Proposition 8 to Stay

So the California State Supreme Court has ruled that Proposition 8 can stand. I’m not going to rehash old arguments – I think we all know which side we sit on, so I’ll show you dissenting Justice Moreno’s opinion instead:

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.

I too fail to understand how the will of a hostile majority can be more important than the equality provision of the state’s constitution, but for now we’ve sadly moved beyond that argument. San Francisco Mayor Gavin Newsom is entirely right when he says:

It is up to every single one of us who supports marriage equality to reach out to those who still disagree with our position and have a personal conversation about why it is so important to treat every Californian equally.

So get on with it, and explain why equality before the law trumps ‘God’s law’ every time. Harvey Milk showed the way – we must all live up to his example!

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