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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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. cc3

    There is a problem with all of this God talk, including my reply to your post earlier. 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 8:38 pm | Report abuse |
  2. Jesse R

    In your faces Obama and Mormon Church. I know your views on gay rights are evolving Mr. Obama, but remember there was a time when slavery would have been voted for in this country and a time when interracial marriages were banned. To be fair, my feelings about a President raised in Kenya are evolving as well.

    February 7, 2012 at 8:41 pm | Report abuse |
  3. Bible Believeing Christian

    Go ahead and mock God but remember you been warned. I am sure that when Noah was making the ship that his neighbors made fun of him until the water started to get up into their homes then they knew that Noah was right. So this is plain and simple people who supports gay marriage needs to wake up before the tide of sin come. God will forgive our sins but keep doing those same sins then God will punish us by sending us to Hell. Yes the bible is real and need to be taken literally and anyone who says differently will be on the wrong side when judgment day comes.

    February 7, 2012 at 8:43 pm | Report abuse |
    • 1olddude

      Providing that one believes in that nonsense.

      February 7, 2012 at 8:47 pm | Report abuse |
    • Mark Yelka

      "God will..." "God will..." God will be my puppet.

      February 7, 2012 at 8:48 pm | Report abuse |
    • sqeptiq

      He who bases 21st century social policy on a fictional event from thousands of years in the past, propagated by desert nomads, strains any sense of rationality.

      February 7, 2012 at 8:49 pm | Report abuse |
    • akmac64

      You realize that the bible was written by many different people with different agendas over many hundreds of years. In particular, the new testament gospels were selected and edited by a committee chosen by the Roman emperor, in order to increase the power of the church and Rome.

      February 7, 2012 at 8:55 pm | Report abuse |
    • Inglourious

      Do you believe that all part of the Bible are literally true, or just the parts that coincide with your ideology? I mean, if you are a man, you do not shave or cut the hair around your temples, right? If you are a woman, do you take two pigeons and two turtles for sacrifices to your priest after your monthly cycle? And remember to not eat pork or shrimp, OK?

      February 7, 2012 at 9:07 pm | Report abuse |
    • leeintulsa

      @bible believing christian: worry about you. Why would you worry about me?

      February 7, 2012 at 9:10 pm | Report abuse |
    • Dictionary Thumper

      We may be going to hell, but we can spell believing.

      February 7, 2012 at 9:17 pm | Report abuse |
    • Leather

      F r u i t c a k e, belief in myths, fairy tales, legends of old, and mans interpretation of the divine all fall into one category.
      Ignorance. I am proud to inform you that you are now the leader of this rabble.

      February 7, 2012 at 9:18 pm | Report abuse |
    • Baby Jesus

      I'd imagine that Jesus would be embarrassed by modern day "Christians"

      February 7, 2012 at 9:19 pm | Report abuse |
    • Yawweh

      Dear Bible Believeing Christian, Hello,...it's me Jesus, talking to you through your computer, you have passed the test that I have put forth for you.
      You have done my bidding and will be well rewarded in heaven, look forward to seeing you,
      -Jesus The Christ, Son Of God

      February 7, 2012 at 9:21 pm | Report abuse |
    • Dick Bacon

      Maybe you and Jesus should get gay married.

      February 7, 2012 at 9:27 pm | Report abuse |
    • Biblically Inspired

      I think that we don't go far enough trying to ban gay marriage. The Bible is literal truth!

      We need a national ban on the production and consumption of shellfish and pork! Anyone caught shaving their sideburns must be executed! And we need a national arena for the stoning of all those found guilty of the sin of wearing woven cloth.

      Only when we force everyone in the world to bow before the glorious truth of the Bible and crush them in their pagan ways will we be all be safe from the blasphemous influence of the nonbelievers.

      February 7, 2012 at 9:36 pm | Report abuse |
    • dave

      How about that part of the bible that says that eating shellfish is an abomination? Is that part true too? Have you been protesting outside your local Red Lobster restaurant?

