetic birth defect.

      February 8, 2012 at 12:07 am | Report abuse |
    • Dirty Deeds Done Dirt Cheap

      Every once in a while a genetic mistake happens.
      James is proof.

      February 8, 2012 at 9:14 am | Report abuse |
  4. Sawwy Chalie

    Republicans ain't too bright. Evangelicals are even dumber. Both are worthless human beings.

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

      Just because your gay doesnt give you the right to call them "dumb" or "worthless." Just like its not right for them to call you stupid names. Grow up. Accept that there are differences and shut up.

      February 7, 2012 at 8:37 pm | Report abuse |
    • Jason Davis

      Way to show tolerance to others while asking for tolerance from others. Hypocrite.
      Tolerance is a two-way street, try giving that for which you ask.

      February 8, 2012 at 12:09 am | Report abuse |
  5. Joe Six Pack

    This is it.. The world will implode, the skys will catch on fire, the oceans will boil over and we'll all be doomed to an eternity of hellfire. If that doesn't happen, then I guess God is ok with adults having the freedom to live their lives without other people getting all bent out of shape about it... moving on..

    February 7, 2012 at 7:40 pm | Report abuse |
  6. Reality

    So much for the people. Why even have elections? Let's just let men in robes write all the laws and tell us right from wrong.

    February 7, 2012 at 7:45 pm | Report abuse |
    • Flappy

      Men in white robes and hoods bearing crosses?

      February 7, 2012 at 7:58 pm | Report abuse |
    • jetw

      One of the reasons we have judicial review is to protect minorities from the majority, particularly where discrimination is concerned. Just because the majority may want to discriminate doesn't mean they get to infringe on the rights of others...and that is precisely what Proposition 8 did!

      February 7, 2012 at 8:07 pm | Report abuse |
    • TKO

      I bet you'd change your tune if California had voted to forbid some sort of religious practice or reference. Then the "so much for the vote of the people" argument would go right out the window. Just because a state votes on something doesn't mean it will or should stand as law. This is one of the foundational principles of the country you live in–are you an American or not?

      February 7, 2012 at 8:15 pm | Report abuse |
    • CAL USA

      You do realize that a majority of the folks who were allowed to vote in the pre-Civil War South were in favor of slavery, don't you? By your standards we shoud have honored that "democracy". The Bill of Rights is specifcally intended to protect the fundamental rights of the minority against the tyranny of the majority.

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

      You do realize that the majority of people in the pre-civil war south did not own slaves or engage in the slave trade.

      February 8, 2012 at 12:11 am | Report abuse |
  7. RealityChecker

    Good idea liberals. Keep attacking the majority of Americans and then learn your lesson on election day.

    February 7, 2012 at 7:45 pm | Report abuse |
    • Flappy

      I get the feeling you think you are a part of the "Moral Majority" which was never very moral and certainly never a majority.

      February 7, 2012 at 8:00 pm | Report abuse |
  8. RealityChecker

    Liberals know they can NEVER get the majority of Americans to support their nutty ideas, so they have no choice but to force their positions onto an unwilling America. That's why liberals worship dictators like Castro, Chavez, etc.

    February 7, 2012 at 7:50 pm | Report abuse |
    • SFC Mike

      That's right, a bunch of evel libruls are forcing you into a gay marriage. Why they just told my wife and I we have to split and I have to marry a man and she has to marry a woman. Evil libruls. If you don't like gay marriage, don't marry someone of whatever gender you are. Real toughie there.

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

      How stereotyped. I support gun rights and think abortion should be avoided, but in yr twisted mind I guess I am a liberal. Try sucking ye own wiener.

      February 7, 2012 at 8:12 pm | Report abuse |
  9. George

    It means increased taxes and increased medical bills for everyone................ nice!

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

      You don't think Gay men pay taxes? Married people get a tax penalty.

      February 7, 2012 at 8:02 pm | Report abuse |
    • cc3

      That post is ridiculous. Just shows a level of stupidity that we all need to move away from.

      February 7, 2012 at 8:40 pm | Report abuse |
  10. Bob

    At first, I was against gay marriage. Mostly because I didn't want to have to divorce my wife and marry some dude. Then someone explained to me that's not what the law says. It's only that if you are gay and want to marry another gay dude you can. Then I didn't understand what all the fuss was about.

    February 7, 2012 at 7:55 pm | Report abuse |
    • America47000

      To those who don't know any better, it's about gay marriage. But it's really about the legal process, or distortion of it

      February 7, 2012 at 10:32 pm | Report abuse |
  11. raynardo

    Many of these replies sound like the vanity press of the demented!

    February 7, 2012 at 7:57 pm | Report abuse |
  12. joebob

    It means humanity is a step closer to treating people with equality, rather than prejudice learned from fables brought about in the dark ages.

    Yay CA, we do rock!

    February 7, 2012 at 7:57 pm | Report abuse |
    • makes sense

      CA didn't do it, a couple judges did it. CA voted to keep the definition of marriage as between one man and one woman.
      YAY CA we did the right thing.
      BOO judges, you trampled on the voice of the people.

      February 7, 2012 at 8:31 pm | Report abuse |
  13. Old man Tim

    Let's see......going against the will of the people......so that means that we should have never given civil rights to African Americans......we should have never given women the right to vote.......slavery has biblical support therefore given to us by God........Oh, if only the will of the people had prevailed. We could discriminate to our hearts content "cause it's the will of the people. ....yeah, right

    February 7, 2012 at 8:12 pm | Report abuse |
    • America47000

      You are citing situations in which all those situations were rectified through legislation. That is the very definition of the will of the people. They vote. Laws change. That's how the constitution says it is supposed to work. Not judges inventing rights for people, and then nullifying valid legislation when it changes their guidelines.

      February 7, 2012 at 11:18 pm | Report abuse |
  14. TV

    Devide....and conquer....
    a house devided ...shall fall...
    who ( ask yourself )..is behind the devision???? ( and to all you facs out there...don't get too worked up because i used the word "behind " here...lol

    February 7, 2012 at 8:16 pm | Report abuse |
  15. truthknower

    The most important message you’ll ever read: For us to get to go to heaven (and be made right with God), we must simply place our faith (belief/trust) in that Jesus Christ died for our sins (wrongs against God), was buried, and came back to life the third day after His crucifixion, thus making Jesus our Savior (the One Who paid for our sins) and Lord (equal to God because He was sinless). If we have true faith, we will let Christ be Lord of our life (thus telling us how we shall live) instead of us deciding how we’ll live without regards to God’s will as we used to live.

    February 7, 2012 at 8:24 pm | Report abuse |
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