The Lone Dissenter in the Prop 8 Ruling

Filed Under Court Cases, Gay Marriage, Legal | May 27th, 2009 

Justice Moreno’s Concurring and Dissenting Opinion on the constitutional challenge to Proposition 8.

California Supreme Court NewsSan Francisco, Calif. — Yesterday, (May 26, 2009) the California Supreme Court, by a 6-1 vote, rejected a constitutional challenge to Proposition 8, an initiative measure adopted by the voters at the November 4, 2008 election that added a section to the California Constitution providing “Only marriage between a man and a woman is valid or recognized in California.”

The court also unanimously held that the new constitutional provision applies only prospectively, and does not affect the continued validity of the estimated 18,000 marriages of same-sex couples that occurred prior to November 5, 2008, when the new constitutional provision took effect.

The lone voice of dissent in the Supreme Court came from Associate Justice Carlos R. Moreno.

In his concurring and dissenting opinion, Justice Moreno concludes that Proposition 8 is not a lawful amendment to the California Constitution because it alters the equal protection clause to deny same-sex couples equal treatment, explaining 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.’ ”

Justice Moreno points out that the equal protection clause is “inherently countermajoritarian” and observes that “there is no ‘underlying’ principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority.”

In Justice Moreno’s view, “[d]enying the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection,” but adds that “even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment . . . . Promising equal treatment to some is fundamentally different from promising equal treatment for all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights.”

Justice Moreno declares that “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.”

He states that “[t]he rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities” and “weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

Justice Moreno’s full concurring and dissenting opinion can be found in Supreme Court Docket #: S168047, starting on Page 151 of the PDF file. The opinion is filed here.

Source: California Supreme Court

Related Link: Justice Moreno’s Bio at the California Supreme Court

Related Posts:
- Calif. Supreme Court’s Rejection of Same-sex Marriage
- Video Responses To Prop. 8 Ruling