Jeffrey Toobin brings Ninth Circuit decision on Proposition 8 down to earth

Jeffrey Toobin, staff writer for The New Yorker on legal affairs, wrote a recent piece celebrating the civil rights progress made by the Ninth Circuit in its ruling striking down California's Proposition (the controversial ballot measure banning same-sex marriage), but he simultaneously clarified the decision by arguing that the specific nature of Judge Richard Steinhardt's decision made it far less sweeping (and therefore less monumental in its impact on the gay rights movement) than many had been led to believe.

Toobin suggests that the Ninth Circuit's decision was carefully "tethered" to the "unique facts" of Proposition 8 and this particular challenge to its constitutionality. He writes that Judge Reinhardt "did not rule, as he was surely tempted to do, that there is a constitutional right to same-sex marriage, enforceable in every state in the union." Rather, he tailored his ruling to an issue specific to Proposition 8, which is that the people of California voted to strip a group of citizens of their rights, as guaranteed by the state constitution. It was primarily that fact, and not the fact that same-sex couples be allowed or not allowed to marry that drove the Ninth Circuit's decision.

Toobin says that Judge Reinhardt "crafted a narrow ruling, one that is unlikely to draw the attention of the Supreme Court of the United States." The conservatives on the high court may agree with him, but they don't necessarily form a majority of the justices. How this issue is resolved remains to be seen.