      February 7, 2012 at 9:36 pm | Report abuse |
    • Atheist and Realist

      Crazy, Party of One, Your Table Is Ready.

      February 7, 2012 at 9:42 pm | Report abuse |
    • Steve

      No problem with your faith...problem with your self righteousness. does this mean you have the only "real" religion" Does you mean by hook or by crook, luck as not, you happened to be engaged with the only "real" God and "real" faith and everyone else is wrong? Does this mean you have the moral right to impose your beliefs not only on other people but on the laws of the country as well?

      February 7, 2012 at 9:42 pm | Report abuse |
    • graham

      I forgive you, and pray that God will steer you to a life not dominated by fear and hate, but love.

      February 7, 2012 at 9:44 pm | Report abuse |
    • Steve

      No problem with your faith...problem with your self righteousness. Problem with you thinking your faith should be the nations law. Believe what you want. I'll do the same.

      February 7, 2012 at 9:44 pm | Report abuse |
    • Fn0rdz

      I openly mock your god and the bible.

      February 7, 2012 at 9:49 pm | Report abuse |
    • Brahm

      Time to start believing in the dictionary.

      February 7, 2012 at 9:54 pm | Report abuse |
    • sportreform

      hey, did noah take two of each insect will him as well? I already know he squeezed the dinosaurs in on the lido deck.

      February 7, 2012 at 9:54 pm | Report abuse |
    • edwardo69

      Not pertinent... Your belief only applies to you, and your ilk.

      February 7, 2012 at 9:57 pm | Report abuse |
    • Southern Celt

      Which Bible? You are aware that what Protestants call The Bible and what Catholics call The Bible are two different books aren't you? You also know the Bible did not exist at all until about 400AD?

      February 8, 2012 at 8:29 am | Report abuse |
    • Fearless Freep

      The mind is a terrible thing to waste.
      Too bad about this one.

      February 8, 2012 at 9:33 am | Report abuse |
    • Simon Says

      Great job Noah did, he left behind the unicorns.

      February 8, 2012 at 9:34 am | Report abuse |
  4. Mark Yelka

    Survival of the fittest means to some people that they need to oppress to win. True believers are the worst oppressors. No room for diversity when someone knows they are right and non-believers are wrong.

    February 7, 2012 at 8:45 pm | Report abuse |
  5. makes sense

    When I voted on Prop 8 I was amazed at how short and simple it was. In fact it was the shortest and simplest proposition on the ballot. Even shorter than the proposition to name the dump after Bush.

    Another little fact, Mormons were not originally part of the coalition that put prop 8 on the ballot. They were asked to join after it was already on. While they did help a lot, I feel like the rest of us get overlooked. CA voted, and we voted in favor of the traditional definition of marriage by a significant majority.

    February 7, 2012 at 8:51 pm | Report abuse |
    • Mark Yelka

      And a significant majority opposed interracial marriage.

      February 7, 2012 at 8:56 pm | Report abuse |
    • Caroline W

      Significant majority? It passed 52% to 48%. 2% is significant? Where did you go to school?

      February 7, 2012 at 9:08 pm | Report abuse |
    • david

      interracial marriage is a completely different issue. people of different races aren't immoral or unethical...they didn't choose their skin color. you can, however, choose your lifestyle.

      February 7, 2012 at 9:13 pm | Report abuse |
    • Inglourious

      @david: do you remember the day you chose to be straight, or is this a decision you struggle with every day?

      February 7, 2012 at 9:15 pm | Report abuse |
    • leeintulsa

      @inglourious: sweeeeet..

      February 7, 2012 at 9:32 pm | Report abuse |
    • Simon Says

      How cool is that !

      I cant wait till i can get 51% behind me, and then we can pass laws to
      put all Christians and Mormons into concentration camps.
      Hey, thats fair right.
      Majority rule.

      February 8, 2012 at 9:39 am | Report abuse |
  6. lilred

    "Judge not lest ye be judged"
    Where did I read that?

    February 7, 2012 at 8:53 pm | Report abuse |
    • Southern Celt

      The Gospel of St. Matthew, Chapter 7, Verse 1.

