What Did the One Dissenting Justice Say About Prop 8?

categories: Gay Boycotts, Marriage Equality

Published May 26, 2009 @ 10:59AM PT

Judges

Lest the news of Proposition 8 be the ultimate buzz kill for today (which it sort of is), it's worth reading the opinion from California Supreme Court Justice Carlos Moreno, who was the only judge dissenting in today's 6-1 decision upholding Proposition 8. Moreno, who was actually rumored to be on Obama's shortlist for the open Supreme Court vacancy that this morning went to Sonia Sotomayor, had this to say:

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.

It's nice to know that at least one Judge has their wits about them. Proposition 8 contradicts California's equal protection clause.

Prop 8 lives on today, but there's no denying the fact that it smacks right up against California's constitutional guarantee of equal rights for all.

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Comments (10)

Thank you to Justice Moreno for standing up for what is RIGHT, and against what is REICHesque. I hope these 6 justices can sleep at night knowing that they are a bunch of cowards, whose rights are next? Women's rights? Latino's rights? Black's rights? Mormon's rights (although that would be nice)?

The Christian-Taliban won this battle, but the will LOSE the war! And make no mistake about it, this IS war!

Posted by Dave Hershey on 05/26/2009 @ 11:14AM PT
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I just posted Justice Moreno's quote as my Facebook status update, thanks for posting it Michael. And thank you so much, Justice Moreno, for standing up for equality even if you had to stand alone.

Posted by D W on 05/26/2009 @ 12:42PM PT
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I think it is also useful to emphasize that the marriages that happened, all 18,000 of them are still legal. The court essentially redefined marriage so that it is not, by definition any longer "between 1 man and 1 woman." This helps to set the stage for the ongoing fight which we knew would exist. Even if the court had overturned Prop 8, the battle for CA wasn't over.
It shouldn't really be news to anyone that the initiative process in CA is horribly flawed, such that a bare majority can wreck havoc on the government. The current budget problems in the state are because of the same problem. Granted, "rights" may seem as if it is a bigger deal, but it really isn't.
Broken system or not, all of these events since November till now have taught us much about how to move forward towards real equality and the pitfalls and outrageous attacks that will be used against us. Time to move on and keep building ground in CA and elsewhere- not only for Marriage Equality, but for greater equal rights for GLBTQ persons in all areas, housing, employment, public accommodations, hate crimes, and military service.I'm not a fan of language used to bash the opposition (like Christian-Taliban) or "war" imagery. In the end, our values ought to be for a separation of Church and State and a respectful country where all are able to live freely. There are many good people of Faith, and many Christians who are not trying to make GLBTQ people second class citizens. There are also many good people who have bought into the myths and lies used by our opposition, but when faced with some truth are happy to support equality.
What disappoints me the most was how lopsided of a decision it was- 6 to 1. There is much to learn from that, and time spent reading the full opinion may be useful. so that future actions are better protected from this type of stuff.
I'm of the belief that judicial action will be an essential part of the struggle for full equality, yet much more stable ground will be made through direct vote and legislative action, instead of almost-evenly split vote court decision.

Posted by Thomas Waters on 05/26/2009 @ 12:46PM PT
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Human rights is an eternal war. We will not win every battle but we will win, just as we always have. Women vote. African/Americans vote. Children can no longer be beaten with impunity. We are evolving into an intelligent and moral animal.

Posted by Tom Bulger on 05/26/2009 @ 01:25PM PT
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Although the California Supreme Court committed intolerance by upholding the intolerant Proposition 8, it's good that Justice Carlos Moreno did the correct thing by voting against intolerance of such a vile proposition. In addition, as Justice Carlos Moreno has correctly pointed out, Proposition 8 is an unlawful amendment to California's state amendment. Furthermore, LGBT equality is and will always be superior to the incorrect view of LGBT rights held by conservatives.

Posted by Edwin Bonilla on 05/26/2009 @ 03:13PM PT
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This is the argument that not a single attorney on our side thought to make. This is the argument that I've been wondering about since the election results came in. I'd like to know why the attorneys and activists on our side have been so cowardly as to ignore our most useful arguments each and every step of the way.

Posted by Tobias Fangor on 05/26/2009 @ 04:16PM PT
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it's extremely sad everybody forgot what God told about this:( and - this is not a war! there should be an equal treatement of personalities and of sexes, and races - true. But this is so different to supporting the sin. Gay marriage is a sin. I know Christian gays who admitted being gays, but also admited this being a sin and chose not to get into any sexual relationships with either men or women, to stay out of sin and this takes a lot of courage, inner strength and, of course - belief. Protecting God's word has nothing to do with being a coward! Not allowing gays to get married is not a discrimination or intolerance or cowardice - it's protection from the sin for their own sake. Since when has speaking and adhering to God's commandments has become a vice???

Posted by Sad Reader on 05/27/2009 @ 02:15AM PT
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Sad reader, you really are sad. It's called living in democratic-republic with an establishment clause that prevents us from writing your religious beliefs into law. Second of all, I don't believe in your god. Why should I be forced to adhere to your religious beliefs?

Posted by Dave Hershey on 05/27/2009 @ 11:29AM PT
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It's really very sad that you think that the laws of the United States of America should be based on YOUR religion.
Your church doesn't have to let me get married, and I don't care, you can keep your exclusive club. I want the same legal rights and protections provided to me that you are entitled to. Anything less is discrimination.

Posted by Jennifer Brill on 05/27/2009 @ 10:13PM PT
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Re: Sad Reader. 1) We live in a democracy where there is separation of Church and State. This was a foundational belief of the founders of our great country, and the issue of what is or isn't sin, is fairly irrelevant to any discourse on the legal rights of people in our great country. As a country, we value the right of people to hold their religious views and we acknowledge, that there is not one single viewpoint, but many diverse and different views about religion, but all stand as separate from any discussion and organization of law and government.2) I am always reminded of the apostle Paul (formerly Saul) who was a devout Jew, and spent part of his life persecuting the early Christians. And then Paul had a "conversion" experience, and he came to realize that his persecution actions had all been wrong, and he is known as a foundational voice for Christianity. For me, it is an easy jump to understand those who persecute the gay community and call our families and our relationships "sin" as people, like Saul, who haven't yet had a conversion experience. Paul was no perfect person, nor did he believe that he had all the answers. One could easily now, look at his writings and think he had an awful lot of it wrong. but the part he had right was that, over time, our understanding of what is real, important, meaningful, and of value can change if we are open to the possibility of seeing God's bigger picture.

Posted by Thomas Waters on 05/27/2009 @ 04:47AM PT
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Author

Michael is the Communications Director for the Human Rights Program at Harvard Law School, and previously was Communications Director for Pax Christi USA, a progressive Catholic human rights organization.