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 The judges said that the peculiar circumstances in California - a right to same-sex marriage withdrawn by a vote of the public - was unconstitutional.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

    I have no problem with what anybody believes or thinks. I have a big problem with those who think what they believe and think should be what I believe or think. Believe what you want. I'll do the same.
    Since when does anyone's religious belief become state or national law? You want smaller government? Get out of the bedroom business. Want to get along with your fellow citizens? Stop telling them that what you think is right is what they should think is right.

    February 7, 2012 at 9:48 pm | Report abuse |
    • Jason Davis

      That is right get out my sister and mines bedroom we are doing what is natural.

      February 8, 2012 at 12:04 am | Report abuse |
  2. spiritrider

    The ninth circuit is a joke. It is the circuit most often overruled by the Supreme Court. If you want to know what the consitutional proper ruling is. It is the opposite of anything the 9th circuit does.

    February 7, 2012 at 10:01 pm | Report abuse |
    • wildwildwest

      Rulings based on findings of law are far more likely to be overturned; this ruling was based on findings of facts and these are rarely, rarely overturned. (Judge Walker's ruling was based on over 80 findings of facts)

      February 8, 2012 at 12:04 am | Report abuse |
  3. Tim from MA

    I'm not sure if anyone from CNN reads this, but a question for Jeffrey Toobin: if upheld and not reversed by the full appeals court or the Supreme Court, wouldn't this ruling also affect Maine, where gay marriage was passed by the legislature and then overturned by voter referendum?

    February 7, 2012 at 10:04 pm | Report abuse |
    • Bee

      No, Maine is not in the 9th Circuit.

      February 7, 2012 at 10:12 pm | Report abuse |
    • Bee

      If by not reverse with respect to the Supreme Court, you mean denial of cert.

      February 7, 2012 at 10:13 pm | Report abuse |
    • America47000

      It would affect any state with this situation because it provides a precedent. Gays can bring a lawsuit in Maine, a judge can point to the California case, and that would be that.

      February 7, 2012 at 10:30 pm | Report abuse |
    • RillyKewl

      I think its the right question to ask, anyway.
      Any legal scholars out there wanna chime in here?

      February 7, 2012 at 10:50 pm | Report abuse |
    • HarvardLaw92

      It can affect future rulings in other circuits if the judges in those cases find the precedent to be compelling, but it is not binding on other circuits beyond persuasive value.

      What Toobin is overlooking is that the 9th left standing every single one of Vaughn's findings of fact. What that entails is that future suits brought by people in Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington challenging their own state's bans will be much easier to prevail. I suspect that the briefs have already been drawn up and were waiting for this ruling before they file.

      February 7, 2012 at 11:48 pm | Report abuse |
    • Anela

      While we are changing the rules of marriage, let's legalize 3 to a marriage.

      February 8, 2012 at 12:19 am | Report abuse |
    • Been There Done That

      No, because it only applies to California State. Even then it's still contentious.

      February 8, 2012 at 12:21 am | Report abuse |
    • Anela

      Next step to change in marriage definition -3. I think I might lead this charge....

      February 8, 2012 at 12:23 am | Report abuse |
  4. leeintulsa

    @greg: umm .. how about none of the above?

    February 7, 2012 at 10:23 pm | Report abuse |
  5. leeintulsa

    the slasher comes..

    February 7, 2012 at 10:29 pm | Report abuse |
  6. TexDoc

    Government shoudl get back out of the marriage business. The government doesn't keep track of baptisms, so why marriage. (1) End tax penalities and benfits to marriage. (2) Custody has nothing to do with marriage, since most children's parents aren't married (either divorce or never married). (3) Inheritance is handled by wills. No matter who you're with simply write a will who you want to get your property. Therefore there would be no need for the government to keep track of who is married to whom. Just saved millions in record keeping. People married for thousands of years without governments.

    February 7, 2012 at 10:49 pm | Report abuse |
    • Mike H

      I agree completely. If churches want to marry people and keep records that is their business. Otherwise, there should be no benefits or penalties to marriage, and any government programs should be directed towards needy children regardless of who their legal guardian(s) is(are).

      February 7, 2012 at 11:15 pm | Report abuse |
    • Luigi

      Marriage is also a legally binding contract. Enforcement of contracts is very much the government's business.

      Getting out of the marriage business creates a serious problem. Many people are already married. What do you do with them? Make them not married? How?