      February 8, 2012 at 8:33 am | Report abuse |
    • DeTamble

      In a religious comic book.

      February 8, 2012 at 9:40 am | Report abuse |
  7. Brett

    Some people are GAY. Get over it and live your own life.

    February 7, 2012 at 8:55 pm | Report abuse |
    • Truedat


      February 7, 2012 at 9:25 pm | Report abuse |
    • Jason Davis

      I know, this is so sad. We really need to increase funding for research on this birth defect. It is similar to downs syndrome and other genetic defects. I guess some are just born to be pedophiles. Who would ever choose to like little kids? Gotta be born that way.

      February 7, 2012 at 11:54 pm | Report abuse |
    • DeTamble

      **** We need more money for education, stupidity is killing us
      See below..........................

      Jason Davis

      I know, this is so sad. We really need to increase funding for research on this birth defect. It is similar to downs syndrome and other genetic defects. I guess some are just born to be pedophiles. Who would ever choose to like little kids? Gotta be born that way.

      February 8, 2012 at 9:42 am | Report abuse |
  8. Tom

    Toobin says the Supremes won't review. Really? They take a case on whether a pro golfer can ride in a cart but can't be bothered with a decision like this that can unravel society? This decision defies common sense and the will of the people. It won't stand.

    February 7, 2012 at 9:12 pm | Report abuse |
    • Ben

      "The will of the people"? Two centuries ago, the "will of the people" kept an entire race in forced bondage, using religion to excuse what was essentially a decision based on personal convenience (I don't really want to work hard, or think too hard about the moral implications of my actions, so I'm just going to use my faith to explain away my slaves).

      One of the reasons that we have divided government is so that minorities can be protected from what James Madison called the "tyranny of the majority". The goal of a civil society is to keep order, and otherwise stay out of everyone's hair as much as possible, so that individuals are free to determine their own course in life. Allowing a simple majority to determine what is "right" can lead to awful consequences. Many tyrants were elected by popular vote, or overthrew previous dictators based on massive popular support. Muammar Qaddafi, for example was extremely popular in Libya at the beginning of his reign.

      A generation ago, California was one of the best-governed states in the union. Now, they just put everything up for referendum, submitting to the "will of the people", instead of to the cold, hard facts. They don't even consider letting politicians do their jobs. Now, the state is a bureaucratic nightmare, tens of billions of dollars in debt. No one can do anything. Why? Because the citizens of that state took matters into their own hands, and voted in for themselves a set of simplistic, overly broad, poorly written, insultingly reductive laws.

      Had they only allowed the politicians to come up with a set of laws that compromised equally between groups, everyone could have had a fair share, and everyone could have learned to deal with their neighbors, instead of ignoring them. There is no balance. The state is being forced to cut taxes and increase benefits simultaneously; how do you really expect to pay for all that? Well, now you've dug your grave. It just kills me that the federal government will have no choice except to use my tax money to rebuild that state after "the will of the people" destroys it.

      February 7, 2012 at 9:57 pm | Report abuse |
    • Jason Davis

      What excuse did the Africans use to enslave their own?

      February 7, 2012 at 11:55 pm | Report abuse |
    • Simon Says

      **** unravel society?

      Eight years ago "you" people, screaming and yelling that Massachussetts was going to burn in hell,
      We are still here, no earthquakes, or riots, everything is fine.
      Grow up.

      February 8, 2012 at 9:45 am | Report abuse |
  9. Phretbuzz

    I guess I should be able to marry multiple wives now as well... and I can marry at 13 year old girl as long as their parents and she agrees... Stupid people who don't know history and how we slip down that slippery slope approve of this.

    February 7, 2012 at 9:21 pm | Report abuse |
    • dave

      Your "slippery slope" argument is juvenile and absurd. Society can draw the line wherever it chooses, and to say that this will lead to things like multiple wives or marrying animals is pretty stupid.

      If your argument is correct then we must ban ALL marriage, since so-called "normal" marriage started the ball rolling in the first place.

