26 May 2009 ~ 0 Comments

Morons of the Week: California Supreme Court Chickens Out on Gay Marriage

With a 6-1 vote, separate but equal was upheld in California.

Congratulations Californians, the ‘will of the majority’ to take a particular category of people and deny them civil rights is going to stand.

The California Supreme Court, no matter what it proclaims, overturned itself with these words:

Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship. Thus, except with respect to the designation of “marriage,” any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion. Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution.

Translation:  It’s alright for the voters of the state to carve out exceptions to certain civil rights afforded to minorities that are supposedly protected by the Constitution.

What are you people smoking?

Justice Moreno, in his concurring but dissenting opinion, did state:

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.”

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.”


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.

So the California Supreme Court decision comes down to this: Sexual orientation is a suspect class but the people can write discrimination against this suspect class into the Constitution. What prevents voters from exercising the tyranny of the majority and doing this injustice to other minority groups in the state? The California Supreme Court ignored the possibility of this, saying there was NO NEED to consider this fact.

I personally wish this issue would go away so the ‘gay movement’ can focus on other pertinent matters. Supporting a movement to uphold a regressive institution like marriage gets tiring.

I used to say that I am from California with a lot of pride. That’s certainly been stripped.

But there is hope for marriage equality advocates in California –

Yes on Equality – 2010

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