      February 7, 2012 at 11:53 pm | Report abuse |
    • Luigi

      What kind of doc are you? A physician? I hope not. What about consent forms? Hospitals don't treat power of attorney the same as spouse. How do you fix that?

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

      Marriage is a contract and the government should be limited to treating it as any other contract. In other words, just allowing civil recourse in the case of one party breaking the contract.

      February 8, 2012 at 12:05 am | Report abuse |
    • Anny Rabit

      When gays get the same social security rights as everybody – i.e. when their spouse dies, they get his or her social security – then they will stop fighting for this right to marriage. Until then, forget it. Gays pay social security taxes just like everybody else, but are denied the right to their spouse's benefit when he or she dies. It is NOT just about a will. Straight families benefit from the social security taxes gay families pay – and then are deprived of. It is unconstitutional, unethical, and wrong.

      Why do Americans need somebody to hate all the time?

      If gays started saying 'you can't marry because most of you get divorced and therefore are destroying the institution of marriage' – you would freak out.

      Get out of other people's business. Mind your own lives. Go fix your own wretched marriages.

      Go get a life.

      Half the world is starving – there is war everywhere, children suffering, and you are obsessing over the personal lives of people you don't even know.

      It is disgusting. And don't call it Christian, because it isn't.

      February 8, 2012 at 12:35 am | Report abuse |
  7. SATAN

    The Days of Noah are back.

    February 7, 2012 at 10:57 pm | Report abuse |
    • DavidinLB

      You need to get over living in the fantasy past. I think there are drugs for that!

      February 7, 2012 at 11:52 pm | Report abuse |
    • Foghorn Leghorn

      Learn how to swim.

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

    What today's ruling means is that the bigots who passed Prop 8 can suck it and that more people can now have the courage to demand equality. The next couple of years are going to be interesting.

    February 7, 2012 at 11:05 pm | Report abuse |
    • Jason Davis

      We need to give rights to polygamists as well. Why discriminate against them? They're all consenting adults.

      February 7, 2012 at 11:44 pm | Report abuse |
    • Andy Daniel

      I keep hearing the question about "if gays, why not polygamists" and then sometimes "why not children, or sheep, or inanimate objects".

      The truth is, everything gays do and every polygamists do (assuming all are consenting adults) is legal right now. (That's not 100% true, but what laws still remain are rarely if ever enformced. For example, ordinary heterosexual adultery is illegal in NY state). Religious ceremonies in the absence of a marriage license (generally) carry no legal weight, so a group of consenting adults can live in a house together and have whatever intimiate relations in whatever combinations they desire and can call each other whatever they like. That's not the issue.

      The issue is that gays are being told that they are second-class citizens by being denied the right to marry the person of their choice. You can argue that they have the right to marry a person of the other gender (and many Many MANY of them do) but that's like giving me the right to marry another man – it's not a useful right to me since I have no attraction to other men. The only rational for denying this right is a religious one and those haveno place in our laws. The arguments about child-raising are terribly weak – a relative of mine who knew he is unable to have children married a woman who is able to. They both made this voluntary choice. How different is this from a gay man choosing not to have children by marrying another gay man?

      February 8, 2012 at 12:03 am | Report abuse |
  9. William D

    As does California, so does the nation...

    Being that 1 in 6 (soon to be 1 in 5) Americans (This does not include illegal immigrants) live in the state of California, and being the 8th largest economy in the world, exceeding any and every other state in the Union, it makes sense that what California has on its law books, or experiments with based in law, will soon expand to other states and rubs toe to toe on a Federal level. California is a role model state of trial and error. Many things that go well in California have expanded to other states. Three Strikes Laws, Civil Unions, Gay Marriage, Medical Marijuana are just to name a few that have expanded to other states, and currently almost all of those have pushed right up to Washington DC and tested the boundaries of what is and what isnt accepted for a nation as a whole. I think to many people in America, the thought that California is so carefree and willing to trial and error so many different things is scary. Because a large populous votes on rights or discrimination sets the tone for the rest of the nation, that many people dont have a say in. However, those many people are also not the majority of the people voting, they also arent even the majority of people who are educated in civil liberties (regardless if you agree with homosexuality, or gay marriage or not).
    So, the old line goes "As does California, so does the nation" – What happens in California definitely doesnt stay here, it gets ratified, and either manipulated poorly, or ratified greatly and expanded to other states. I am sad about Prop 8 being a discriminatory law on the books, and that rights of liberty and protections and due process have been removed from people based on their genders and orientations, but I am proud to live in the Western USA where we can experiment and try again, and be the pace setter for a nation too terrified to face reality that people are people and everyone has a right to be protected and have the same legal obligations and rights and benefits and punishments regardless of their genders or colors or orientations.

