The Shame & The Brilliance Of The Court



ImageIt’s fairly stunning to read the ruling from the California Supreme Court in the Prop 8 case. The single dissenting opinion was authored by Justice Carlos R Moreno . Reading the rulings by the justices who upheld Prop 8, it’s easy to feel, as an LGBT American in California, that they believe we are less human than other Americans. In the rulings of the justices who upheld Prop 8, they conclude that the amendment is not a revision because…

 "…it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated” in the Marriage Cases, because it merely “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples . . . .”  (Maj. opn., ante, at p. 7.) 

In other words, while they won’t admit that we do not have all the constitutional rights as other Californians, they admit that it’s perfectly fine for the majority to “carve out a narrow and limited exception to these state constitutional rights".  That’s a groundbreaking decision. It means that this court, while it won’t call it discrimination, will allow a majority to tweak the civil rights of a minority. Once that door is open, we all know how  far it can go.




Over and over the justices who upheld Prop 8 refer to the word marriage as mere nomenclature (name, designation). This, despite what they ruled in the marriage cases last year, which granted same sex couples the right to legally marry…

“draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)” (Marriage Cases, supra, 43 Cal.4th at p. 782) “impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.” 

The majority justice’s opinions conclude in the Prop 8 case that it’s only the word we are being denied, that we can still have all the legal rights marriage affords, just under another name. This is in direct conflict with their opinion from the marriage case, as indicated above, which declares the importance of the word marriage to the equality of same sex couples.

Then read the dissenting ruling offered by Carlos Moreno and your sanity may begin to return. Reading his opinion, countered with the opinions of the other justices is like reading an opinion by a child, and then one by an adult. Moreno nails it on the head when he declares that Prop 8 is indeed a revision.

I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.” 

Add to this that all the California Supreme Court Justices have concluded that LGBT Americans are indeed a  Suspect Class, meaning LGBT Americans in California are a group "meeting a series of criteria suggesting they are likely the subject of discrimination", and as such, we are to be protected from the majority rule by means of the Equal Protection Clause.

And as to the "narrow" or "limited" shameful justification from the other justices, Moreno states…

Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description.  “[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . .”  (Marriage Cases, supra, 43 Cal.4th at p. 781.) 

After watching the 3 plus hours of the hearings in this case in March, I came away feeling the same as most others, that we would lose. I based that on the fact that the only criteria the justices were going to use was the complexity of the change in the constitution, which in their minds clearly did not stack up against previous decisions regarding such a question.

 The one thing that gave me hope was their intelligence. If they could argue the technical aspects of amendment versus revision, surely when it came down to making a decision they would consider the actual discrimination in this case.

Clearly, I was wrong.

You can read the complete ruling from the California Supreme Court here: California Supreme Court Ruling – Prop 8 . Justice Moreno’s dissenting opinion can be found on the last 23 pages of the document.

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