      February 7, 2012 at 9:40 pm | Report abuse |
    • leeintulsa

      There you have it, folks. Marriage is a gateway drug. It should be abolished.

      February 7, 2012 at 9:45 pm | Report abuse |
    • banasy©

      I guess you can do anything you want...if it doesn't hurt your dog...PETA will getcha then...

      @Leeintulsa: lmao!

      February 7, 2012 at 9:52 pm | Report abuse |
    • Jason Davis

      Polygamy should be legal as should incest, as long as they are consenting adults. What happens in their bedroom is their business. So society can draw the line anywhere it wants, how selfish. Support the same rights for all.

      February 7, 2012 at 11:58 pm | Report abuse |
    • Southern Celt

      Nah, that's Arizona. Let's keep this contained to California :-).

      February 8, 2012 at 8:42 am | Report abuse |
  10. larry_flynt

    damn qu33rs need to just shoot themselves, being a f@g is just wrong. stick your own finger in your butth0le if you think thats such a fun thing to do. marriage is meant for a man and woman. it was adam & eve, not adam & steve.

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

      Wow, I applaud your originality!!!

      February 7, 2012 at 9:27 pm | Report abuse |
    • edwardo69

      I wish your parents would have gotten an abortion.

      February 7, 2012 at 10:06 pm | Report abuse |
    • Simon Says

      When cleaning your gun, make shure you dont point the barrell
      at your face, and pull the trigger.
      I would be glad to show you how.

      February 8, 2012 at 9:51 am | Report abuse |
  11. kelvinhanratty

    Reblogged this on kelvinhanratty and commented:
    Some more info on thoughts of how this will affect future law, etc

    February 7, 2012 at 9:27 pm | Report abuse |
  12. Steve

    No, I'm pretty sure hell is in the south MOST ALL of the south; And I'm Steve and my partner IS Adam.

    February 7, 2012 at 9:32 pm | Report abuse |
    • Southern Celt

      Well, if this is Hell then there is no reason for you to ever visit or move here, right? Sounds good to me.

      February 8, 2012 at 8:36 am | Report abuse |
  13. james

    For once it would be nice to see comments about this topic that don't mention God or religion and people's beliefs or lack of beliefs in God and religion. One a side note: let's compromise! Allow gay marriage in California and do away with anti-firearms legislation, that way liberal leaning people and conservative leaning people get something out of it and centrists like me can be happy for both sides.

    February 7, 2012 at 9:33 pm | Report abuse |
    • banasy©

      Here you go james:
      Let people marry who they want.
      The end.

      February 7, 2012 at 9:51 pm | Report abuse |
    • Ben

      Too much money to be made in lobbying the point, unfortunately.

      February 7, 2012 at 9:58 pm | Report abuse |
    • Jason Davis

      Thank you banansy, I'm glad I can count on supporting my marriages with two more wives, one of them being my sister. Please vote to legalize incest and polygamy.

      February 8, 2012 at 12:01 am | Report abuse |
  14. Volntyr

    Personally, I wonder if the supporters of Prop 8 would actually want to take this case to SCOTUS. If they did decide to take that route and lose, then it would create a possible path for other states to follow at the Federal level. Think of it more as a Double or Nothing gambit. They might give up their fight here in California and direct their energies towards other states.

    February 7, 2012 at 9:43 pm | Report abuse |
    • Foghorn Leghorn

      *** Why dont you marry a brick wall ?
      You will have found the perfect partner.

      Jason Davis

      Thank you banansy, I'm glad I can count on supporting my marriages with two more wives, one of them being my sister. Please vote to legalize incest and polygamy.

      February 8, 2012 at 10:06 am | Report abuse |
  15. Tim

    Isn't it odd that the same people who object to gay marriage because of their 'religion' also spew venomous hate speech? Religion is a wonderful thing huh?

    February 7, 2012 at 9:46 pm | Report abuse |
    • Jason Davis

      And those who preach acceptance of all also spew hate speech. I guess they only accept those that agree with them. People on both sides are guilty of the same hatred.

      February 8, 2012 at 12:03 am | Report abuse |
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