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

    The ruling means that Obama can do his daughters! Dang, that is scary!

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

    It means we lost our right to vote as Americans. The majority lost its rights today. Overturn is the name of the game.

    February 7, 2012 at 11:19 pm | Report abuse |
    • Terry

      Based on your premise, we do not need state legislatures. The Marriage Rights Act was voted into law in California. The 2008 Prop. 8 move was under-written by the Mormon Church of Utah. I propose that churches seeking to lobby in the political arena should be willing to pay taxes on the gross proceeds of that particular church. The Mormon Church spent close to $50 Million Dollars on Prop. 8, and the 9th Circuit Court has seen fit to overturn religious meddling.

      February 7, 2012 at 11:36 pm | Report abuse |
    • Christopher

      The absurd injustice of calling on the majority to vote on the rights of a minority. This is what has been overturned here David.

      February 7, 2012 at 11:40 pm | Report abuse |
    • Peace

      Civil rights should never be voted on. It's not something which should be subjected to popular vote.

      February 7, 2012 at 11:41 pm | Report abuse |
    • Leo

      No, it means you never had the right to discriminate in the first place and someone finally called you on it. That's what today means.

      February 7, 2012 at 11:41 pm | Report abuse |
    • ohoh

      Terry, I'm pretty sure the Mormons represent a fairly small minority in California as well as gays/lesbians. So that means that many more people voted for the initiative than the Mormons did. Maybe you'd like to go after all the other religious organizations that were for the prop. as well? Maybe your own perhaps?

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

      No, you still have the right to vote, but not on peoples civil rights, bigot!

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

      The majority didn't just lose it's rights, just a measure of its tyranny. No one should be able to vote your rights away. That's why it's called a JUSTICE system.

      February 8, 2012 at 12:12 am | Report abuse |
    • BRi

      @Terry I'll echo what steve just posted. Check your facts. Mormons donated not the Church. Also go back an check who voted for Prop 8. Speaking of Equality I'll be waiting for anti-Catholic and anti-african-american comments since if you remember they showed up in large numbers to support and pass Prop 8.

      February 8, 2012 at 12:32 am | Report abuse |
    • America47000

      It's hardly a civil right. As in not at all

      February 8, 2012 at 1:35 am | Report abuse |
    • Foghorn Leghorn

      The only thing you lost today was the right to be a bigot.

      February 8, 2012 at 10:19 am | Report abuse |
  12. Terry

    This was an excellent assessment by Mr. Toobin. He is correct. This was a State's Rights Issue in California. The Supreme Court will not review or proceed with this appeal. Human Rights should be everyone's common goal.

    February 7, 2012 at 11:32 pm | Report abuse |
    • HarvardLaw92

      I disagree. The judges in this case punted in order to avoid addressing the larger constitutional issues that were / are in play. I also take issue with his contention that SCOTUS won't take it up. It only takes four votes to grant cert, and I suspect those 4 votes exist on the current court.

      February 7, 2012 at 11:53 pm | Report abuse |
    • America47000

      It was a state's rights issue before the 9th circuit got involved. But they are a Federal court. That makes it Federal precedent. The Supreme Court has to step in to overturn it or else every legitimate political process in this country is threatened by judicial zealots. The only people who actually followed the rules here were the people who got Prop 8 passed.

      February 8, 2012 at 1:39 am | Report abuse |
  13. Mike

    Every NFL fan knows there is a Santa Claus – it's a town in Indiana where the Bear's QB grew up.

    February 7, 2012 at 11:34 pm | Report abuse |
  14. Lover of Freedom

    Thanks for posting! This was so helpful... Either way I believe we have come so far as a nation... Such a great day with more to come....

    February 7, 2012 at 11:40 pm | Report abuse |
    • Jason Davis

      That's right the polygamists get their rights next. Then the people who support incest. As long as they are consenting adults it is fair. Support fairness for all. I got my next two wives selected, one is my sister.

      February 7, 2012 at 11:47 pm | Report abuse |
  15. ohoh

    This makes a whole bunch of sense. You have millions of people vote on something, a decision is made by the majority. Then a few judges get together and overturn the law? Why then do we bother voting at all? The motion has passed people, let it rest, let it rest. It doesn't matter what you want.

    February 7, 2012 at 11:48 pm | Report abuse |
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