Tuesday, May 26, 2009

From Justice Moreno's Dissent

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.


john said...

If someone wants to start an effort to recall Justice Kennard, I'd support it.

IT said...

Read this blog blog for an argument that this will prove to be a Pyrrhic victory.

Voters thought that they were putting an end to gay couples being able to take a legal step that gave them the privileges and immunities of marriage. They thought that they were undoing In re Marriage Cases. What the Supreme Court said, essentially is: "OK, public, we will give you the ground that we technically have to cede -- and not a millimeter more. Except for the one thing that you have specifically forced us to change, In re Marriage Cases stands as we wrote it. Except now it's not a 4-3 decision, it's 7-0."

JTurner said...

susan I'm so sorry. This is heartbreaking. And I am concerned that this does open doors to allow the majority to tyrannize the minority on many, many issues.

Karen said...


That is good to read. Thanks. I also think that this will propel many into activism that would have never considered such an action before Prop 8. I hope for the day that we can look back at the outrage of Prop 8 as the turning point for full equality. I wish it could have come without inflicting so much pain on so many.

Henry Greville said...

Forget about the judges for now. The only real thing that will let things progress and stay progressed in California is for the will of the people to change and stay changed. It's ALWAYS going to be political, not judicial: that is, working to keep at least 50% of the votes plus 1 on your side.

john said...

There is a fair amount of talk of a boycott of California and California products in the various comments on 365gay.com. Although I live here and I'm not leaving, I might just support one if it were to develop.

IT said...

No, forget boycotts. Now is the time to mobilize and change it.

We CAN be the first state to approve gay marriage by popular vote in 2010.

That should be what everyone works for!

Donald Schell said...

As a straight, divorced and now 34 years remarried Episcopal priest, there are conversations about ecumenism, about what it takes to keep the conversation open to reunion with Rome (!) that I sometimes hear with pain, sometimes annoyance, sometimes amusement. I thank God we're not going there, because I'd be baggage over the limit if we did. And that's not in the conversation. That's the closest I come to a response in my own gut to Proposition 8. For one degree of separation, 8 scorns my friends, people whose love and the way their love sustains their vocation and commitments beyond their life together make a huge, godly difference to many, many people, including me.

I've appreciated all the nuance here and elsewhere that people have brought to reading the decision. I really like the 7-0 reading of how the decision (including Moreno's dissent) limit 8 and reinforce the court's earlier decision.

I'm also moved at the reflections of two of my gay clergy friends on other blogs -




Justice Moreno's decision pushes me and us to ask how we working to overturn 8 could be a step in taking California back in the direction of not marginalizing anyone - schoolkids, the poor, undocumented immigrants, etc.

Thanks for the richness of the reflections here.

Donald Schell