By now surely you've seen multiple diaries bringing the sad news that California's Proposition 8 has been upheld in a 6-1 decision of the California Supreme Court. That the 18,000 same-sex marriages that took place before Prop 8 passed were also allowed to stand is, unfortunately, small comfort. I know I'm one of thousands of Kossacks who will be working and donating to the fight to overturn Prop 8 at the ballot box as soon as legally practicable.
But to the extent that we're discussing the legal ins and outs of today's decision, I think Justice Carlos Moreno's dissenting opinion deserves some attention. Those--including several legitimate supporters of GLBT rights--who argue that today's decision was correct on the law would do well to review Justice Moreno's dissent.
There's a long tradition of dissenters--often lone dissenters--issuing opinions in landmark cases; the most famous dissents are the ones that are vindicated by history. Perhaps the best-known such opinion is U.S. Supreme Court Justice John Marshall Harlan's dissent in Plessy v. Ferguson, the 1896 U.S. Supreme Court case that established "separate but equal" over Harlan's lone dissenting vote. The fact that Harlan (born 1833) grew up in a slave-holding Kentucky family and threatened to leave the Union army if Lincoln freed the slaves adds no small amount of gravity to his dissent, which predicted (correctly) that Plessy would become as infamous as Dred Scott, the case that declared African-Americans could not sue to protect their rights in American courts. In his dissent in Plessy, Harlan wrote:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
It seems to me that California Supreme Court Justice Carlos R. Moreno has added his name to the list of honorable and prescient dissenters, alongside Harlan, Murphy, Blackmun, and many others.
Moreno's dissent* is available, along with the court's majority opinion, on DKos.com here. It's worth reading in its entirety, if you can make it through the legalese. Some excerpts, which I've stripped of most of the legalese:
The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does. The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters. (Cal. Const., art. II, § 8.) Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspect classification such a fundamental change that it can only be accomplished by revising the California Constitution, either through a constitutional convention or by a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters? (Cal. Const., art. XVIII.)
For reasons elaborated below, 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.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).) The 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. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.
The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 141.)
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.) Prior to the enactment of Proposition 8, the California Constitution guaranteed “this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” (43 Cal.4th at p. 782.) “In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.” (Id. at p. 820, fn. omitted.)
Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But 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 that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to 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. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment.
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.
There seems to be general agreement that this morning's decision from the California Supreme Court is seriously unfortunate. After reading Moreno's dissent, I have a very hard time accepting the contention that the majority's decision was correct on the law.
(* Actually, Moreno's opinion is technically a "Concurring and Dissenting Opinion," because Moreno concurs with the Court's decision that the same-sex marriages that predate Prop 8 should be upheld.)