The Prop 8 Decision: Legalese vs. Equality

heThe other day I wrote that Prop 8 was a masterstroke of evil and legalese. After reading the CA Supreme Court's decision last night, I suspect that some of the Justices would agree with me. There are several times in the document where the Justices note that they had to put their personal feelings aside and look strictly at the legality of Proposition 8. However, in their sticking to the letter of the law they legalized discrimination, and did so knowingly as is made obvious in the dissenting opinion by Justice Moreno.

There were two sticking points that made Proposition 8 stand. The first is that the California Constitution allows for a simple majority to pass an amendment. In the past this has allowed laws like Proposition 187 to pass, a law which denied public education and social services to illegal immigrant families. Prop 187 was ultimately struck down because the judge ruled that it was 'a “scheme” designed to regulate
immigration, an exclusively federal domain.'

This is where the second point comes in. There are no (as pointed out by Michaelangelo Signorile on his show yesterday) federal laws recognizing or protecting gays as a minority class. If there had been any federal recognition, the Justices could have struck down Proposition 8 on that merit, but without it, six of them felt that their hands were tied.

The dissenting vote by Judge Moreno was an interesting read, and naturally I found myself in agreement with most of his points. I thought he made the real point, the one overlooked by the majority in their opinon when he noted:

We recognized in the Marriage Cases that "draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)" (Marriage Cases, supra, 43 Cal.4th at p. 782) "impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." (Id. at p. 784.) Denying same-sex couples the right to call their relationships marriages treats them as " 'second-class citizens.' " (Id. at p. 785.) As we observed in the Marriage Cases, "there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples." (43 Cal.4th at p. 855.)

Considering that most of what was written above came from the earlier decision, I'm stumped that the same body of Justices could reach such a radically different conclusion. Justice Moreno makes some excellent points about how the Justices are not beholden to only those minorities identified by the US Constitution:

California’s equal protection doctrine has not been confined to that of federal Fourteenth Amendment jurisprudence: "[O]ur state equal protection provisions . . . are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable." (Serrano v. Priest (1976) 18 Cal.3d 728, 764.) The equal protection clause of our state Constitution is important as a provision of independent force and effect only when this court extends greater protection under that provision than the high court has extended under the equal protection clause of the federal Constitution.

It appears that there was plenty of precedent for the court to overturn Proposition 8, and I am truly confused as to what motivated the Justices to decide the way that they did. Was it simply political cowardice in the face of right wing media's constant attacks on "activist judges" and a threat by the Christian Right to start a recall vote against the Justices themselves? I'd like to think not, that the Justices would not bow to that sort of political pressure.

I'm trying to convince myself that they were adhering to the letter of the law concerning Constitutional amendments, but in doing so they sacrificed one of their prime duties, which is to prevent a minority class from being mistreated by the majority, or as Justice Moreno said in his dissenting opinion: "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."

So where does that leave us? As I said the other day, the momentum is on the side of the LGBT community. Public opinion has shifted in favor of same sex marriage and will continue to do so as it becomes less scary to the average voter. Voters will overturn Prop 8 in either 2010 or 2012 and this decision will go down as an embarrassing moment in California history.